THE NIGHTCAPS CASE.

Otago Witness, Issue 2818, 18 March 1908, Page 38

THE NIGHTCAPS CASE.

A CURIOUS FINALE. At the conclusion of the trial of John liloyd, on a charge of manslaughter arising out of the disaster at the Nightcaps coal mine, an unusual complication arose. The case had lasted three days, the evidence being mainly that given at previous investigations, and counsel on each side had addressed the jury. His Honor summed up afc length as to Lloyd's condition on the morning of the accident. His Honor drew attention to the evidence of those who had seen him shortly after he arrived at the mine from Carson's house. They all said that when they met him he was perfectly sober, and there seemed to be nothing in his conduct to show that he was not in his right renses except that he went for men himself instead of sending someone else. What they had to find out was whether he was flack or whether, he was not ; the cause of ihe slackness was quite immaterial. Frame was at the scene of the accident at 12 o'clock^ and apparently there was no danger then from the fire, and the ventilation was all right. At 5.30 in the morning Sbmerville made an attempt to turn on the watertap, but had sickened from the effect of black damp. This was at a considerable distance from Carson's heading, and behind the fire. It could hardly be said that because Somerville was made ill by black damp in a different part of the mine there •was any risk of black damp in Oarson's heading, and up to this time that v~as the only evidence Lloyd could have of the mine being unsafe. Dixon, Somerville, and M'Leod were sent to put up a framework for a brattice which would serve to block off the air from the fire. Up to that time the only indications of danger were Somerville'6 illness and the extinguishing of Lloyds lamp, toth of which incidents happened at different parts of the mine. There was Co suggestion that there was any black damp in the neighbourhood where these three men were sent to put up the framework. Neither fire damp nor white damp had ever been known in the mine, and fchere seemed to be no indication of danaer ty> life or of serious injury to health threatened against the three men. sent in

to put up the framework. There was nothing to 6how that while putting it up these men suffered at all. It was less- than half an hour after these men came back that Carson and^ Welsh were sent down. J3alf an hour before they went down there was no question as to the sufficiency of the ventilation at this particular point. The jury had not to decide the cause of the accident, but whether there was culpable negligence on the part of the accused which caused or contributed to the accident, and without which the accident would not have happened. And they had to consider the matter, not from their present knowledge, but rather by reference to what had been the knowledge or the means of knowledge available to Lloyd at the time he sent these men into the mine. It was very easy to be wise after the event, but the iurv had to determine what knowledge accused had of the condition of things in the roadways of the mine along -which these men had to go and at the place to which he was sendingthem. Did he know, or ought he to have known, or hac] he reasonable grounds for believing that at the time he sent the two men into the mine these particular parts — not the other parts — were dangerous? The three men who "had worked at this spot the previous night did not complain of want of ventilation, and one of them was perfectly willing to go back again. That vra3 the position. What happened afterwards when Lloyd came out of the mine knocked up really had no bearing upon the present case. Lloyd was in such a state that he could not be expected to do anything for a few minute 1 ?, and by this time there was little hope of saving the men. It was for the Crown to prove that there was neglect of duty on the part of the acoused, and that in consequence of the neglect of duty these men met their death. DISAGREEMENT OF THE JURY. The jury retired at 5 p.m. At 6.30 his Honor ordered that the juryshould be provided with some refreshment. At 9.15 the foreman came from the juTy room and announced to his Honor that 11 of the jury had decided at once in favour of an acquittal. One of their number was of a different opinion, and gave no particular reason for differing. He appeared to be deaf and somewhat dull, and had said f'l.t his Honor had "made a mistake"

in the view he had taken of the case, as expressed in his summing up. His Honor asked counsel what the position would be if the decision of the jury ■were noted and the jurors discharged. He supposed that would be an end of the case. Mr Macdonald said that when he learned the state of the poll in the jury room, he had thought to fall in with the suggestion now made by his Honor. He would make a representation to the Government in connection with the case. He could not do more than that, because it was by direct instruction from the Government that he was taking the proceedings. If the jury had decided, he would ask his Honor to postpone the new trial until the next sitting, and he would confer with the Government on the subject. After the expression of opinion from the bench it would probably be the finish of the proceedings. His Honor suggested that he might say a word or two to the jury with a view to getting the one juryman to reconsider his opinion. He should look at it that, a« the other 11 had come to a unanimous decision so quickly, he was probably in the wrong. The Foreman: We have been trying to convince him of that for about two hours. It was agreed that the jurymen should hear the advice of the judge, and, when they v.ere in their aeats, his Honor addi'essed them, saying that he understood they were all agreeed except one. He would point out to that gentleman that, after hearing the evidence for three day 6, and 11 of his fellow-citizens had made up their minds pretty promptly, there was at least the probability that he was wrong. It was a juryman's duty, 'f he really understood the matter and had formed an opinion, even though he differed from all the rest, to hold to his opinion. But at the same time if there were 11 men thinking one way who had formed their opinions pretty promptly, it certainly behoved" him to go very carefully throjgh the whole oa.«e and see after ali if he was not wrong. He did not think he could say more. It I was a great inconvenience to the public | that the jury could not agree, and he - thought some little consideration should be f given to that. At the same time, as he had said, if having heard the evidence and duly considered it, the juryman formed an opinion, he was entitled to stick to it. But he must appreciate the evidence, and must not let prejudices or outside ideas come in for a moment. If 11 went one way, it was the other man* duty. at least, to go very carefully into the facts to see, after all, if he was not wrong. ! The jury thereupon retired again. The sound of a mighty argument was heard by those waiting in the court, and the jury presently returned. The foreman said that 11 unanimously favoured an acquittal, and the twelfth now gave no answer. ! Mr Hanlon: A man who won't give an answer to the question of the court should not be on a jury. His Honor asked which juryman had not given an answer, and remarked that it was most awkward that they should have 11 " obstinate jurors." ! Leonard Bell stood up among his fellowjurors, and in reply to the question put by tho Bench eaid that he held that the prisoner was guilty, and he had said so in the jury room. As to his alleged deafness, his remark was, " I only heard one side." His Honor then discharged the jury, expressing regret that their efforto had been futile. Accused was admitted to bail of £100, and one surety of £100, until the next eittinj? of the Supreme Court in Invercargill.