SUPREME COURT.—CRIMINAL BUSINESS.

Otago Witness, Issue 569, 24 October 1862, Page 5

SUPREME COURT.— CRIMINAL BUSINESS.

(Before His Honor /.Ir Justice Gres>ou.) Thursday, 23th October, chaegk op kape.

Michael Malony was indicted for having on the 20th August, at Wetherstone's, commuted a rape on Marry Aim Smith, and Patrick Kinnary was charged with having been present' aiding- and abetting. Mr. Barton defended the prisoners. All the main facts of the case were published in Tuesday s issue, they having been stated durin"- tlie trial of the prisoner for an assault, with intent to m.um, upon Patrick Thomas Monk, a miner The .shoit facts are these:— > ;n the 20th of August Mis Smith and Monk went together into Wetherstone tow n'-hip, she wanting to shop. They callc. 1 at the hurekn Hotel. There Kinnai-y went np to Mrs Smith and said, '• J think you're my little wife;" and she turned away without replj ing-. Monk and Mrs Smith went on to the Wavciley Hole', and there both prisoners were pnsent, drinking and making a noise Munaglian, landlord of the Southern Cross, offered to lend Monk a candle and a bo) tie (to use as a lantern) and to show him and Mrs Smith over the bad places on tne road. He went with them to the foot of the firs] hill towiuls the diggings ; and soon nfterwards while {fomg up the hill, Monk received a blow ou the right temple, whic'if. ilcdhi-n. Mrs Smith swore that tins bluw was snuok by Kinnary, with a long and be.ivy stick, and that be rene.tted the blows Malony had, meanwhile, seized Mis Smith, but failing- to throw hrrdown, he called out, " P.a, bring the wad<ly V Kinnary replied, " Can't you ma'iacre her 1 ! I'll .scon settle her, as I have settled this fellow, and I ye done tor him." He came aero.-s and (rave her a violent kick on the thiph, which caused her to fall ; and then, while Kinnarv stood over her with a, st'ek swearing be would k*dl her if she was not still, Ma,' lony effected bis purpose. Two men bad come up previously, bin they not heeding Mrs Smith's entreaty,— "For God's stke will \ou protect me from violence'" ami there's a man nearly killed as well "—turned as soon a< Kinnarv bad spoken to them, and went on their r-.ay. Monk bad by thi- time crawled to the shelter ot a "race," and whi'o there he saw a man come fovvardh him flourLshiug a stick, and shoutin-r Where's that wretch, til I've -done for him i • ihat man turned to speak to the two comhut up the bill, and the lit: lit which he carried enabled Aionk to see his face, and to be sure that he W us Kinn-iry._ Malony and Kinnary force I Mis Smith along tlie bilJside for a short distmice, and complied with her request tb..t they would get her some water. Kinmry then attempted to throw her down. She beu-gr d him to de ist, saying that .she should die if further molested; but he vowed that die or not she should go no further, and be perpetrated an outrage upon her. Aftei wards Malony lepe.ited the offcnee • and it was also committed by Mai tin Biogan. who happened to onie up at the time. Kinnary am-eed to show her to her tent, after arid 113 " Will th'Te be any one there 1 " and heinir told " No." She partly opened the door, and although her husband and another man was in the tent she called to Kiumu-y that all was right, and be entued. She jumped up, placed her back aprains' the door, and sai<t " That's, the man that's neailv killed Monk, and has greaily insulted me, as I'll explain presently." Kinnary tried to break out at the back of the tent, bufr failed, and the other men induce^ him to be quiet after he had threatened to have the place mobbed. Mrs Smith ran and roused some neighbours, and Kinnary was taken into custody ; Malony being arrested in his tent soon afterwards.

The Crown Prosecutor, in sitting the case, sug eeneilthat Monk's havinpr been able to remove and hide himself, before Kinnary returned flourishing his stick and dhoutiiiff about " duin<>" for that wretch, possibly, or even probably, saved the life of the pro«ecutrix ; for. had they believed that Monk was dead, Mi" prisoner* might have done what had been done in similar cases-take away the life of Hie victim of their usto, so as to picvent tlie possibility of their outrages being proved against them. Monk having escaped, tins motive could not operate. Mrs Smith's object m inducing Kinnary to conduct her home was clearly Huk she might get him into custody. His going

misrht appear hazwious, but he wa« tnld tiiat there would be no one there ; and he would, no doubt, perce've tluit if he coul I remain s-m- rime ia her tent ale.ne with her that eiremustinee would go fa lo negative any e!i .rge that he had previou-ly committed up m her an a«s; lU lt with violence-. Fortunately, he fell into thetiap.

The evidence taken in the trial for assault was r«' I by the Jud^e, and each witiies, was further e-\-aiuined and cross-exaiuined.

Nolbii'g of importinc" was elicited fiom Monk

Mi.-y Ann Smith gave further evidence, which cannot be publr-hed. She positively denial that she had ever had improper intimiey witli Monk. A long series of questions was put as to hm- life in the clou ft-!, prepantory to tlie c.illi-ic of «ilne^-es for the defyiee. She said hbe was immr.iut of, or denied all that vms suggested or iniputcd to her.

Dr S. Anderson, who said bo had constantly been in attendance uj on Mrs Smith sine d tl c -23rd August, was confident that she had h 'en subjected to "ivat: violence, a'l api^arancjs l^ing c insistent with" the ide-iof i-apj having been euniurtted.

Mrßaitin addiessed th« jury for the prisoners He commented upon the difficulties inuident to bis position, hm to whi.Ji a»i emicynt autlionty had decared that tbo chaige of lape -.v.iseasv to make, h u<] 1 > prove, and h.-idcr to defend. In 'this cas» thue >\er<- special dilihalties. I[ e could not deny that Monk wa« vaulted with a view to getting him" out of the way ; but the question for the jury was whether there was such a n sjstancc on the pros' cutiix's part a> lo cjnst lute rape, or whether Kmnirv's Roin^ to her tent -subsequently did not that, from wliat he knew, or fiom coiimiou repute, as to her ch.uacter, liere.'.'U- led wliac liad pa-sed as an oiuiuarv every tiny oceui-i-ence.

The following witnesses were railed :

Michael U'Brieu said that became to Ota^o in Decomber l..st. In August, be was away to Coromaudel. Malony had l,e"n a mate of his for s.-ven years, and Rimi.'uy for th" U ur mouths prior to hi.s stnitiii" foi Coromaiidel._ They did pretty well. Ma!om was a hard-working industrious ma'i, not given to d in'%, and (as i c always thought him) (juiec and or-.lirly! When In; eaine fioiu Cmomnndel he went urn to G,i brier.s(rti!'y, and on his- return to lUmedin! he saw Mr Smith at t 1 c Bendigo Jio:irdip«r Uoi> c. .Sheaske 1 whether h<- thousbt the prKotui^ lia I anytrionds v G-ibriel's. He.siid " YeV and sbesiidsbe thought not, becitiseif theyh-ul, some of them woul t h.uecome to her before s] le «enito tlie Gabriel's Police C»urt an.l settled this atr'iir. She aNo said that she b,i'l thought the reason he came to the «ame iioardinnhouse as herself, was that lie had come to make a settlement ; an«l only on TueMlay uight she said that she would have nm!,- a s>ttlei:ienf, had in spoken about it a few day* beioiv, but that now it was too late. By the Ciown Prosecutor: He inner male any proposal to her abait sfttiing tin, matter- bhc buiil that Mr t^mith hid told her that he (witness) had come for the purpose. 11.- fiisf li-arO of thi.s aiF.iir wbui be returned to Dunedin, and after ho imd si^n the piiMiaers m gaol, he went to sco how the claim belonging to thun w.is pouig on. lie found it deafitetl, and the 1 oxes and thin.s tal.ea away, an 1 so he thought he would retmn and sco now the chap-> got on, before he .set in to work. lie went to the Uendu»> simply because iie knew the lainllonl four oi Hve jeai-s in Bend mo. He (rho witness) told yiuith that be thought h could 1-ave the a.'Faii- if lie had b^en on (xjbriel's at the time, but thai it was no use trying now. lie had not brought a soldier's wife or any oMier female from Auckland.

Re examined : fcjiuith frequently spoke about the afl'.tir.

Alexander Ross, a prisoner in tlie aaol, was placed in the dock, an 1 a=ked if iie knew the pros cutrix, whu was be-ide liim. lie ajiswe.cil. "I m\er saw the woican in my life befoie." lie also said that be did not know Mr Smith.

Mr Barton, to clear himself. v\i,hcd to state that on th' 1 pi e\ ion* evening in tiie Ro^s told him evervtbing which he hart put to Mr* Smith as to her foimer hie. Of eouisj. be ha 1 had no oppoilunity till now of confronting Ko-s with Mrs Smith. Martin Biogan (the ihiid man charged with the rape) v,as brought up in custody, and detii cd a number of dismistini; act.-, which be said took place in Smith's ti-nt about a fortnight bef'oic the 20th August. The ohjeet was to prove that wth the wit-iit--s and others Mis Smith had been simply a common p restitute.

By the Ciown Prosecutor (after being cautioned that he was not bound to answer any ques ion tending to criminate hi-nselt ) : On the lii^ht ot the 20t'i August iiefiif-t saw the pnsoners and Mrs Smith on Wetheistone's. coinin_'downtowardstlie Caledonian Hotel. Hi th°n went to his tent, but afterwards, as Malony was drunk, he went to th<: hotel to get Him home. He was not there ; but a hit up the hill, lie met Malony and Mrs Smith coming down together. He was pr-f-lty drunk. They all three wont down to the track Into the gully, towards home. He dM not tee Kiunary th<n Presently afterwanls he saw Kinnai}', who lind a bottle. He as>k-\l Kinnaiv it there was an\ thing iv the bottle, and he-aid "Yes.'' They had a drink of brandy, ail four rounJ, and then went right down the ti.ick home, except th.it be stopped talking to Mi lony, who was so drunk that he could scaively fatrnd. 1-Jc swore that nothing eke occurred between Mrs Smith and himself on that occasion, lie was one of the two men »\ lio came up with the light, and Kinnaiv spoke to the other man, not to Mm (the witness). What he said was to the cfR ct, " ?fop bark."' and the two of them passed on. Tne name of the other man was James Bvnan. He iif-ier beard a word ft om Mrs ; there was a light voice like, but he could make nothing of it, and passed on. He did not hear Kinnaiy say, " Where's that wittch, till 1.10 for him " 'He (the witness) was, at tiie time, on his way to the head of the ;uily, whuv hi* tent was.

Ke-exuiniued : James Dynan was one of the men who had Ken sent for asa w ituesa from the Dunstan but could not be found. '

The Crown Pro-eeutor proceeded to reply on the case, and he was twice interrupted by Mr Barton, on thepoui-.d that the facts were not beinp; correctly stated, as upon the f vidtwe. The Crown Prosecutor was commenting upon the absence of all the mm ; who, it had bam contended would have been able to 'prove that th< re was no sere.imint;-, as if iv resistance. This, h." hiiid. wa« the moie remiu-kable after the extraordinarily 1 a-«e sums of money that had bren spent on the duf'-nce, and the handsome fee paid to the learned counsel. Suiely, with all this, witnesses would have been found if it was not the fact that a most gross outrage had been committed.

Mr Baiton s-ii I that tins was not fair comment

Tho Oi >\ra Prosecutor thought it was quite fair. The Juilfft; Loped tliese intemiptimis would now be stopped. He would not endure them, but would issue an order of committal.

Mr B.irton must ask bis Honor to tell the jury '.hat be had applied to the court for a postponement of trial, on the very ground that two of the men referred to, who were material witnesses for the prisoners could not be found.

The Jiulj,e siid that Mr Barton had himself, told the jury of thy fuet. These interruptions weie most exrr.ioulinary. He never, iv all his experience, knew any one to behave so in a court of justice— much JeS3 a barrister.

The Crown Prosecutor a»ain dwelt upon the large sum of money which hurl been expended without «'ettincr wifcius^cs for the defonce The le.irned counsel had nira.v It spoken of it to the jury. Mr B'irton : The money was paid in only two days bifo'e the trial.

The Crown Prosecutor f,?iid that extraordinary i-fforts had been maile to pet up the defence. Here was the learned couns 1 goinc,- out of hib way— visiting prison»rs in gaol— a thinu; which he the Crown Prosecutor would undertake to &ny was never heard of as having l-oeu done by a barrister iv England. Mr l'artou made an obvivation which the leportors could not hear ; and a lie I that he wished the Crown 1 losucutor would stat<> facts only, The Judge : Mr 1< irtou, I make an order to commit you. Take Mr 13ai ton into custody. The learned counsel stripped oil" his wig and gown, and stoop- d to a seat at the lack of the dock. 'lh". down Pro ecutor continued his addicts, urgng that the evidence of Mis Smith was, in many rcs-pt-c s, fully confinue'l, and that the juiy could" only find the pri-onero guilty. His Honor, in summing up, said, that after the attention paid by the jury, ho. did not think it necessary to go minutely through tlie evidence ; tor the lending lact-s weie veiy di-tinct, and lie doubted not, that they were cleai ly in tlie lecollection of the jury. If the jury believed that the act complained of was done by Malony against the will of the prosecutrix, and that Kiunaiy w.is present, encouraging or aiding him by word or deed, they must find both prisoners pruilty. It matteied not what might have been the previous chaiaetei of the prosecutrix. He considered the medical eulence stiongly corroborative of the .story < f the prosecutrix. The jury, before rctiiing, requested the Jud^e to read two portions of the evidence ; and this was done. The jury retired shortly before five o'clock. When An- Barton had been in custody half-un-hour, The Judge : Is Mr Barton iicre ] The Kegistrar : Yes, your Honor. Ihe Judee : Mr Barton, y.ou aic now released. 1 lie learned Counsel took his place at the table, resumed Ins fjown, and mentioned an objection which, after tlie onUr of committal, had been handed iv for the learned counsel by Mr Wilson (fray. Mr Barton said he was not sure of the provisions of the local ordinance, but he piesumed they would be such as to substantiate the objection, that in the absence of proof thnt Dr Anderson's being qualified to practice bad been gazetted, he was not entitled to give evidence as an expet.

The Judge thought there was nothing in the point. A man Rave evidence as an expert bei'.iuse of his medical hkill, and the certificates of that skill, Dr. Anderson swore he, nine month* ago, handed to the proper authorities at Tuapeka. It was another matter whether fees could be recovered without proof publication.

The jury returned in six or seven minutes, and gave a verdict of Guilty against both prisoners. The Judge : I should hare been greatly surprised if you had found any other verdict, gentlemen ; it would have shaken my faith in. Dunedin juriea if you

had. I don't know how you could have found any other verdict.

At the request of the Crown Prosecutor, the prison^iq were a^.-iiu arriii'iie ', Ki.uuii-ya? tha principal and Maloney ;,j the accesbOiv, They pleaded iS'ot Guilt v.

The Crown Prosecutor proposed to state the next morning what In* would do in the matter. The .Judee said there were now two committals iiQainst eac'j pnMMij-i. w\ ho t 1 o-vht th > ends of I'istiee would hi viti^iicd, without Irjinir ihpci on a third indictinenf.

The Crown Pio=ccutor was quite content to let upon the su^estioii, and a formal verdict, of Not Guilty was taken.

The prisoners were removed, and the Court adjourned.

Fin dat, 2ltii Oei'OBKR. The Judge took his seat at 10 iiVlwk. THE TUAPEKA KVI'K C VSB. Another phase of this revolting outraeo came before the Omi i, i his morninc -Martin Bro^m beincr charged as7>uiiL'ipal. nw] Michael Maloney as acevwnrv ° The piTTcutrk's statement was that after the 'three assaults by Kiunary and Maloney, the foimcrwcnt r, 1 ''"" , t'r°T ■' fcenvimls Rr»san came up. She went behind Midoney and heuao.l him not to let her be ass.iuited any more. He moved .^ide, nu d B rO f-an se-z»U hci— Malouey helping to throw her down • a-ul atierwards holdina; her cio>vn by the arms, while the outrage w\is committed by Hroaan. Jhiriuiythe time Knnntrv ca-ne up, and said, " If jou make auv mo:e 'ini.e, HI put (hi, into you," pulling- out a large ktnie as lie spoke. Mr Barton addressed the jury for Erogin. He said th'« jury heard on the previous day, something abour ln'iy exp>n.!ifure upon ri.e def< nee. That was almost entirely from a de-ire oi' Ikog.m's friends that even thing possible should be done foi ln\ defence • lie being very inueh lil.ed and esteemed by all who knew him. The learned counsel contended that there were eirciimsrnnrea in th» case wli eh threw \ cry great, doubts upon th" evidence of the prosocutrivfand that th-3 jury weic bound to give Uie prisoner the benefit of tlio-i! doubts MaloivysuM th.it from tlr- time lie nW Hro"an on thc-iiuhtin q-i^t,i.. n , ii> «. t , &U re tint Brogan had nothing to do v. ith Mis Smith. That was trii» and he would say it if he was to be hung the' next minute.

The Jii'ige hiving summed up, the jury retired at h,ilf-p,ist twelve o'clock. When th- Court resumed at iiaif-pa a t one, the jury ie turned a \eidict of uuiltv.

CHVIUUS OF EMUKZZI.K-MENT,

Benj'unin BiKtow was oharaed with embeziling I/- .slji; the fir^t count clu.-ging that the money belonged to VnllJam Hu?,t n r Hevnoklb. his master on. the second th.it it belonged to W. H. Reynold* and others, Ins m v sters.

Tha CVown Pi-iK^utir (uith whom was Mr Gillie,;) coii'l noted the case ; and Mr Barton and Mr Ward wer" f >r the defence.

In" Crown Pio-u:ntorsin that (he L 2 7, 01 Mas all^e.l to have been embezzled on the 4th April last. Mr Kejtir.l-is wjs the sole ieinstered owner of tl<* steamer Pule of the Y.irra The prisoner was the mast' t\ and lie was aho the owiur of a qflarter sh >re, the enpneer owin<y ii'iotha- quarter, and onohaU being absolutely Mr Iltijnr.UK propeity. It would, no doubt, bd sc up as a dofrnce, that hein ' tv-et v -e owner ol one-fourth sl.a-e of th > boat, th.- master had an inkiest in all her e.irnin^ ant ] could not there 'ore, b-i guilty of embv/.lem.-.it. But it was eerlain thai a man might steal his own propeity, if in faking what he had n>\ interest in he took something which was not critfr-jiy his o.vn. and took it with ints'.t to defraud the ownu- or owners of the other poitimi.

The following evidence was sriven : Wm. Hunter Reynolds said he was a merchant, lie- pro.lue d the register .showing that h« -h.i.s the sole resnt. r e .l 0 vner of the ste.i--.iev Pride of the V .ura. He purchased her in Cclobsr List, and from th.it, time the prisoner had been ma-t»r, at £18 a month. His duties weie to navicafe the veasel. au'l to collect passage money and freights, and to hand them over to Mr Groer, the ship's husband Any amounts that, he could not collect, because of distance or other circumstance, it was his duty to report to Mr Greer. There was no positive agreement, but the verbal agreement made between him (the pi executor) and the prisoner, both before and after the pu» chase of the v^sel, was that the prisoner was to hand over to Mr Greer all monie* earueil by the vessel, and paH to him. The prisoner was in charge of the steamer before he (the prosecutor) bought her, and tin- arrangement was similar to the one under which the prisoner had previously acted. He (the piosectitor) was to l,e reap,.nsil)!e to (he shareholder, and the pii«oner had no authority to dcil with aay of the ■itf.'imer's earnings, other than to pay them over to Mr (Jreer.

By Mr Hirton : He bought the steamer from Rreers truces. He paid ±MSO to Messrs James LateTson and Co., the auctioneer who sold her and he had since p-uM between £400 ami £500 for new machinery 110 made no investigation as to title to tlie vessel hefoie purchasing ; no one ever did so • the auctioneer ahvajs guaranteed title. He had produced tlip register, and that was now his titK Greer bad no direct interest whatever in the ves=- i or her earnings. He lul settled several account* with Greer — he had purchased goods from him and sold him goods. The first month or two he settled with the &h are holders ; but since then he had had no occasion to do so, as the steamer had been ia his debt, consequent upon his. expenditure for boiler, &c., for winch the engineer went to Melbourne. Greer received the same salary as the master nnd engineer. His duties were to look out for and collect freights, look for passengers keep accounts-m fact, to devote nearly the whole of his tune to her. He w.is not exactly ship's husband • n'B duties were, perhaps, moie like those of a^ent. Most probably he received his L\* a month during two months that the steamer was laid up. The receipt prod tied was (riven by him (the prosecutor) to tli-> pmoncr for Ll2O, for his quaiter share iv the steamer. (The document described the purchase as on joint account.) He thought he told the prisoner that lie had purchased for the beurfit of Greer. Frederick Gieer said that lie was ship's husband to the Pride of the Yarra, inning been appointed by Mr Reynolds. He was to get, as much business for the boat as possible, to receive moneys from the muster, to collect accounts which the master had failed to collect, to keep accounts, and to make a division of any profits after nayimr all expenses. He made an i^r'.ement for Mr Reynolds, with the prisoner, to pm-form all the duties of master for LIB a month. He kaew at the time that the prisoner iiada share iv the boat. The prisoner was to render an account, and pay overall nirme\ s received weekly, and he had been in the habit of doing so. The prisoner was in the habit of collecting the money (or bringing the mail from 1 urt Cisahueis. In March last he asked the prisoner i.o fret from Mr Monson the money for February's mall ; but he found afterwards that there was none due for that month. Several times during April he asked the prisoner to get the money for the March mans ; ;.nd at ],i«J tlr> prisonw said that as it was so near the end of the month, it might be as well to wait and collect two months money at once In the prisoner's book there was an entry, dated 21st May, of L 2 8s received for mail money. When the prisoner handed in the. hook, lie said that the mosey was all ricrhf for March and April, but that there was nothing due for February. When he looked at the amount, he made a ponci! memorandum on the book ' How much March— how much April? Very little." He showed the memorandum to the prisoner, who said lie, too, thought it little, but Mr Monson «aiil that there was no more due. Thinking the amount decidedly too low, iie determined to make an application to 'Mr Monson, and a-ked the prisoner to supply a list of the mails he had carried. Ihe priwmor could not give any iniormation. He (the witne-s) made out, a list as well as he could, and subsequently the prisoner taid to him, "1 would not make that application, it will only be likely to do us hai m." He leajnel something from Mr Monson. and when be was going to speak to the prisoner about it the prisoner I old him that he had ho-ird that he was suspected about the m.iii Tnoney. He (the witness) told the prisoner that Mr Monson said that an additional amount for mails bad been paid, and that he l' c j, a tt' he P'isoner'h) receipt to Mouson for L 2 is bii. The prisoner had i.ei-er nee< J unfc"d for that amount in any way. He had no interest in the steamer, present or prospective, llt-inembered the men compaining at his receiving LlB per month wli"n the books were made up. Had rendered accounts monthly to the men, showing the profits In June last, theie was a bill of about L4O against the boat, and he told the men their share of the liability was about L 9 or LlO. Had paid the engineer something on account of profits since,— about Lloo— but had not paid the prisoner anything. Had not furnished the prisoner wibh any accounts of profits since June.

J. R. Monson, mail agent at Port Chalmers, said it was Irs duty to pay monies for conveyance of mails to Dunedin. On the 4tli April, he paid to the prisoner L 2 7s, 6d., beiug the amount of mail money for March. On the 21st May, he paid the prisoner L 2 83. 6d. for the carriage of mails for the month of April,

My} Barton contended that the first count of the indictment could not be supported, as Mr Reynolds, tiie alleged owner, was only part owner of the boat. As to the second count which charged the prisoner with embpzzling money the property of Mr W. H. Reynolds and others, the prisoner was one of those " others,-" and the only person who might be said to have any special interest in the moneys was Greer, to whom, if to any one, the prisoner w:is alone accountable. The learned counsel cited several cases to substantiate hi 3 argument. Mr (jillies contended that both counts were good, especially the first count. The prisoner accepted the appointment of master, not by virtue of his position as partner, but by special appointment by Mr Reynolds, who was the registered owner of the steamer. Mr Reynolds had a special ownership tlu-ough his responsibility to the other partners for the monies. A lengthened argument took place between the learned counsel for the prosecution and the defence,

Mr Barton eoutending thiit according to the printed notice at the fo^t of the certificate of registry, that document wns not a fleo'l ol title.

His Honor ovuvi tiled tlio objection to the first count, and eartfu ly reused the evidence ou );oth si.lcs.

The jury retired at 10 minutes past six o'clock, and at -20 minutes to seven returned a verdict of " Not eiuihy. 1 ' Ti)i> prisoner was then discharged. The Court adjourned at 10 minutes to 7 o'clock.