SUPREME COURT.

Otago Witness, Issue 2401, 8 March 1900, Page 43

SUPREME COURT.

CRIMINAL SESSIONS. Tuesday, Febbuaey 27. (Before his Honor Mr Justice Williams and a Common Jury.) STEALING A POSTAL LETTER. Peter Eobert Dewar (aged 19) pleaded Guilty to a charge of having, on or about the 20th of January, stolen a postal letter and a gold brooch, from a- postal letter, from the Clinton Post Office. Two other counts chaiged him with similar offences at subsequent dates, and accused admitted all the changes. Mr S. Solomon, who appeared for the accused, said the case was an exceedingly sad ! Olio. The prisoner was quite a j outh, and wa3 ; the son of highly respectable people, and had lived a blameless life until quite recently. It was difficult to account for what he had done, but it appeared very much as if he hftd piLfered the articles from the post oSice to give them to a lady he was keeping company with. He ceitainly had nothing personally to gain by what he did. 3?earned counsel would venture to put it to his Honor that if there was no technical difficulty an the way, it was a typical ea&e for probation. He had his life before him, and had certainly made a bad beginning, and if sent to gaol the probabihty was that the bad beginning would make a bad ending. If it was possible to give him a chance, learned eotmsel submitted that the case was a typical one for probation. There woxild be no difficulty in keeping the i^idier on a farm during any period that might be imposed, and it might be made a condition oi probation that he remain under the protection oi some person, to ho reported to the probation officer. The Crown Prosecutor, in reply to his Honor, said that all that was known to the police was that he was a native of the colony, a cadet in the telegraph office, and had not been previously convicted. His Honor, in passing sentence, said : I cannot accede to your request, Mi Solomon. Not only is there a technical objection, but there 13 a substantial objection to admitting accused to probation. The technical objection is that there are three separate offences, and it cannot be said that they aie j>art of the same transaction. Each is distinctly separate from Hi e others. Then as to' the substantial objec- ; tiou. The Legislature, for ths protection of i the public, has provided for offences of this kind the most extreme penalty. The limit oE punishment is penal servitude for life. That shows the serious view they cake of offences of this kind. Manifestly it is of the greatest importance that the public should be able to entrust their property to the post office without fear of its being plundered, and that the post office service should be completely regular anl trustworthy. "Whenever a post office official commits an offence of this kind, it is S3 far as anybody knew almost certain he would be a man of previous good character, for if not of good character he would not be employed in the post office. If there had been only one offence I might possibly have taken the good character of accused into consideiation, and granted probation. I do not say I should, but I would have had very gieat temptation to do so. looking at the youth, of the prisoner and his previous good character. I do not wish to inflict a severe punishment, although the law enables an exceedingly severe punishment to be inflicted. The sentence of the court is that you be imprisoned for a term of six months on each indictment, and kept to hard labour, the sentences to be concurrent.

FOEGERY.

Francis Heriot Laing (aged 27), v.-ho, on the previous day, pleaded Guilty to six charges of forgery, was brought tip for sentence.

Mr Solomon, who appeared for prisoner, said that he found very great difficulty 'indeed in saying anything on behalf of this prisoner, beyond the fact that he was of a respectable family, and had. lived all his life amongst us. The one thing about his case was that all his wrong-doing had come about very much at the same time, and that a temptation, of a- sort unnecessary to put before the court, had driven him into this desperate condition. It was a shocking thing, and he could not ask for leniency; he could only ask for mercy. His Honor, in passing sentence, said : This case is not like that of a half-drunken man who forges a, cheque for the purpose of raising a pound or two. Here we have a man of business, who knows what he is about, and who knows business, and he not only forges "one cheque, but forges cheques for months. This is an offence which cannot be passed over lightly. The sentence of the court on each indictment is that you be imprisoned for two years, and kept to hard labour, the sentences to be concurrent.

CHAHGE OF DOUBLE VOTING,

George Robinson (67) pleaded guilty to an indictment charging him with double voting at Oamaru, at the election on the 6th December last.

Mr Newton (ol Oamaru), who appeared for the accused, said the facts were such that he was sure his Honor would consider the case ! one which could be met by a nominal penalty. ■ As soon as it was discovered that the offence had been committed the accused had clone all '• ho po&sibly could to smoothe the way for the prosecution, and had sent in a written admission of the offence. Prior to proceedings being instituted, he (learned counsel) had written to the Minister of Justice giving all the facts of the double voting, and the letter was endorsed by Mr Creagh (Crown Piosecutor at Oamaru) and the returning officer (Mr Ralfe). The proceedings were nevertheless instituted. Accused could give no explanation of his act, but said that he only believed that he was doing what he was entitled to. It seemed to be the result of absent-mindedness. In sonic way accused got the idea that he had to vote twice, for one thing at one place and for another thing at another place, and had advised his children to do so ; but as a matter of fact lie had voted both on the licensing question and for a member in both booths. Accused had no strong political feeling, and on the licensing question meant to vote for things to 'remain as they were, but by striking out the bottom line only he had neutralised his vote. The learned counsel had in his letter to the Minister o£ Justice stated the facts and circumstances in detail, and after reading them he thought the Minister would have caused instructions to "be given that the Crown Piosecutor should not, lay an , information. i His Honor: Of course the Minister of Justice did not act on the letter, and quite rightly, because even if the thing \i as done accidentally I think there oiight to bo a prosecution — there should be a prosecution in each case.

Mr Newton said that was possibly so; but the facts were as he had stated them, and that could be borne out by most creditable witnesses. The case was very similar to that of the Hon. Mr Pharazyn — the restilt of inadvertence—of absent-mjn.d.edneafo

His Honor : It was not the act of a partisan : j he wandered out of one poll into another. I Mr Newton : Yes.

The Crown Prosecutor admitted the accuracy of the statement made, and said that he understood that although Mr Robinson, who was nearly 70 years of age, was well able to concentrate his attention upon his business, m other respects he was very absent-minded, and was given to thinking out inventions u\ a way that quite absorbed his attention. Mr Newton proposed to call witnesses to substantiate the statement he had made. His Honor: I take your statement for granted. Mr Fraser admits it. Mr Newton said his reason for askiiig that Mr Ciea-gh. should give evidence was to show that he had himself, on learning the facts, sxiggested that the defendant should have legal advice. It was defendant's statement to Mr Creagh that carried conviction of its truthfulness.

His Honor : It is not a case for more than a fine, and not a heavy fine at that, but there ought to be a fine. A man of education has no business to do these things, and to cause trouble. I£ he is absent-minded, he ought not to vote at all if he cannot .vote properly. 1 think these proceedings are quite properly taken, and that proceedings ought to be taken m every case where there is double voting, so that It cannot be said that one man is proseciited and another is not. Mr Newton : Would your Honor pardon me, but I desire to ment.oii the fact that Mr Robinson is in poor circumstances, and to merely express a doubt as to the power to fine. ' 1 His Honor: Yes; there is power under the code. Mr Robinson is fined £10. , J J WOUNDING WITH INTENT. j i Frank Hodges (21) was charged with having, on January 21, at Cromwell, assaulted Matthew Henry Dawson, with intent to do grievous bodily harm, and did grievous bodily harm. A s.econd count charged accused with assault with intent, and a third count charged him with common assault. j Accused pleaded not guilty. > The Crown Prosecutor said that on the day in question accused went to prosecutor's hotel and asked for a drink, which was refused. After repeating the request and being again refused, ho attacked Dawson with a glass water jug, inflicting a large cut on the face. After evidence had been heard,. Accused gave evidence on his own behalf. Ho said that he was attacked by Dawson, and that in the scuffle prosecutor came in contact with the water jug, which he (Hodges) had seized to defend himself. His Honor having summed up. The Jury retired, and returned in half an hour with a verdict of " Gtiilty, without intent to do bodily harm." | The Crown Prosecutor stated that the c 'police I reported that the accused had borne an indifj ferent character. I His Honor sentenced the prisoner to 12 ' months' imprisonment with hard labour. [ J FALSE PRETENCES. ' Henry Wong Gye was charged with obtaining £5 from Hing Chung and £100 from Wong King Yip by means of farlse pretences. , Accused pleaded -Guilty to both^charges. Mr Solomon said" that the money had not I been obtained by fraud' in the ordinary sense

of the term. ' . . - ■ The Crown Prosecutor sard that accused was 29 years of - age; and had not previously been convicted. "He had been 'a commission agent in Dunedin for some years past. His Honor, in passing sentence, said that accused, having been in business, knew perfectly well the consequences of the act he was committing.- He had intended imposing a sentence of 12 months' imprisonment, but as accused had already been two months in gaol awaiting trial, he would sentence accused to 10 months' imprisonment with hard labour on each charge, the sentences to be concurrent. THEFT.

John Bowler was charged with having, on December 27, at Dunedin, stolen a purse containing a railway ticket, five twopenny stamps, and £5 in nioaey, the propeity of Robert Gray. Accused pleaded Not guilty, and was defended by Mr Solomon. Mr Fraser (Crown Prosecutor) said that the facts were thai Gray and the prisoner had bee.i known to each other for the past six years. The latter was boots at the Gladstone Hotel.

On the date mentioned m the information it was alleged that the two spent the day together, and had been drinking. About 11 o'clock at night Gray gave Bowler his purse lo look after for him until the following morning. 1 On the 28th Gray went round to the Gladstone Hotel to get his purse and money from Bowler, oncl found that he had lett his employment and gone away. * The police were communicated with, and Bowler was arrested at Oamaru. He then had £1 11s, and a return railway ticket from Dunedin to Christchiirch in his possession. The ticket alleged to be stolen was a return from Invercargill to Oamaru. Evidence was given by prosecutor, Andrew Gow, and Mounted-constable Hunt, Oamaru. Mr Solomon submitted that the jury must acquit accused. It was the usual case of a 3'oung man from the country coming into town, becoming muddled with drink, and being robbed in a brothel. Learned counsel directed attention to the fact that it was a Dunedin-Christ-I church ticket that v/as found on accused, and not an Invercargill-Oamaru ticket, the same as was alleged to have been stolen. | After his Honor had summed up the Jury retired, and jifter 30 minutes' retirement re- ' turned with a verdict of " Not guilty." i Aooueed. was then discharged from custody.

INTIMIDATION AND ASSAULT. Patrick M'Kay was indicted upon a charge of having, at Stirling, on the 3rd of February, by night, broken into and entered the dwellinghouse of Margaret Scott, with intent to intimidate and annoy Margaret Scott and William Scott. A second count charged him with assaulting William Scott. Mr Hanlon appeared for the accused, who pleaded Not guilty. The Crown Prosecutor (Mr Fraser), in opening the case, said that Margaret Scott was a widow, living at Stirling, and William Scott, her son, lived with her. Some months before the date mentioned in the indictment there had been bad blood, at lens.t on the part of the accused, towards the man Scott, and possibly there had been bail feeling on both sides. Evidence of previous threats of violence by M'lCay against Scott would be given. Thg threats and abuse were renewed on the night^of the 3rd oi February, when a man named Duckworth was v.-ith them, and later that night, when Scott and his mother were sitting in their cottage, they heard the bedroom window or>en, and Mrs Scott, who was an invalid, started to scream. At this time they saw the accused enter the house by the window. Mother and ton bolted out of the house, and the accused followed them, and caught William Scott at the front gate. A struggle here took place, and continued until assistance came, when M'Kay was

secured. The learned Ciown prosecutor said he need not point out that the offence charged was a veiy serious one. It was a very serious thing indeed for any person to break into ' another man's house, and whether he did so to steal property or to intimidate and annoy the j occupants he committed an offence that must ! lead to serious consequences. Such a thing ' was unpardonable, more especially when it was done with the object of carrying out a scheme of violence. "Whatever the relations between the parties may have been that could not excuse one man from entering the house of anothez person at night with the intention of doing vioi lence to anyone. The issue for the jury was a ! very narrow one: They had to consider twa auestions— (l) Whether the accused did break into the house at night, and (2) did he do sq with the intention of intimidating and annoying the inmates. . , Evidence for the prosecution was given by William Scott, Margaret Scott, Andrew Duckworth, and Daniel Boyd. Mr Hanlon addressed the jury for the defence, commenting upon the evidence very severely, and contending that, so far as the alleged assault was concerned, the accused had been very roughly handled, while all that he had done could hardly be dignified by the term assault. What was necessary to a conviction was that the jury should be satisfied beyond all reasonable doubt that when the accused went. into the house he had made up his mind that he was going in for the purpose of intimidating and annoying the occupants of the house. Now there was no direct evidence of I that — absolutely none; and what .other way i was there of arriving at a conclusion? There was one other way : They might draw an inference from the other evidence, from the circumstances. If they found from other evidence that the inference was clear that accused had made up his mind, and that his intention mus( have been to intimidate and annoy, then thej would be justified in convicting; hut, learned counsel asked, was there a particle of evidence given to lead to that conclusion? The only conclusion they could come to was that what had happened was merely the result of a drunken freak. The man was half drunk, and of course took that occasion to air his grievances, and ultimately was supposed to have got into the house. It was simply a foolish drunken freak — a stupid thing to do ;"but if the Jury considered that he had done it without making up his mind to intimidate or annoy these people, then it would be their duty tt acquit. The Jury, after retiring for half an hour, brought in a verdict of '" Guilty, ' with a re-

commendation to mercy. The Ciown Prosecutor, in reply to his Honor, said that in 1896 accused had been committed for trial for intimidation, and in 1897 had served three months' Imprisonment in default of secuiities. The Oamaru police reported

that prisoner was given to drink, and was a bad-tempered and quarrelsome man. His Honor sentenced the prisoner to 13 months' imprisonment, with hard labour.

j Saturday, March 3. J CTUHGE OF WOUNDING WITH INTENT. , j Thomas Dawson was charged with having, on the 15th of December last, at South Dunedin, wounded Ernest Lear with intent to do grievous bodily harm. A .second count in the indictment charged him with assault with intent to do grievous bodily harm, aud a- third count charged him with assatilting Lear so as to causa actual bodily harm. I Mr Hanlon appeared for accused, who pleaded , " Not guilty." j The Crown Prosecutor (Mr J. F. M. Fraser),' in opening, said the facts were as follows: — | The prosecutor, who was injured, v/as, with three companions, walking along the Main road j in South Dunedin, near Bellett's Hotel, when 1 accused, who was with his wife, passed hina. Lear very foolishly made a remark commenting on Dawson's appearance. He had on a volun- | teer uniform, with a pair of white trousers, ' and was wearing a bayonet and scabbard at his ! side. Lear asked him where he got his pants i from — a silly and impertinent remark, and it j would have been better if he had not made it. Accused turned and asked who he was insiilt* I ing, and drew his bayonet and cut at Leai> iniUctinij a wound about 2in long above an£ »«*

hindi'the right ear. Before he was arrested accused i-old the sergeant of police that he had used his sword on a man, and had apologised for what he had done. As a matter of fact, that was so. He also asked what a man was to do when attacked by a crowd. He snid he was sorry for what he had dofte, and that drink was the cause. There was no assault committed upon him by either one or other of the young fellows. The whole source of the trouble was the impertinent remark made by Lear. It •was a serious matter for a man to use arms at any time, and was utterly unjustifiable unless when defending his life against attack by a person equally armed. The provocation accused received was totally inadequate to the assault he committed, and does not suggest the slightest excuse for it. Accused had admitted that drink was the cause, but the jury would bear in mind that drunkenness was no excuse.

Evidence for the Crown was given by Dr O'Neill (house surgeon at the hospital), Ernest Lear, Andrew M'Kerrow, Angus Morrison, Frederick Booth, and Sergeant Brown. Mr Hanlon elected to call evidence, and called. Thomas Dawson (the accused), who gave cvi- = aence that -on ihe night of 15th December he as a volunteer was taking part in a patriotic dramatic performance. As soon as the entertainment was over he mef his wife, and they made for home. He had two small glasses of ale on the stage that night, but no drink outside. Near Bejlett's,,in Squth .Dunedin, he met four young fellows, and one of them came . out with some very bad language in front of his "(accused's) wife, and was otherwise taunting and abusive. .Witness asked his assailant if Jie thought he was going to be insufited. One of the men hit him on the side of the 'head and knocked ofi his helmet. As the others were going for him he drew his bayonet. The whole four then made off. That was all he remembered until he met Lear up the street. Lear said, " You have cut my head. ' Witness said ha was sorry for that; that he had not meant to 'hit him at all. His wife picked up his ■helmet. He took out his bayonet to frighten them; he was not a match for the whole four. He did not intend to strike them, and did not know that one had been struck. Cross-examined: Ho went back to inform the police that he had been insulted. At the time he was perfectly sober. It was not drink that excited him. He could not remember what he had said to the sergeant. He drew his sword after he was hit on the head. He denied positively that he had struck at aaay of them. . Elizabeth Dawson, wife of accused, gave corroborative evidence.

Mr Hsnlon, in addressing the jury, said that one would gather from the evidence of the chief witnesses for the Crown that the accused was guilty of the gioss crime of assaulting a man with a very dangeroxis weapon; but having heard the evidence they must come to the conclusion that the story told by the witnesses io,- the Crown was not true, but had. been told for the purpose of exonerating themselves from any blame, and for the purpose of getting the man punished whom they had wrongfully and wantonly assailed on the night in question. There could be no manner of doubt .that the story told by the witnesses for the "clefence was the most probable. Could they J credit for a moment that the accused had been guilty of taking out a dangerous weapon, like a bayonet, to deliver a blow upon the head of ,anothef man, who had done no more harm to "him than merely to say " Where did you get those pants?" That was absolutely ridiculous. They had to ask themselves whether they could credit that story. The story itself was a preposterous one, and, further than that, there 'was ample reason for the Crown witnesses telling such a story. He put it to them that the witnesses for the Crown were • a pack of larrikins who infested the streets of South Dunedin, who wantonly, improperly, and grossly insulted inoffensive passers-by, and that in order to exonerate themselves from blame they had told this trumpery story that accused (had drawn his bayonet and. attacked them because one of them said, " Where did you get the pants?" Could they believe that? After dealing with the evidence the learned counsel said he felt, and he asked the jury to feel, that the accused had been grossly wronged by these young fellows deliberately insulting him, and insulting hie young wife when the accused and his" wife were quietly proceeding to their own home.

Mr Fraeer, in addressing the jury, pointed out that there was no evidence that the young meu referred to belonged to the larrikin criminal class, and it was for the jury to consider only the evidence. The jury should remember that Sergeant Brown had not been asked whether the ydung men belonged to the larrikin or the respectable class, and that question not having been asked, he invited the jury to consider them credible and trustworthy witc esses.

His Honor, in summing up, Sf,id there was no reason why a man who was attacked by several people should not draw a sword — he might draw it as a kind of warning that people haS better keep clear of him ; but using it after it was drawn was a different matter. They had heard the- story of the accused, which was that he did not use it at all, but drew it, and that the effect of the drawing was to wound the prosecutor. '

The jury retired at 1 p.m., and 1.25 p.m. returned _^vith a verdict of " Not guilty." The accused was then discharged. CHARGE OF MANSLAUGHTER.

John James Milburn, a boy of 12, appeared to answer an indictment charging him with the manslaughter of a boy named John Cuningham, at South Dunedin, on the sth February.

Mr Hanlon appeared for the accused, rho pleaded " Not guilty," and Mr J. F. M. Fraser (the Crown Prosecutor) conducted the case for the Crown.

The Crown Prosecutor, in opening tho case, said the unusual features of the case were the ycuth of the accused, who is 12J years of ago. Section 32 of the code said that no "person should be convicted of an offence by reason of any act or omission of such person when in»der the age of seven years, and no person should be convicted of an offence by reason of the act or omission of such person when of the egc of seven but under the age of 14, unless the jury by whom he was tried, or the court before whom he was charged, were of opinion that he knew that such act or omission was wrong. A3 accused was under 14, there were therefore two questions for the jury (1) did he commit the offenoe, and (2) had he the knowledge that h.3 was doing wrong at the time. The facts of the case were very simple. There was a squabble among boy companions. Accused told deceased to leave another boy alone, was answered that he would not, and then" the boy who was killed, kicked the accused, who had an open knife in his hand, and who struck back ■with the hand that held the knife, inflicting a fatal wound. Of course a case of this kind was painful on account of the youth of the f>ecused, and also on account of the misery and sorrow cariied into the home of the boy who \yas killed. The jury, however, had simply io listen to the evidence, and to return a veidkt in accordance with it, quite apart frc-m .sympathy. ISvidenco was given for the Crown by Dr Fulton, the boy& Frederick Graham and William Graham, and Sergeant Brown. The ciossexamination of the witnesses was very short, that of the boys to confirm the evidence they Jiad given as to the fact that the blow was $tru6k immediately without premeditation. Dr Fulton was cross-examined as to the cause of death, and a3 to whether it was possible, in the absence of a post mortem, to give positive evi-

dence. Witness said he could not, without a post mortem examination, give an opinion which he could swear to positively as to the cause of death, but he was prepared to say from the symptoms that the boy showed when dying that so far as medical science could say the boy died from internal hemorrhage, caused by the wound. He regarded it as extremely unlikely that the lieart could h^ve been ruptured by the previous struggle. Mr Hanlon addressed the jury for. the defence, and, in doing so, said that though the case was extremely painful it was one that would give the jury very little trouble to decide. In the first place he contended that the evidence did not conclusively prove that the wound alleged to have been inflicted by the boy was the actual cause of death. As to the second aspect of the case if there was a theory consistent with all the facts and consistent also with the innocence of the accused, it was their duty to find that the boy was innocent. "What could be more reasonable and consistent with th-3 facts than that the boy, who was standing peeling a stick with his knife when the other boy kicked him, threw His hand out thoughtlessly, never for a moment thinking of the knife that was in it ; so that almost at the same instant that the one boy was kicked the other received the stab. There was the whole thing. If there had been any lapse of time between the kicking and the stabbing, the theory would not have -,eld water, but all the Avitnesses agreed -thai, the -act was instantaneous. Then as the boy was under 14 they would not be justified in convicting unless they were of opinion that he knew the act was wrong. The most reasonable theory was that he struck round, intending to keep the other boy off, and' not knowing, not thinking that he had a knife in his hand — that he struck out intending to keep him off, and that it -was quite an accident that he hit the deceased with a knife. If they cor eluded, as seemed most certainly to be the case, that after he had been kicked accused struck out from a spontaneous sudden impulse, then they could not say the boy knew ho was doing wrong, and it was the merest acciden: that he had a knife in his hand. In that event also the verdict should be one of acquittal.

His Honor, in summing up, said that in order to convict the jury had to be satisfied, first of all, that the act of the accused -killed Cunningham, and then that the a-ct amounted to manslaughter. They had heard the evidence as to the wounds which had undoubtedly been received at the lifcnds of tho accused from a knife. That knife they knew would be capable of inflicting a fatal wound, and immediately upon the wound the fatal symptoms that might be expected to result from such a wound appeared, and the boy died immediately^ afterwards. The medical man who had been called was positive as to the cause of death, and there was no history of heart disease, or anything of that kind which would account for such a sudden collapse. It might have been better to have had a post mortem examination; but the doctor was satisfied, and, looking at the whole of the circumstances, the only reasonable conclusion was that death resulted from the wound* Then there was the question, was there any criminal act on the part of the accused. What had been done had been done instantly. . A boy came up and kicked him while he was whittling a stick, r.nd he struck immediately he 'was kicked. Well, if he had not had, a knife in his' hand, and hpd hit back it would be difficult to say that that wjs an illegal act. If a person was kicked he wis entitled to hit out, if he did not use more force than was necessary for the purpose of preventing a repetition of the offence. Either a boy or a man was entitled to protect himself in that way. But the accused here had a knife in • his hand.. Well, if he was not conscious that he had a knife in his hand, and had no intention to use a knife in hitting, then if the wound happened in the course of hitting back — if he were not conscious of the knife in his hand, and never intended to use it, then he was entitled to be acquitted, there was no illegal act on his part. If, however, he intended to use the knife, even though the intention was momentary, then it would be for the jury to convict, unless it could be said that a boy of his age could not know that it was wrong when he was kicked to use a knife in self-defence. It would, of course, be very difficult to say that if he intended to use a knife a boy of his age would not know that it was wrong to use it. The question seemed to be, Did he strike intending to strike with the knife? If he did, then, unless the jury could see their way to find that a boy of that age did not know it was wrong to do a thing of the kind, he ought to be convicted. If, however, he struck, not intending to strike with a knife, and not thinking that he had a knife in his hand, then he was entitled to be acquitted. The jury retired, and in 10 minutes returned with a verdict of " Not guilty." The boy was then discharged. The sessions terminated at 3.30 p.m.