COLDSTREAM ESTATE MURDER.

Otago Witness, Issue 3624, 28 August 1923, Page 23

COLDSTREAM ESTATE MURDER.

TRIAL 01' KISSEL.

GUILTY WHILE TEMPORARILY INSANE.

CHRISTCHURCH, August 21. A plea of not guilty was entered by Albert Frederick Maxwell Kissel, aged 18, when charged in the Supreme Court with the murder of James H. Mackenzie, at Coldstream, on June 12. Challenges were numerous. The Crown Prosecutor said that Mackenzie was undoubtedly shot by Kissel, who might have expected financial benefit from Mackenzie's death, as he was the sole legatee under an unsigned will. Having had a night and a morning to think over the ©rime. Kissel's nerve may have failed him, accounting for his confession of the crime. Evidence was given by Robert Jarves Martin, manager at Coldstream, who said that Kissel said he was mad, and nad previously shot a girl. Kissel was first employed on the estate in January, when he caino to visit Mackenzie, and lived in his hut. Cross-examined, he said Mackenzie, in his ■will, referred to “my well-beloved Max Kissel,” and was always exaggerated in his praise of the youth. wVitness had a boy of 10, but he had never complained of Mackenzie’s conduct. Allan Gourlav, school teacher, gave evidence that Kissel sometimes asked witness peculiar questions. At meal time on one occasion he suddenly burst into a fit of laughter, apparently uncontrollable. Mr Acland (who appeared for accused): On the day following the tragedy did he •eem to be absolutely distressed? —Yes, nervy and broken up. Was his mental state disturbed —Yes, judging from the way he spoke. Mr Donnelly (Crown Prosecutor): Did you ask him what was the cause of the fit for laughter?—No. I didn’t ask what the joke was. David Little, farmer, near Coldstream, on whose place Kissel was employed at the time of the tragedy, said that Kissel’s conduct while he wa3 there was quite all right. Mr Acland: Did Kissel once tell you he had had a horrible dream? —He said he dreamt he was sitting crying with a girl on each knee, and two more fighting with knives. Have you seen him hysterical?—Yes. Was your wife frightened of him? —No Didn’t you tell him your wife was frightened and wanted him to clear out? —I told him something like that after he had killed Mackenzie. * Did he tell you he had seen Mackenzie’s face in the paddock or heard his voice there?—No. To Mr Acland witness said that Kissel seemed to be particularly anxious to get away on the night before Mackenzie’s body was found. George Birch, gardener on the Coldstream Estate, said that Kissel was in his company for about two hours on the day the body was found. Kissel had a very vacant stare in his eyes and looked dazed. When he was told of Mackenzie’s death he collapsed and screamed and kicked like a madman. He seemed to be acting genuinely. He shed tears. Mackenzie called Kissel his darling boy and said that he would do more for him than for anybody else. His praise was very exaggerated. Mackenzie wanted to have Kissel taken on at the Coldstream Estate as cowman. Mr F. S. Wilding, who appeared with Mr Acland for the defence, in his opening address, said it might appear that the facts were simple, but their very simplicity suggested there was something that had not been heard. The facts that were to be made known would allow that Kissel was an unfortunate victim and that the death of Mackenzie was only an incident in the affair. The defence set out to show that Kissel was in a state of mind that did not render him lawfully liable for his acts. fOie state of mind oould be arrived at only from certain facts. The facts adduced by the Crown were clear and accepted. He would classify the facts to show Kissel’s, state of mind as follows: Personal history, family history, story of the crime, and accused’s state of mind before and after the act, The story opened when the boy, at the age of nine, met Mackenzie at Lyttelton in connection with Sunday School work. Since that time the relations between the man and the 'boy had been of a revolting character. Mackenzie had used religion to obtain an influence and asoendancy over Kissel He had been wickedly cunning, and in the course of time Mackenzie induced the boy to visit Quail Island, where Mackenzie’s sinister influence did not languish. Mackenzie did not lose sight of the boy until he was 15 years of age, when the boy was well grounded in a pernicious habit. He obtained work in the country and in the meantime Mackenzie wrote affeotionate letters to the boy. The habits inculcated led to a condition of sub-normality, and so it was, counsel contended, that Mackenzie held his sway in Kissel’s life. Then the fateful day arrived, which was the culminatpoint to the particular state of rnind which had been formed. ‘‘TV whole of the facts will bo put before you,” said Mr Wilding, “and you will haive the assistance of medical experts who, I may say, are the foremost in the land, and after you have heard the whole of the evidence it will then be for you to say whether this boy knew right from wrong, or whether he knew what he was doing, or whether he wag entirely a victim of a state of mind bereft of moral reasoning or •elf-control.” His Honor: To put it plainly to the jury—that he was insane at the time. I do not think you can go so far as that. 'As far as our law is concerned a man is Wholly sana or insane at the time of his offence. The question the jury had to decide, his Honor added, was whether Kissel was insane or not at the time of the ■hooting. August 22. When the murder charge against Kissel was resumed to-day evidence was called for the defence Sarah .Maxwell Barwell said she was Kissel’s mother He would be 19 years of age *in December next. In 1914 she lived mt Lyttelton with her former husband. She tnet Mackenzie at the Sunday school of the Holy Trinity Church at Lyttelton. Kissel came home and said: “There was moh a nice man who taught Sunday school to-day.” Kissel then wae eight years of

age. He asked her to invite Mackenzie to come to their house. He became a frequent visitor. He then lived on Quail Island. Kissei invited Mackenzie there for several years. Later her boys went to St. Michael’s School. Mackenzie offered to pay for Max (accused), but she said that he could not go without the ether boy. Mackenzie then offered to pay for both boys. He always seemed to be attached to accused. He kissed him and had his arms around him on the sofa when reading to him. The Crown Prosecutor: Did you object to that?—Yes, and Kissel’s father did, too. Did Mackenzie tell you anything about his past life?—No. Witness added that Mackenzie wanted to educate Kissel at Christ’s College for the church, but, not wanting to be under an obligation to him, she sent her son on a farm. Later Mackenzie stayed with the family a t Lobum. He was just as affectionate to the other son as to accused. She had a daughter who walked in her sleep, and she believed accused’s halfbrother also did so. Iler first husband was moody, with a violent temper. The judge disallowed a question as to witness's opinion of her first husband’s mental condition. She said he always took care of an old revolver, and said he had two bullets —one for himself and one for her. Agnes Violet Joseph, whose son Arthur had been a fellow-pupil of Kissel’s at St. Michael’s, said she asked to take Kissel into her home and did so. Mackenzie arrived several times and also wrote to Kissel. On one occasion Mackenzie telephoned from Quail Island asking that Kissel should go to the island. Kissel was much agitated, and said he did not want to go again, as his mother had told him not to. Kissel was moody and thought everybody was against him. Arthur Ernest Joseph, son of the previous witness, said that he, with Kissel, stayed on Quail Island during the school holidays. Kissel slept in the same room as Mackenzie. Witness had a room to himself. There was only one bed in Mackenzie’s room. Mackenzie seemed like a father to Kissel. Jacob Kissel, brother of accused, said that on visits to Quail Island accused and Mackenzie slept in the same bed. The judge interposed with a question during the evidence of sleep-walking as to whether it was suggested that accused committed the crime in his sleep. Counsel for the defence replied in the negative, but said the defence desired to prove automatism. Accused then entered the witness box. He gave evidence clearly, and stated that he first went to Mackenzie’s bed, because he was invited to do so if he felt frightened during the night. Witness then detailed revolting behaviour alleged to have been committed by Mackenzie. Kissel, continuing his evidence regarding the night of the tragedy, said he did not remember going to the hut and getting a rifle. He remembered having difficulty with the gate at the woolshed, but he did not know why he was there. He next remembered being in the court yard, but could not recollect an explosion or whether Mackenzie made any noise when the shot was fired. He remembered nothing more. Kissel, in describing what happened after the fatal shot was fired at Mackenzie, said: “I had very vivid dreams that night. I dreamt I shot a girl. I got up as usual next morning. I won’t say the dreams alarmed me, but I had suspicions that things were not quite right. I went, to work. I couldn’t get Mackenzie out of my mind. He wasn’t haunting me or going alongside me, but I went through the hefl I had had with him in connection with the practice he had taught me. I had dinner and went to my hut. I saw that the rifle had been used. It began to dawn on me that there was more in the nightmares than I thought. I saw that there were two bullets where there should have been three. I thought with horror, ‘Have I really killed him?’ I asked Mr Gourley if he thought I was sane. My words came out all of a jumble. What Gourley said in evidence must be right. I wa s what you’d call disturbed by that time, and I couldn’t leave things as they were. I went over to Coldstream in tha direction of the house. Outside the gate I saw Martin and Birch! I wanted to get the uncertainty over as soon as possible. I asked if I had hurt Mackenzie. Martin said: ‘You’ve killed him.’ It all came on m e at once that it was no dream—that I was a murderer and a criminal, and I collapsed on the ground ” “Did you go out shooting with Mackenzie?” asked counsel.—“ Only once with him alone.” Could you have shot him then?—l had several opportunities to do so when it would have gone off as an accident. In everyday life I could not have brought myself to kill him, although I wished him dead. Frances Beatrice Taylor sister of Kissel said that Mackenzie’s attitude towards her brother was one of exaggerated affection Mackenzie used to put his arms around him and kiss and hug him. Mackenzie used his religion as a cloak to cover up Ins past life. Mr Aeland (for the defence): What did you know about his past life?—Nothing, except what my instinct told me. I always disliked him. He had a big influence over the boy. What- was Kissel’s attitude towards Mackenzie?—He did not want to go to Mackenzie, but he went to him at Christmas time on one occasion. To Mr Donnelly (Crown Prosecutor): Witness said she knew that Mackenzie was outwardly a very religious man and greatly interested in church work. Mr Donnelly: Did you know that Mackenzie took his job at Quail Island because he wanted to do good to others? - That wasn’t what he told us. He said he took it because be was out of work. You know that Mackenzie offered to pay for Kissel to go to Christ’s College?—Yes but Max wasn t a good enough scholar to go there. But be bad his proficiency certificate?— No. Do you consider it fair to sav as you did that Mackenzie wa3 only a hypocrite, and used his religion to oioak bis past?— No reply to this question was given. Do you consider that a fair statement to make of a man who is dead, and can’t be here to speak for himself?—l would say it if he were alive. I’m here to say what I think. Do you know that Kissel was a beneficiary under Mackenzie's will?—No. Did you know of the existence of any ■will signed or unsigned?—l didn’t know of any will. Mr Donnelly read Mackenzie’s unsigned will to witness and a letter addressed to Kissel, and said: “Do you think that’s the letter of a hypocrite?”—No, I don’t.

Mr Donnelly: Do you still think it’s fair to say tins man was a hypocrite?—Yes. is there anything that can make you change your mind?—No. Mr Donnelly: I’ll leave it at that. Kissel gave his evidence in an extraordinarily clear manner, showing a command of English which amounted to eloquence. He was subjected to a severe cross-examination by Mr Donnelly (Crown Prosecutor). Kissel denied that ho ever tried to blackmail Mackenzie. Mr Donnelly (to accused) : Do you ever remember discussing the question of murder with Walsh?—Yes, a remember on one occasion being down in the dumps, and I forget whether I said I was tired of life and had one more act to do. I said words to the effect that there was a certain person I would like to kill, an<l then swing for it and get out of it altogether. Walsh said you asked him how old a person would need to be to be hanged, and that you had a jolly good mind to shoot your “old mother.”—l can’t remember that. Have you any recollection of having told Walsh that you had a jolly good mind to shoot your mother? —No. W hen did you first realise that what you and Mackenzie were doing was wrong?—l suppose it was when I was about 15 years of age. I was warned by a man that 1 was doing wrong. Dr Percy Chisholm (specialist in nervous diseases) gave lengthy evidence of a technical nature. He said he considered that at the time Kissed committed the crime he was suffering from a disease of the mind to such an extent to make him incapable of understanding the nature of his act. r[ _ August 23. The Kissel murder trial (which the Crown Prosecutor stated would last all day) was continued before Mr Justice Reed with the cross-examination of Dr Chisholm by Mr Donnelly, Crown Prosecutor. Mr Donnelly: You will agree that this crime was more gross than usual, because ■t was the murder of a sleeping man, unarmed? Witness : Yes. And that, the plea should be proved up to the standard provided by law? —Ytes. I understand that you don’t say Kissel’s irresponsibility at the time was insanity? You say he did not know he was shooting Mackenzie—didn’t know the physical act he was committing?—His personality did not know the nature of the act. His personality did not know of the shooting. One side of him was aware of it, but not his personality. The value of your opinion depends on the acceptance of Kissel’s statement?—Yes. 'bhe trial occupied the whole of the day. Three specialists gave evidence for the defence and two for the Crown, while certain other evidence was given in rebuttal. August 24. * The trial of Kissel for the murder of Mackenzie, which evolved into the most important murder trial in the dominion and probably the most important under the British criminal code from a legal and medical point of view, was concluded this evening. The day was taken up with addresses by counsel and his Honor’s summing up. Mr H. D. Acland (counsel for prisoner) said there were only three possible e- planations of the tragedy. If it had been for revenge the circumstances would be rational. All the evidence showed that Kissel at the time was not rational. The only thing to connect Kissel with the tragedy apart from his own statements was the cartridge from his rifle. The second explanation was that he was after Mackenzie’s money, which was absurd. The third explanation was insanity, and that undoubtedly was the real one. There was no other possible verdict. The evidence demanded a verdict of not guilty on the ground that Kissel was insane at the timo of the tragedy. Mr A. T. Donnelly (Crown Prosecutor) said the jury should demand that the defence of irresponsibility should be proved up to the standard allowed by law. The case wag of importance to Kissel, but it was also of great public importance on account of the unusual defence of automatism. The fact that it had not been raised before raised the suspicion that it might not be well founded. He submitted that the will left by Mackenzie showed the relationship between a kindly and lonely old man and a boy in whom he was deeply interested. _ No perversion had been disclosed. Kissel’s story did not bear the stamp of truth. The theories advanced by the doctors must be carefully contested. In automatism it was common for a person affected not to remember anything that took place when he was under the influence. The doctors for the defence differed in that respect, there being a conflict between the opinions of Dr Chisholm and Dr Bevar. Brown. In view of that conflict how could the jury agree a 3 to applying" the principle of automatism to Kissel’s acts? The doctors themselves differed in regard to the extent of that novel and obscure science. Kissel was not insane. The doctors said that they would not certify to him. He was an ordinary, well-developed, intelligent young man. There would be no use in sending him to a mental hospital, for there were no grounds for keeping him there. The mental conflict about which so much had been said was the ordinary conflict that everybody experienced. He concluded by saying: “The medical defence set up is without parallel in the history of our criminal law. The doctors could give no authority in support of their evidence. • This defence is based on a new and undeveloped science which, if it is a science at all, is in the realm of doubt, debate, and dispute. It is a defence that will rmdermine the whole of our criminal law.”

Mr Justice Reed, in his summing up. said t.haJ no one could look into the mind and observe its working. The law was not a medicine. It was charged with the protection of society, and he asked: “Did the accused know the nature and qualitv of the act he committed, and did he know it was wrong?” It evas only commonsense that the man knew the nature of his acts. Any widening of the definition by letting in fantastic theories would place society at the mercy of every thief, navisher, and child despoiler, who could prevail upon a jury to believe that some' function in his brain was not working at the time he committed the offence. The experts in psychological medicine did not agree. The idea of the Mackenzie complex dominating Kissel’s mind depended entirely on Kissel’s statement. If the jury decided to discard the psychological theory and turn to the ordinary facts they would find that one of the first things submitted to juries under this head was that of hereditary taint. The evidence of anything hereditary was very very meagre. The jMst thisag as a rue was evidence about

the per-v n concerned to show abnormal acts previously indicating abnormality. The evidence of that nature was also light. His Honor finished his summing mp at 3.50 p.m., and the jury retired. , Th t jury returned at 4.43 and asked his Honor whether a verdict of guilty while temporarily insane would be equivalent to a verdict of not guilty.—His Honor : Yes. You would return a vjrdiot of not guilty on the grounds of insanity. In that case I would ask you two questions : 1. Waj t.he accused insane at the time of the commission of the offence? 2. Do you acquit him on the ground of insanity ? The jury again retired, and returned at 7.42 p.m. In answer to the registrar, the foreman said: “We find the prisoner guilty of murder while temporarily insane, with a strong recommendation that he be detained in a suitable institution.” His Honor: That amounts to a verdict of not guilty on the grounds of insanity. How do you answer the questions I put to you? The Foreman: To the first we answer Yes. The second we are unable to answer. His Honor: You have answered it in your first ouestion, Mr Foreman. You must find that you acquit him. The Foreman: We are not unanimous on the second count. His Honor : I Ihink you will have to find him guilty while temporarily insane, which means that you find him not guilty on the grounds of insanity. At all events you don’t acquit him on any other ground? The Foreman: No, your Honor. His Honor then announced the verdict, and added that the prisoner would be kept in strict custody at Paparua till the pleasure of the Minister of Justice was known.