THE ACCUSED FOUND GUILTY.

Otago Witness, Issue 2686, 6 September 1905, Page 33

THE ACCUSED FOUND GUILTY.

THE DEATH SENTENCE PASSED.

INVERCARGILL, September 1. The trial of Daniel Swan, charged with murdering his wife, Mary Ann Swan, at Invereargd'll on June 28, was continued before Mr Justice Cooper and a jury this morning. The Crown Proseeator (Mr Macdonald), summing up to the jury, said that onus of proof that the accused had committed t*he crime alleged lay on the Crown. Counsel for the defence, however, apparently relied on the theory that at the time of the commission of the crime the acou6ed was suffering from insane homicidal impulse. The Crown undertook to satisfy the jury that this man murdered his wife, and committed the crime intentionally. r ~The onus lay on ihe defence to establish beyond reasonable doubt that at the time of the offence accused was insane. If the case presented for the accused was subject to any reasonable doubt the jury would have to "find the accused guilty. Jealousy was. a controlling- force, and under its influence people committed acts which otherwise they would not contemplate. There was no doub'i that accused was jealous of James Clark, and on one ocasion went so far as to tell his son that he feared Clark would run away with his wife. In such a frame of mind it was natural that the man should distort innocent acts of his wife into evidence of guilt. From the medical evidence the only conclusion that could be come to on the matter was that accused had struck deceased eight timas with a flat-iron The evidence as to the crime was conclusive, the accused's daughter, Rhoda, having witnessed the act. There had been no direct evidence as to the wound in the woman's throat ; but in the circumstances, could thes' 3young children, while pratecting their mother from the violence of their father, be reasonably expected to note and describe every incident of the terrible tragedy? He submitted that the evidence established beyond doubt that the man who knocked the woman down also cut her throat. Accused might have got possession of the razor during the evening while he and his wife ' were sitting in the room and Rhoda ironing at the table near by, or he might have taken it from its place during the actual period of the crime. The cutting of the throat might also have occupied only a flash of time. There was nothing in the evidence to support the hypothesis of insanity. If the jury had any reasonable doubt that the man was insane it was their duty to reject that plea; otherwise crime would become rampant, and th-3 comrminity would not be safe. The theory of insanity had not been made good in this case. If the jury thought the man was insane they must acquit him ; but it seemed to him that the evidence as to insanity was absolutely insufficient. The crime was committed under the impulse of jealousy. Mr Barclay said he should make no extended prefatory reference to the serious nature of the offence, the responsibility of the jury, and so forth, because in this oase all that was so obvious that no ex tended reference was necessary. One matter the Crow-i Prosecutor had treated somewhat lightly. The case had been conducted by the C»*own with extreme care, rigid attention being paid to every detail; but in spite of all that care and diligence the Crown could not show the jury who cut the woman's throat. True, Rhoda and Don were young, but the Crown Prosecutor himself had drawn attention to the admirably clear manner in which they gave evidence ; and yet in that important detail he would have the iury believe that their evidence was entirely imperfect and incomplete. The woman died from the wound in her throat, and the Crown had absolutely failed to show by whom that wound was inflicted. It was not the duty of the defence to show that. To get and replace that razor the accused would have had to go twice to a liigh shelf, but the children who watched him so closely, and struggled with him so pluckily, who weso with him during the whole period of the assault on the deceased, never saw their father go to the shelf at all. and never saw him cut their mother's throat. The Crown plainly failed to show that Swan cut the woman's throat; and the evidence

showed plainly that he did not. That was a fatal flaw in the ease for the Crown. There was no verdict of '"not proven." in this country, and if the jury was not satisfied that the Crown had produced sufficient evidence to establish the fact that Swan out the woman's throat the verdict must be "Not guilty." The facts proved were plain enough After sitting quietly .n the family circle Swan suddenly rose and battered his wife fiercely and repeatedly with a flat-iron. Was the man sane? That point the jury had to consider. If the jury had any doubt at all on that matter the man must escape. His Honor: I shall have to instruct the jury, Mr Barclay, that we have our own codified law. The jury is bound to apply the provisions of this Criminal Code, and not any judicial decisions given in England prior to the Criminal Code.

Mr Barclay : It is true that we have our code, and it is also true that the provisions of our code are largely framed on the case of M'Naughton in 1837. Every case lam going to quote is since the decision in M'Naughton's case.

His Honor : M'Naughton's case is no longer the authority here, but a section of our Criminal Cede, which does not embody all the views of the judges in M'Naughton's case. I have to construe this evidence, and not the jury. I should be very sorry to stop you in a capital case using any arguments you may think necessary m your client's interest. But Ido not think these English cases are of any authority in this colony now, when we have such a very clear and distinct statement of the law in the Criminal Code.

Mr Barclay proceeded, as regards the insanity plea, to cite and comment on various' English cases — Dock's case, 1878, Cox's Ci'im. Css., 143;; Regina v. Richards, 1 Foster and Finlayson. p. 87; Regina v. Vyse, 3 Foster and Finlayson. Let them consider the actual facts. It was often a difficult matter to decide in criminal cases whether a man was insane or not. There was no absolute rule. The characteristics of the insane homicide coincided with the facts in evidence in this case — prolonged physical pain, alcoholism, mental morbidity, and so forth. The very fact that the accused was fond of his wife brought the case on common ground with the leading cases of admitted homicidal mania. On the assumption that this man was sane ; the circumstances of the crime were simply inconceivable and preposterous. There was no case on record of a sane man committing a nrarder in such circumstances. The sudden commission of such a crime in such circumstances was characteristic of the insane homicidal impulse. All the circumstances leading up to and attending the accomplishment of the crime were characteristic. This man had been "a very religious man in the past, a close student of the Bible always, somewhat of a theologian. Members of his family had told the court how his religious fervour had in the past attained to the proportions of religious mania, and made the home atmosphere irftolerable. Religious mania, or the morbidly religious temperament, frequently accompanied and co-existed with the homicidal mania. The yell of satisfaction that followed the accomplishment of the outrage in this case was equally characteristic of the homicidal maniac. in past years this man had suffered a dangerous blow on the head from a falling stone in a quarry, and the man believed (possibly by delusion) that a piece of stone was still left in his head. When he was secured after the crime he made no secret of his responsibility, and offered to go to the police station. His demeanour was strangely cool and collected ; he said what would be the most extraordinary things in the mouth of a sane man. The man's delusion that a young fellow like Clark was waiting to step into accused's shoes with a woman old enough to be his mother was in itself a sufficiently extraordinary and insane illusion. In short, all the evidence pointed to the fact of the accused's insanity at the time of the crime. His Honor, summing up, said murder was defined in the code to be oulnable homicide, and (as to this case) was of two elements. r f a person meant to cause the death of the person actually killed, tEat was undoubtedly murder If a person meant to cause bodily injury that might cause death, and was reckless as to whether he caused death or not, and if death in fact ensued, that also was murder. The main points made for the defence in this case we/c: — (1) That, inasmuch as death resulted from the wound in the throat, there was no evidence that the wound in the throat of the deceased was caused by tho accused, and that it must have been caused by some other person; and (2) that if death resulted from an act of the accused, the accused should be acquitted on the sxound of insanity. The iiirv had to find the facts of the case. He 'did not quarrel with tho authorities Mv Barclay had cited. Tt was auite true that in d^terroinintr whether a person was guilty of the offones of murder the jury had to consider whether or not that person intended to kill tho person with whose murder he was charged. If a man's intellect was obscured, or if he acted under such irresistible and uncontrollable immilse as came within the limits of homicidal mania, then the question of intention was absent, and so the references made by Mr Barokv to tho summings-up of certain English judges were quite proper. A person charged with" crime was only entitled to acquittal on the ground of imanitv if his mental condition was such that ho was unable to appreciate the nature and quality of the act he committed. As to the death of the victim in this case, it was sßown by the medical evidence io have resulted from the wound in the throat. The defence contended that that wound was not inflicted by the accused, and, in fact, must have been committed by some other person. The jury must consider whether the evidence gave ground for that inference. If was important to consider thai during the operation of Iho crime tho little girl, whose conduct was certainly heroic, must have been labouring under great excitement, and that while the little boy Dan was in the room it was in partial darkness. It was impossible that tho children should note and describe every incident that took place durinpr tho progress of that tragedy. None of the family could be suspected of committing iho foul crime, and Clark, the only person who could conceivably be suspected., was excluded from suspicion by the evidence of the medical witnesses. Clark was at the police station at 12 minules to 10. nnd did not leave the station until tho police came to accused's I'ouse. Tho only inferpneo was that the accused cut the woman's throat, and the evidence would justify the jury in coming to that conclusion. If that act was established by the jury, they must consider tha

plea by which the accused sought to excuse himselt from legal responsibility for the act. They must consider the state of accused's mind. The law presumed everybody to be sane until the contrary was proved. When any person was charged with a crime there was a legal presumption of innocence, which had to be rebutted by the Crown. When the Crown had rebutted the presumption of innocence there was a legal presumption that the man who had committed the crime was sane and knew the nature and consequence of his act, and that presumption had to be rebutted by the accused. If the jury had any reasonable doubt as to the sanity of a person whose crime had been established, that doubt must be resolved in favour of the Crown. If a jury had any, reasonable doubt that an accused person committed the act, that doubt must be resolved in favour of the accused person. The law provided that no person should be convicted of an offence committed when the person committing it was labouring under a disease of the- mind to such an extent as to render such person incapable of understanding the nature and quality of the act he was committing. The jury * must apply that rule in this case on a full and careful consideration of the evidence. To sustain a plea of insanity the accused person must establish to the satisfaction of the jury that he did not know what he was about, and that his mind was in such a condition that he was incapable of knowing that what he was doing was wrong. If a person suffering under an in-> sane delusion believed that another person was going to kill him, and therefore, in order to protect his life, killed that other person, that, was not murder. Every man was entitled to protect his own life against the violent act of another. But if a person, had an insane delusion that another person, had been slandering him, or had done some other act which would cause a feeling of revenge even in the mind of a sane person, and, if acting on the feeling of revenge induced by that insane delusion, the man killed that person, he was liable to be - convicted of murder, because that delusion, if a fact, would not in law justify the act committed. Such a mar would not be entitled to acquittal on the plea of insanity. If a person of perfectly sane mind had reason to believe that his wife had been unfaithful to him, and acting- under a sense of wrong killed his wife, that man was guilty of murder. If a man had an insane delusion that his wife had been unfaithful to him, and acting under that delusion killed his wife, that act was a breach of law. In establishing a case of insanity it was matter relevant to the issue to consider the past conduct of the person charged, to inquire into his antecedents and his past state of mind, as to whether he had previous insane delusions and to investigate the state of his mind at the time when he committed the act. The jury would consider any delusions established not as proof of the condition of accused's mind at the time of the crime, but as evidence that would assist them in 'determining -whether the state of Ins mind was such as to prevent him from knowing the nature and quality of the act he had committed and that that act was wrong-i The hypothetical question put by Mr Barclay to Dr Barclay summarised very well indeed this criterion, which went to constitute that of insanity called homicidal mania. In regard to the matter of accused's jealousy, no suggestion could be made against the woman's moral character, this being beyond doubt. That sha had been a good mother was proved by. the appearance and demeanour of the children. But that there were certain circumstances which justified him in having som< grievance against Clark was also beyond doubt. A question the jury would have to, consider was whether the suspicion he had in regard to Clark was of such an absurd! nature as to justify them in the conclusion that it was an indication of insanity on accused's part or of jealousy. The occurrences surrounding the commission of the act had next to be considered. What was the accused's demeanour on the day of the act and immediately prior to the aetl As to that they had the evidence of th« children of the accused — Horace, Harry. Dan, Rhoda, and Flora. There was nG reason why the jury should not accept as absolutely truthful the evidence of ail witnesses who were members of the accused's family. There was no doubt that Harry perceived something a little different from his father's ordinary demeanour; but of course the jury had to consider whether the circumstances noted — a wild or fierce look in the eye of the accused — was indicative of the approach of such an, irresistible homicidal impulse as to justify them in saying that the accused did not know what he was about when he committed thi* crime. For some time prior to the event of the 28th June the accused had been suffering from rheumatic and sciatica pains, and on the night of June 27th he had had a bad night's rest. Rhoda said that since "her father's return to the house he had been kind to the children, and that there had been no serious quarrelling. She also had heard her father complain of pains and sleeplessness. She also saw a strange look in her father's eyes shortly hoforo tha occurrence, and both she and Florri-e noticed that ho was grumpy that night. But it did not follow because a man had a fierce or angry look in his eye that he wa=s necessarily insane. The fact that the crime was committed under circumstances that made detection unavoidable no doubt had a bearing on the state of the accused's mind. That, however, was not at "all one of these matters that certainly, or even presumptively, indicated that a man was insane, because many acts of violence and some murders were committed under circumstances which rendered it impossible for the person commiting the crime to escape. It was certainly a characteristic of homicidal mania that crimes committed under its influence were committed violently, impulsively, and without apparent cause. On the evening of June 28 there did not seem to _ be any circumstances calculated to irriiate the piisoner, except perhaps th( reference to a possible family party on the following evening. There was evidence that the man's face flushed under the influeues of passion or pain. Such a flush might indicate that there was some injury to thfl head which might interfere in some way with the blood vessels to the brain. While that was one of the indications which was.

jften observed in the pathological examination of patients afflicted with insanity, a lushed face was net in itself an indication of 'the presence of insanity. • Still, coupled with, other matters, evidence as to the flushed face was of importance, and must bo weighed by the jury. Rhoda said her father, seemed to be gratified after the crime was committed, and Flora spoke of the frightful yell of satisfaction he gave, like that of a madman. The jury were .entitled to give that circumstance consideration. The yell may have been the cry of satisfaction of a homicidal maniac, or merely the cry of satisfied revenge of a man who had accomplished the destruction of a woman he believed to be unfaithful. JThere was no evidence that this woman was other than a pure woman, but there was no doubt that the accused thought otherwise. The statements he made immediately nfter the crime must be clearly and carefully considered." Now the absence of imotive was a very strong factor in determining whether an accused person was sane or insane. Although this man was deluded, "the" settled conviction in his mind that his wife had been unfaithful to him for years supplied a sufficient motive. It was for the jury to cay whether that was a sane -_ or ' an insane delusion. It was suggested .■also that the man's mind had been un-

• balanced by etrong religious feeling. One "of his sons said the accused seemed to have religious " mania. The explanation seemed ■ itoTbe; that J the man was of strong religious feeling, that ' he had a_ narrow, system of . j ihe'ology, and that he - endeavoured to mi'- } ipi-ess'his .views ;oir those about him' till, in ~ -krhe'- phrase of one of them, they were full " "jjup" of it, and told him so. There was no .. evidence that the accused suffered from •' Religious mania, The man had strong afeligious views, and belonged to -what had . .(been called a narrow sect. On one point he held the peculiar belief that suicide was a- greater crime" than murder; but some •i>ejple_ who- could not be termed insane iheid that belief. There were indications that accused was a man of violent temper — at anyrate when under influence of drink. The onus of establishing the plea (that the accused was. of,. r unsound mind a-csfcod on the' accused. If the jury had any doubt about his sanity that doubt must be i-esolved in favour of the Crown- Had the accused established the fact that at the

*ime of --this crime he did not understand

the nature or squality of the act nor thafc , what he was doing was wrong? If those essentials were established the man was

fintitled to acquittal on the ground of insanity. He could not be acquitted on the ground of specific delusion, but the jury

could consider any specific delusion as cvi-

dence regarding th© .state of the accused's rhind. > The man could be found guilty. , could not-, he found guilty" of manslaughter on the evidence, nor would the jury probably find that the evidence justified a general verdict of- not guilty. He coiild' - onrjr be _ found not guilty en the ground of insanity on the application of the rules already enumerated. At 3 o'clock the jury retired, and at 4 .o'clock, returned . with a. verdict of " Guilty." ' / . ' -

The, prisoner ,said 'he' had' nothing to say. Sis Honor- pronounced the death sen- ■' tenee" in' the". customary formula, and the , • prisoner, who manifested no emotion, was ' removed from, the, dock.'