SUPREME COURT.

Otago Witness, Issue 3662, 20 May 1924, Page 23

SUPREME COURT.

CRIMINAL SITTINGS. (Before his Honor Ur Justice Reed.) Retrial of kelly and edmoxds. The Supreme Court was engaged on Tuesday in the retrial of George Arthur Kelly and Richard Pahara Edmonds, who were charged with: 1. On or about November 28, 1923, at Dunedin, unlawfully using an instrument with intent to procure a miscarriage. 2. On the same date, at Dunedin, unlawfully supplying an instrument to the girl knowing that the same was to he unlawfully u3ed to procure a miscarriage. At the first trial the jury failed to agree. Mr Irwin (in the absence of Mr Hanlon, who -is in Christchurch) appeared for Kelly and Mr Callan for Edmonds. On the order of his Honor all persons, except court officials, were instructed to withdraw from the court At the request of the Crown Prosecutor (Mr Adams), his Honor ordered that the name of the girl concerned should not be published or any details cf the house or U*e locality connected with the case. In opening the case, Mr Adams addressed the jury on similar lines to those at the first trial. He detailed the allegations that Edmonds arranged with Kelly (known in the transaction as “Dr Casey") to perform the operation, and that £2O was paid for its performance. The girl would bo called and would state that an operation had teen performed on her by ‘‘Dr Casey." She had afterwards identified the house whore it was stated the operation had taken place. The girl had been taken ill. and bail been conveyed to the Hospital. Medical evidence would be called to show that the girl’s condition was consistent with her story that an illegal operation had been performed on her. The girl had afterwards identified the accused Kelly as the man who had performed the operation. He would like io point out that the girl was what was known as an accomplice—she was herself a party to the crime of which she spoke ff however, the Crown were to adopt the view that it must prosecute all the parties involved in the charge, there would not be ft possibility of prosecuting in any case. That was the reason why the girl was treated as a witness and not as an person. His lerfned friends would put it to them that the evidence of an accomplice should be corroborated and that a jury must be very cautious without corroboration. That was perfectly correct, but. the question finally to be considered by them was whether or not it was a true story that the girl told. The Crown then proceeded to call evidence on the lines given in the lower court, and at the first trial of the two accused, and this was continued well on into the afternoon. The Crown Prosecutor and the counsel for the accused addressed the jury. His Honor in addressing the jury said that the accused were charged on two counts, but they need not bother about the second count. It had been made manifest to them by the Crown Prosecutor that it was quite immaterial which person actually used the instrument. The person who arranged for the operation was equally guilty. The charge against Edmonds of using an instrument meant that he arranged with Kelly to use it. If they considered that Kelly did use the instrument upon the girl for the purpose of miscarriage, then to justify them iu also finding Edmonds guilty they would have to find that he arranged to have the instrument used. They must carefully consider the evidence, and ask themselves the question, Could there be any real doubt about it? If there was no real doubt then they had no right to shelter themselves behind a fancied doubt. His Honor quoted the law regarding the evidence of an accomplice and went on to say that they had the girl’s statement about going to the shop in the Arcade. She had told a straight-out story. Had there been any evidence to contradict her story? That was a point they had to consider. There had been two or three people in the shop at that time, and why were these persons not called if the girl’s story was untrue. Dealing with the uuestion why the taxidriver whom the girl had twice seen had not been called, his Honor said that no question had been asked the police on tni3 point. It would be fair to assume if the Crown called such a witness, that lie might not be a willing witness. There had, however, been no evidence regarding inquiries being made for this taxi-driver. His Honor quoted the girl’s evidence regarding her visit to a certain house in a certain street and her description of the interior and the furniture. The jury had to consider whether she could have fabricated such a story. Of course they could not get much corroboration in connection with that. It was quite clear that Kellv knew tins house. It was quite clear that the girl did not. Kelly knew that the wife of the owner of this house was away and that the owner was at work and would not likely be at home. As to the operation the girl had described how it had been carried out, and according to the doctor’s evidence it was the sort of performance that abortionists indulged in. The medical evidence of the Hospital doctor was that the girl’s condition was consistent with the fact that the operation had been performed at about the time she had said it had taken place. The next piece of corroboration was given by the mother of the girl, who had sworn that Kelly had come to her house and seen her daughter. The mother had not been called in the low T er court, but this was explained by the fact that the matter had been withheld from her. W hen the proceedings had been taken in the lower court the mother had not known anything about them. The whole proceedings had been kept from her. If they believed the mother’s story then it was strong corroboration as to the accused Kelly being the man who had performed the operation on the girl. Further corroboration was given by the evidence of the detectives that the accused Kelly was a constant associate of Wilkinson, and that be had been seen in Wilkinson’s shop. He was bound to draw their attention to this that the girl swore to the accused Kelly having performed the operation in the house, and described how the accused performed the operation. That was not denied. Edmonds’s position, however, was certainly different to that of the accused Kelly. It W’a3 different in this respect, that the corroborative evidence in regard to Edmonds was extremely weak. The use of the rubber stamp was really no cortoboration. They were entitled to say

this: “We think the eirl is telling the truth as against both accused, but bearing in mind the fact that we are warned to act upon the evidence of an accomplice, without seeing that the evidence is corroborated, we must look round for corroboration. The corroboration against Kelly we consider sufficient corroboration. Against Edmonds wo don't think it sufficient.” i herefere although they did not disbelieve the girl’s story they could do that. The corroboration was very, very flimsy as against Edmonds. It was very necessary that they should pay great attention to the evidence. It was an important case not only from the point of view of the accused, but also from the point of view of the general public and the citizens of Dunedin. If this man was carrying on the practice of procuring abortion, then it was the duty of tho jury—if the evidence warranted it, and only then—to root out a plague spot in the city. The jury retired at 10 minutes to 4 and returned at 5 minutes to 5 with a verdict of guilty against both the accused. The Foreman stated that the jury strongly recommended Edmonds to leniency on account of his youth. His Honor said that he would give effect to tho jury’s recommendation in regard to the younger prisoner. He would sentence the prisoners at 10 o’clock the next morning. PRISONERS SENTENCED. The sittings of the Supreme Court were continued on Wednesday morning before his Honor Mr Justice Reed, when prisoners came up for sentence and undefended petitions in divorce were hoard. THEFTS BY GOVERNMENT SERVANTS. Arthur Redvers Wilkins and Alexander Anderson came up for sentence on charges of theft as Government servants. Mr Hay, who appeared for Wilkins, said that the accused was 22 years of age. Learned counsel understood that- he had been in the postal service for about seven years—three years in Invercargill, 12 months in Wyndham, and then for a period in Wellington. fie understood that the accused came_ to Dunedin last August. The accused’s parents were very respectable people who felt the position very keenly. Learned counsel understood that the accused’s work had been done satisfactorily until recently, and on only one occasion had he got into trouble, leading to his suspension for a week. This, learned counsel understood, was the result of the accused entering an hotel during working hours. The accused had not been living at home, and perhaps the absence of Lome influence accounted for his present position. It appeared that the accused had become engaged to a young lady who did not meet with the approval of his people, and in consequence he did not live with them after he came to Dunedin. Learned counsel admitted that the offence tvas a serious one, although the amount was only £l. The accused stated that he cashed the note because he should have collected two fees of Is each in connection with the transfer of accounts. He had no money, and he wished to procure two stamps, which cost Is each.

His Honor said the natural suggestion was that the accused wanted to be sure that the money passed into the control of the Rost Office. Mr Hay said the accused did not know then that a trap had been set for him. In reply to his Honor, Mr Hay said that nothing was known against the accused with the exception of the present offence. Mr E. J. Smith, who appeared for Anderson, said the accused had pleaded guilty 7 to the theft of £ls, which was part of a sum of £3O deposited in the Alexandra Post Office. His official position was that of despatch clerk, and he had no right to be handling money at all; but it seemed that there was a bit of a rush and he was asked to relieve for half an hour. As a result of sudden temptation he took the money. The accused was 21 years of age, and had been employed in the Post and Telegraph Department for seven years, and three months, during the whole of which time there had not been the slightest complaint against him. A 3 far as could be ascertained the accused had not been drinking or gambling, and the only explanation was that he was considerably behind in his payments for board and also required a considerable quantity of clothing. The accused’s salary was £122 per year, or £2 7s per week, out of which he had to pay £1 7s 6d for board, leaving only 19s 6d for clothes and other expenses. The accused was just going on leave at the time, and was worried about his board, which he wanted to square up. He also wanted clothes before he went away. The bulk of the money was spent in paying for board and in the purchase of certain articles of clothing. The accused belonged to a very respectable family. His mother was in poor health, and since his arrest she had been in a state of nervous prostration. The accused was not in a position to make restitution, bat his parents were willing to make restitution forthwith. The accused did not admit the offence in the first instance, but when he returned to Alexandra from his leave he admitted the whole thing and pleaded guilty in the lower court. Learned counsel asked his Honor to take into consideration the facts that it was an isolated instance of theft, that there was sudden temptation, that hitherto the accused had borne an unblemished character, and that he had pleaded guilty. Judging by the reports from the police and the probation officer he was not a boy with criminal instincts, ’this was possibly a case in which the court might see its way to give the accused a chance. His Honor, in passing sentence, said it was a very sad tiling indeed to see two young men just on the threshold of life constituting themselves criminals by stealing. If one were to follow one’s natural inclination the simplest thing would be to say, “Well, they are young men. Grant them probation." But he could not- do that. He had to consider his duty to the public, and his duty to the public prevented him from granting probation to either of them. The position was not as if they had committed thefts outside on sudden temptation. They belonged, or had belonged, to a most important branch of the public service of this dominion. Unfortunately, from time to time there came before the courts men of their age who were in this service and who had committed similar offences. Now it was true that the probation officer considered that they both should be granted probation. The probation officer looked at it from the point of view of themselves individually. He considered that it might be a lesson to them, and that they were not likely to sin in the future. It would be a most convenient and a happy thing for him if

he could accept the same position, but he had to look at it from another point of view altogether. He had to look at it from the jroint of view that there were a largo number of young men coming forward in that service, and if it once got abroad that a man could go and commit acts of dishonesty till he was caught and then have a chance of being released without punishment it would be no deterrent to them.' It was necessary in order to prevent young men of their age from being criminals in the Post and Telegraph Department that he should inflict such punishment as might be a deterrent to those, who might possibly be on the verge of committing similar offences. The sentence of the court was that they be detained for reformative purposes for a term not exceeding 12 months. false STATEMENT AO REGISTRAxt. Mildred Helen Beryl Phillips came up for sentence on a charge of wilfully causing to be made a false statement for insertion in tho Marriage Register Book. Mr Irwin, on behalf of the accused, said that his Honor would see from tho depositions that the offence was committed some two years ago or more. The prisoner at the present time was only 19 years of age. There seemed to have been some difference between her father and mother as to her keeping company with her present husband. The mother was favourable and the father unfavourable. The girl led her husband to believe that she was 21. They were married, and a child was born some 12 or 14 months afterwards. Nothing was known of this false statement until an anonymous note was sent to the police. It was then found that she was much under the age of 21 years when she marrieu. The father now said that he would have given his consent if asked. In all the circumstances, seeing that the young woman had been prosecuted, he respectfully suggested that she had been sufficiently punished. She was living happily with her husband with their one little child. His Honor: I think she has received sufficient punishment in being brought before the court. She will be ordered to come up for sentence when called upon at any time within six calendar months. BURGLARY BY” NIGHT. Leo James M'Gowan came up for sentence on a charge of breaking and entering and theft by night. “Your case, prisoner,” said his Honor, in sentencing him, “has given me some anxious thought. I really do not know what is the right thing .to do for you. Apparently without any reason, for you had ample means, you broke into a shop and stole things from it. I understand everything has been returned. Is that so, Mr Adams?" The Crown Prosecutor (Mr F. B. Adams) said he understood from the police that everything had now been recovered. His Honor continued that he had been in some doubt considering the prisoner’s ago. He proposed to grant him probation. He had a report from the probation officer that he would go straight back to his work in the mines. Was that so? The Prisoner: Yes.

His .Honor said he would be granted probation on the ordinary terms for two years. Mr Adams asked that an order be made for the return of jewellers’ goods in the hands of the police to Mr Souness, and his Honor gave his consent. KELLY” AND EDMONDS SENTENCED. George Arthur Kelly and Richard Paharo Edmonds appeared to receive sentence on charges of procuring abortion. Mr Irwin appeared for Kelly and Mr Callan for Edmonds. Mr Irwin said that Kelly was a young man 31 years of age, married, and with three young children. He had been a medical sti dent, having started his medical career some 12 years ago. His course of study was interrupted by the war. He enlisted and went to the front at an early stage. That seemed to have unsettlr-d him, because on his return he did not seem to have progressed as he had done before he left New Zealand. He married, and lately he had had different occupations, earning a somewhat precarious living working m different trades, he understood. Pie became hard up and committed the offence of which he stood convicted. Counsel suggested that association with another person in tho town wa.s at the bottom of it. That was the allegation of the police. In all the circumstances he could only ‘ask his Honor to deal as leniently as possible w 7 ith him. His medical career was blighted for n-ood. His Honor pointed out that the police report showed that he had clone no regular work lately. Mr Callan said that Edmonds was in his twenty-first year. His father was dead, and his mother lived at Portobello. She was a widow without means, and this young man was her sole support. There was another brother, but he was not able to do anything for bis mother’s support. Accused’s wages from the Railway Department were from £5 lC‘s to £5 15s a fortnight. Counsel respectfully submitted that this very young man had no worldly wisdom whatever. A man cf a little more hardness of character would never have been in bis present terrible position at all. When this girl made her request for assistance if he had thought of himself be would have done nothing, and if a child had been born and a claim made on him he might have escaped. It was very questionable whether he was responsible for the gn s position. He bore a very good character anc! as bis mother was a widow dependent on him and would suffer he ventured to ask that he be dealt with in some way short of being sent: to gaol. One circumstance in bis favour was that lie did not succumb to the very natural temptation to contradict the girl The jury, while convicting, bad brought in a recommendation to mercy couched in the strongest possible terms He asked his Honor to give the fullest possible effect to that recommendation lie submitted that it wa s possible without injury to the public interest to deal with this matter without sending Ibis boy to gaol in bis youth and inexperience. Addressing Edmonds, bis Honor said the crime of abortion was considered to be very serious in the eves of the law, and every person taking part in the procuring of such a thing was liable to very serious punishment, He would take into consideration two facts in Edmonds’s case. One was his age, and the other was tho very I'trcivg recommendation to mercy made. by the jury At the same time it was impossible for him to let it go forth that under any circumstances a man who had taken part in procuring abortion could go abso-

lutely free. Te proposed to inflict quite a short sentence. The accused would be imprisoned for three months, with hard labour. Continuing, his Honor said that apparently Kelly had adopted the practice of an abortionist. It was quite clear that he was mixed up with another man and that he was establishing the business of procuring abortion in this city. it was the duty of the court to endeavour as far as possible, to put down anything of that sort. Apart altogether from the morality of the matter practitioners like the accused practically put a woman’s file in danger every time that an operation was performed. It was impossible to pass over a case of this sort without inflicting very severe punishment. He thought he might possibly be able to help the accused by putting him in a position whereby he could embark on some honest work when he came out of gaol. He proposed to impose a term of imprisonment, to be followed by reformative detention so that the Prisons Board would be able to keep an eye on the accused, and if he was going back to the same class of work he would be put back in gaol. This was done in the interests of the public and to induce the accused to take up some other work when he caine out or gaol. The accused would be sentenced to imprisonment for three years, with hard labour, and this would bo followed by detention for reformative purposes for a further term of three years. DIVORCE CASES. In the petition brought by Mabel Smith against James Pearson Smith, the decree nisi previously granted was made absolute, the petitioner to have the custody of tlie child of the marriage.—Mr C. J. Ix. White appeared for the petitioner, and Mr Irwin for the respondent. In the case William O'Brien v. Clarence May O’Brien and Martin Richard Macalister (co-respondent), Mr Irwin appeared for the petitioner, who asked that a decree nisi be made absolute.—A decree, absolute was granted, the pptitinvov t- L aV e custody of the children of the marriage. HUSBAND A 7 WASTER.” Beatrice, Mary Margaret Owens, for whom Mr Irwin appeared, sought a dissolution of her marriage to James Owens on the ground of desertion. Mr Irwin stated that the couple were married on December 23, 1918, at the registry office, and they lived together for five or six months, after which the respondent deserted the petitioner. A summons under the Destitute Persons Act was issued, but it was withdrawn on the understanding the Owens would maintain his wife in the future. In August, 1919, fresh proceedings were taken, and an orcler was made for maintenance. The respondent wa,s ordered to nay £SO into the hands of the Public Trustee, and that was the only money the petitioner had received. Immediately afterwards the respondent dis- ■ appeared. Every effort had been made, to serve the necessary papers oil him, and eventually 7 an order was made ' sensing with personal service. Evi< ~ was given by the petitioner, who su.ed that the conduct of the respondent during the time they lived together was that °of a “waster.” He used to drink nearly a bottle of whisky every night. They 'had quarrelled about the attention he paid to another woman and he had told her to get out of it. Evidence, was also given by Beatrice Johansen, mother of the petitioner, after which his Honor granted a decree nisi, with leave, to make it absolute at the end of three calendar months. Costs on the lowest scale were allowed against the respondent, disbursements and witness’s expenses to be fixed by the resist] ar. A WIFE'S DESERTION.

John Pcrteous petitioned for divorce from Laura Mary Porteous on the ground of desertion. Mr C. J. Payne appeared for the petitioner and outlined the facts. John Porteous, the petitioner, a farmer at Warrington, said he had been married to the respondent at Waitati in October, 1897 There were two sons of the marriage, aged 26 and 22. In November, 1920, the wife left him and did not return. She said she did net like the country, as it was too quiet. Fie had written to her several times, but she refused to return. They had not lived together since. Allan Wilson, farmer, living at Warrington, the petitioner’s nearest neighbour, corroborated the evidence about the wife’s departure and failure io return. His Honor granted a decree nisi, to be moved absolute in three calendar months. SEQUEL TO SEPARATION ORDER. Catherine Mary Foster petitioned for divorce from John Foster on the ground of desertion Mr F. W. Ongley appeared for the petitioner, and outlined the facts. Catherine Mary Foster, tho petitioner, said she had been married in October, 1900. and there were two children of the marriage. The husband had for a time been on the inebriates’ island. Her daughter, born in 1803, was now married. Her son was between eight and nine years of age. In April, 1919, she had been separated from her husband by 7 order of the court, and she had since been acting as a housekeeper. Her husband had not paid anything under the order. Robert Tames Lowrie, farmer, of Ngapara, said he, was the son-in-law of the petitioner. Petitioner’s husband had not been residing with her during tho past five years. Harry William Kirkwood, clerk of court, produced the separation order made in the Magistrate's Court at Oamaru. His Honor issued a decree nisi, to be moved absolute at the end of three months, the petitioner to have the custody of the children, costs being fixed on tho lowest scale against the respondent. ANOTHER WOMAN IN THE CASE. Mary Ami Ford petitioned for divorce from Thomas Walter Ford on the ground of his adultery. Mr Irwin appeared for the petitioner. Mr Ilay entered an appearance on behalf of the husband, who, he said, did not want to oppose the petition at all The petitioner, Mary Ann Ford, said she had been married in Knox Church vestry on January 3, 1912. She had lived with her husband at Dunedin, Balclutha, Edendale, and again at Dunedin for the last two years. Her husband was a wellknown dairy farmer at Leith Valley. During the last 12 months she had become suspicious of his conduct because he was out every night and sometimes all night. She spoke to him about his conduct. Sh # Yu ad that he had been keeping company'with a Miss Clark. She found in her husband's pocket a mechcai certificate that a .Miss dark was pregnant. As soon as she possibly could she left home, taking the three

j children with her. Ford had since sup- • pliod her through his solicitor with alimony ; of £7 a fortnight. Ho said he was going ! to bring the girl Clark to his house directly ! his wife left. Elizabeth Morris, living at 7 Atkinson street. South Dunedin, gave evidence that ! she knew Miss Margaret Clark. Miss Clark j had lived with her from Christmas Eve till about six weeks ago. She knew Ford, and identified his photograph. He visited Miss Clark afc witness’s house almost every evening. Witness understood they were engaged. Miss Clark was absent from tho house on two consecutive nights in the month of March. She knew that Dr Evans visited her and gave her a certificate thar she was pregnant. Miss Clark was now housekeeping for .Ford in Leith Valley 7. Kathleen Heffernan, keeper of a boardinghouse in Cargill road, said she remembered a couple coming to lier in March last. The girl said her name was Ford, and they stay T ed two nights. She identified the photograph of Ford, and said the woman with him was not Mrs Ford, but a much younger woman. The girl was. wearing a wedding ring, and they both occu-

pied the same room for the two nights. Mr Hay said that no doubt application would bo made in due course by pt4f tioner for the children and in that he would appear for the husband. Mr Irwin: The children are with tl4 mother. Mr Hay : I think all he wants is reasonable access. ITis Honor: I can make an order of interim custody for (he mother with right of reasonable access for the father. He gfUnted a decree nisi to be made absolute in three months, costs being fixed on the lowest scale against the respondent. A NEGLECTFUL HUSBAND. Margaret Elder Somerville petitioned for divorce from John Grey Somerville on tho grounds of desertion or three years separation. Mr Hay 7 appeared for the petitioner. Margaret Elder Somerville petitioned for said she was married on December 13, 1916, at Milton. There was one ehild of the marriage, a boy -born on September 17, 1917. Not long after the marriage her husband got into financial difficulties, and had to make some arrangement with his creditors. She lived with her parents in Milton and afterwards with her husband at North of Auckland and later for a year in Auckland. Her mother visited her in January, 1919, and took the child back to Milton with her. Witness went down in March on holiday and to take the child back to Auckland. Her husband came down to Dunedin in May and spoke to her by telephone from the Excelsior Hotel. She also saw him at tho Milton station as ho went through to Gore. They arranged that she was to stay at Milton and he would return north. When he got in a better position she was to rejoin him and in the meantime he was to give her £2 a week. He sent her £ls altogether between May and November, 1919. In November he came to see her about going away to Samoa for three months on business. She w 7 as agreeable if he could arrange his finances. He could not do that, and she had no communication of any kind from him since. In March, 1920, she had Fo do something for her living, and had entered the Dunedin Hospital where she had been employed till March last. Her husband had recently been in the Milburn district, but had not been to see his child or his wife. Annie Walker, of Milton, mother of (he petitioner, corroborated her daughter’s evidence. __ Somerville had not seen his wife since November, 1919, and he had never come near his boy. She had seen Somerville in the Milton district recently. George Hamilton Thomson, solicitor at Milton, said he had served the respondent with the notice. Respondent had been about the Milton district for the last 12 or 18 months.

lli3 Honor granted a decree nisi on the ground of desertion to be made absolute in three months, the interim custody of the child to be granted to the mother, costs to be allowed petitioner on (he lowest scale. PRISONER SENTENCED. the Supreme Court on Friday Jonas Fi field. who had pleaded guilty to charges of detaining a letter, stealing a postal packet and opening a postal packet, was brought before his Honor Mr Justice Reed for sentence. Mr J. B. Callan. who appeared for the accused, said lie desired to explain the circumstances accounting for the non-appear-ance of Fifitld on Wednesday. Although the accused came from Oamaru, his only near relative was a brother-in-law in Ashburton, to which place he had gone. The brother-in-law thought that arrangements had been made for the police to notify the accused in plenty of time to enable him to come to Dunedin when he was wanted. Nothing was heard about the matter, however, until 6 p.m. on Tuesday. Learned counsel went on to sav that he had considered it his duty to tell ihe people concerned that his Honor could not deal with the accused in a different way 7 from that in which he had dealt with other postal officials who were sentenced. His Honor: No, I cannot. This is a rather worse case than the others, but I do not propose to deal with it differently. Mr Callan proceeded to state that the accused lost his father when he was two y 7 ears of age, and lost his mother when he was eight. lie had been knocking round the world more or less ever since, and had not had much of a chance. IT is Honor said he could not deal differently with the accused from the others. The accused was in the post office, and had committed a breach of trust in a matter of great importance to the general public. The accused would be detained for reformative purposes for a period of 12 months.