SUPREME COURT

Otago Witness, Issue 2451, 6 March 1901, Page 50

SUPREME COURT

CRIMINAL SITTINGS. Wednesday, February 27. (Before his Honor Mr Justice Williams.) ASSAULTING A CHILD.

John Holland was charged with assavilting a girl under nine years of age, at Dunedin, on January 3. Mr Hanlon appeared for the accused, who pleaded Not guilty. The case for the Crown having closed on tue previous day, Mr Hanlon addressed the jury on behalf of the accused. He commented on the fact that the child was not examined until the day following that on which the offence was alleged to have been committed. The evidence of the mother, he submitted, was unreliable. She had a grudge against the young fellow, and, as had been showp, was the instigator of the proceedings. On the question of identification, learned counsel contended that there was only the evidence of the two little girls, and considoring the influence they were under it was not of a sufficiently strong character to support the charge. It was the duty of the jury to treat the evidence of the five-year-old child with a good deal of care. The child was so young that it was a very simple thing for an elderly person to turn its mind. His Honor reviewed the evidence, and the jury retired at 35 minutes past 11 a.m. At 3.50 p.m. they returned, and, in reply to hi 3 Honor, the foreman said there was not the slightest chance of an agreement being come to.

His Honor said if only one or two of the jury could not fall m with the majority, the minority should look at the matter very carefully, and see if they were not wrong. At the suggestion of his Honor the jury again retired to look over the evidence, but at 4.35 p.m. leturned with the same announcement. His Honor said he was sorry, but the only course was to discharge them The Ciown Prosecutor said he would take the case the first thing next morning.

BUBGLABY.

John Ramsay, found guilty the previous day on a charge of burglary, was brought up foi sentence. He gave his age as 19 years. In answer to his Honor, the Crown Prosecutor said nothing was previously known against the character of the accused. He was a ship steward, and had only been in the colony since 1900. Mr Phillips, gaoler, replying to his Honor, said the accused had been in gaol for seven weeks. As probation officer he did not think it advisable to recommend the man for the benefit of the First Offenders' Probation Act. His Honor sentenced the accused to three months' imprisonment, with hard labour.

THE ST. CLAIB ASSAULT CASE.

Samuel Flaherty was charged with, on or about the 26th January, 1901, at St. Clair, assaulting a girl of the age of four years. The prisoner, who was undefended, pleaded Not guilty. The Crown Prosecutor said the facts of the case would come out in evidence, and all it was necessary for him to say to the juiy was that the accused was at St. Clair on the date mentioned. He accosted two or three children. He took one to the Sandhills, and was caught with the child. The child was taken back to its mother, and its condition was then apparent. After hearing the evidence the nuy would have no doubt at all in their minds that the prisoner had been gmlly of a most serious and brutal assault.

Dr Gordon Macdonald, the first witness, gave evidence as to the state in which he found the child on the day of the assault. She was in a very critical condition for several days, and was not well yet. In answer to the Prisoner, witness said that in the police cell at St. Clair prisoner smelt of alcohol, but appeared sensible of witness's presence and what he was doing to him. Evidence was also given by the mother of the child, who said the child was able to run about now, although the wounds were not quite all healed; May Lister (a little girl), Madge Coxon (aged four years and four months), and Mrs Mary Coxon, residing at St. Clair, who said that half an hour elapsed from the time the children went a. message until the little girl was brought back to the house by Miss Fisher. Samuel Bushell, express driver, living at St. Clair, said that on Saturday, January 26, he saw a man speaking to three little girls. He was about 150 yards distant at the time, at his home. One of the girls followed the man. They went on to the beach, and five minutes later he saw the man and the girl walking towards the end of the tram road. A man was standing there, and accused turned back and took the girl in his arms. He afterwards turned again, but seeing a gentleman and two ladies approaching he went up the bank. Half way up the bank he fell and lay there for 15 or 20 minutes. Subsequently he went along the beach for a distance of 50 yards past the end of the tiam road, and on to the Sandhills on the other side of Mr Mitchell's section. He recognised the accused as the man who spoke to the children. The other witnesses were Cora Fisher, Thos. Fraser, Richard Coxon, Constable Mulholland, and Detective Coo'ney. The constable stated that when arrested the man was not drunk, but he may have been drinking. He was not drunk enough for a constable to interfere with him. A copy of the girl's birth registration.certificate was put in, showing that she was born on the 17th February, 1697.

This closed the case for the Crow.n.

William O'Leary was called by the accused to give evidence. This witness said he saw the accused on Saturday, January 26, in front of Lone, the draper's, at half-past 3 o'clock in the afternoon. A man named Rowen was with accused, and the two went along Princes sheet to Hopkins' s corner, where they got into a car. Accused was drank at the time. Rowen told witness some days later that he got out of the car at Opg's corner, leaving accused m the car. He could not get him out, as lie was asleep.

Accused said he had another witness, but he was out of town.

In his own evidence, the accused said he had boon drinking on the Saturday in question. Two years ago he met with an accident, a.id whenever he took drink now he lost his -Sen=es nr-d all control of himself, and did not know where he was or what he was doing. Prior to this Saturday he had not touched drink for six or seven weeks, and having been off it so loi.g it took effect on him quickly when he took i+ again. He did not remember going n. the tramcar or bemp; at St Clair. The first he remembered was finding himself in the lock-up at St. Clair, when the doctor came into the cell.

The Crown Prosecutor asked no questions. The accused was given an opportunity of saMng anything he wi=ked to the iury. He said:'Thfc witness Fraser states that I was

drunk, and at the same time he says I kne^ what I was doing. The witness Bushell say 3 I fell with the child, and lay there for 15 minutes, and that there were people at the edge of the water. I do not think a man sober and in his right senses would he there in view of people. His Honor went over the whole of the evidence for the benefit of the jury, and explained' to them the law bearing on the case. Touching on the facts he remarked that there was no doubt that all that was done -was clone by the accused. If, as the witness Bushell said, the man lay on the bank with the child, he must have been drinking, but drunkenness was no excuse at all for crime.

The jury retired at 3 p.m., ?nd returned in 10 minutes with a uiiammoxis verdict of " Guilty." The accused, when called upon, said his age was 25 years. He also said : I hope, your Honor, you will deal with me as leniently as you can. I am sorry what has happened. It seems I was not in a right state of mind at the time of the occurience. I have a crippled brother to support. His Honor: What is known of him, M* Fraser' Th C on- Prosecutor: The only thing kno ' '' ni is that on the 28th Septeml v.as convicted at the S.M. Couit, i,a <. m theft, and fined 10s. Accused cur Honor, that was not a proper case of theft. The watch was taken to make a good turn. After consideration, his Honor, addressing the accused, said: I do not think you realise the serious position you have placed yourself in. You have been found guilty of one of the gravest offences known to law, committed under circumstances of peculiar brutality. You send in a testimonial saying that you are a respectable man, and have paid your board. Testimonials of that kind are worse than frivolous in a case of this sort. The sentence of the court is that you be imprisoned far the term of 15 years, and be kept to hard labour, and also that you receive two floggings of 25 strokes each. The sentence was received by the public with. applause, which the police suppressed. His Honor- I am sorry there is any manifestation m the court. This is not a theatre. You should behave yourselves with equal reverence m a court as m a church. The court rose at 4.40 p.m.