Supreme Court.

Southland Times, Issue 19140, 2 September 1903, Page 2

Supreme Court.

TUESDAY. Ist SEPTEMBER. v Before Hi s Honour Mr Justice DennistOii The Judge look his seat at 10 a.m. (IRANI) JIJHY. The followiHgC rand .Jury was .empanelled .—Mr A 1-. liawke (lorcman) j tt s iireoner. Alex. Gray. ... [„ £»»"}; j tt «; xvingsland, W. Mimson, J. c. Herlman A. li. Campbell, \\. to. White A Dowe' E. n. Pilcner, A. 11. Stock,' And. Sinclair. P. J as. Callcnder, A. C. Froggatt O. ilonywood, Chas. Campbell, Jame* Allan. J. Carswcll, J. Mcllwrick, G. 11 Waymouth, Alex. Storrie. HIS HONOUR'S CHARGE. His Honour, in addressing the Grand Jury, saia there wore only three bills to oe conaiuerea by them. One was against iotjin, a married woman, for forgery. Ine case was. as far as tncy were cc.ncernen, of tde simplest description. A document was presented to Messrs Herbert, Haynes and Co., in this formHank of New Zealand, Gueenstown. pay my daughter the sum of £7 sterling. v\illiam Davits." This was presented tor certain goods bought by tho woman, and the firm refused to cash it. but it was presented for tho purpose of obtaining goods, and their refusal to cash it did not matter. The document was an undoubted forgery, as the person whose name was lorgod would say so, and the |>er.son who presented the ..ocument was sworn to as the accused. These facts should leave no doubt In the mind of the jury that the case <d ould ue investigated by tho potty jury. A letter was received by the father 'of tho woman as follows :— " Dear father, I am in Dunedin. urn abort of money, owe v i few pounds, and might be summoned for it. 1 wrote out an order on the Bank in your name, and tried to cash it with Herbert. Haynes and Co." There was a charge against Shanks, who was charged with carnal knowledge. The child, who was under thirteen years of ago, tvas mot by the man. and, according to her story, he took her over a fence and committed tho crime of Which he> was charged. The evidence went in the direction of showing that the whole offence was committed, it had been put that the child was not an objecting party, and that something had happened to her before with tho same man. but that made no difference in a charge of this nature. They would havo no doubt that there was a prima facie case^ against the accused. Tho giirl had sworn positively, and there was some corroborative evidence. If they were satisfied there was evidence of the identity of the person and that something happened to the girl, it would be their duty to leave the matter to the common jury to try. The only other case was a charge against Vain of setting fire to some stacks belonging to a neighbouring farmer. Accused was a threshing-mill owner, ami the suggested motive nc had for tho erimo was that after havinjr ajrxeed with accused's partner to thresh tho stacks the owner of them revoked the order, gave the work to someone else, and the arson was dOhc in levenge. There was a great number of witnesses lo bo called, but it was not necessary they should have them all before treni as if they were trying the cose. It was very often the case mat the Grand Jury went through tho whole of the evidence when it was unnecessary. The stacks were burnt on a Monday night, and the evidence of witnesses showed that accused was absent from the house for a time that night. And immediately after tho fire the constable found A horse's llOOf marks leading to the stacks that were burnt, und these were stated to corre* spond with the shoes worn by a horse accused had possession of that night. The footprints were those of a hack. A strong piece of evidence was in the fact tnat one of tho witnesses, who was an inmate of the same room as accused, stateti that when accused came homo that morning he made a distinct ai'mißalon that ho h«d sot fire to tho stacks and directed attention to the fire. This man was cross-examined to a consider- ' able extent and something might be said of the vahie of his testimony) but this question did not conic within the scope of inquiry by the Grand Jury. He , thought they would have no doubt that the ca.se should go V> the common jury. . It was most creditable to the district ihat the calendar should bo so short, and consisting of cases which would present no difliculty. The Grand Jtry would probably find that the cases would i occupy very little of their time. 1 TRUE BILLS. The Grand Jury, after a brief retirement, returned true bills in all the cases. PORGEUY. Selina Tobin pleaded " Guilty " to the cnar^e oi loi'ging an order for £7 purporting to have been drawn by ncr * lather, William Davies, jur .). iiucattster. for accused, adinitt--1 cd that he could not as* for prooattoa 1 on account of something -mat happened 1 some years ago, hut urged jn mitigation of sentence that prisoner had hveu m custody for eleven weens, ills iiouour said if tms had been her ' urst offence there were circumstances that would havo made him take a lenie nt view of the matter. «er ago was given as 3o years, and it seemed to nmn that in 18^0 she was Old enough to understand those matters. She was convicted of forgery at Dunedin, receiving twelve months' probation- She was pronablv told tnat it was a chance given ncr, nnd that future misconduct would be more severely dealt with, but, netwithstanding that caution, she had committed on offence of a like nature. The ' fact that she had been ia gaol would , not , constitute an adequate punishment for an offence of that kind ( though there \ weru mitigating circumstances. She would be sentenced to six months' imprisonment. ■-j ' ALLEGED CARNAL KNOWLEDGE. Andrew John Shanks, '11 years. WAS cnargea ou three counts (1) Witn carnally knowing a girl oi 11 years 3 months ; (J.) with attempted carnally Knowing, nnd (3) with indecently assaulting a girl under the age of XO years. The following jury was empanelled :— P. G. Calvert (foreman), J. Milton, F. ai. Penrce, O. 1\ Burnett, Jno. Hayward, J no. Barraclough, H- Cockburu, Geo. King, J. A. Calvert, W. W. Robertson, J. McNeilage, and Thos. Dyke. ihe Crown oraerod two jurors to stand aside, and prisoners counsel exercised the right of challenge in live cases. _ . Accused was defended by Mr Bowler, and all witnesses other than the mcdii cal men were ordered out of court. ,Thq Crown Prosecutor IMr T. M. Mocdftnald) said the indictment was framed in three counts. accoruing to the law ori the subject- The accused was charged with carnal knowledge Of the girl- It was quite immaterial whether the girl was a consenting party or not ; the jury need not go into that, Ine girl was the daughter of a settler in the luturau v district, and the allegation was that on 31st July, while on ncr way ppme from school with a sister two years younger. she was met by accused, who was known to them. He took hold ot the elder, leu or dragged her to a secluded place bard by and tncro committe4 the offence. The girl then went home, and her mother, seeing her condition, questioned "her, with tne result that information was given to the police aud accused was arrested and charged with tho offence. _lhat would be tho story of the girt and her mother. Other evidence which _would ,b* Riven would be that Of the girTs sister, and of ft boy who saw a;man and arrirl together. Medical evidence, would also be given to show that something had happened, and if that evidence was consistent with tho story of the R*"*™* iurv would form thejr own opinion. The case rested mainly on the girl's evidence. It must necessarily do so ; and it would be the duty of the jury to judge her story by all the circumstances. Matilda Johnson said her age fl* under 11 years and above 10. fahe lived at Tuturau with her father and mottor Left school about 2 o'clock on a inday (she did not remember the date), with her sister Alice. Knew two girls immcu Oughton. They left that day hehind witness. Had known accused a long time. That afternoon ho came out- from behind a fence. Witness was then on tho Mairirua bridge. When accused came out he chased witness and her sister and caught up on them- He said " Co,ilie on and when witness did not go ho dragged her by the arms. The road was up a hill Witness's sister left when accused and witness got to tho top. She ran buck to meet the other* children. Witness was dragged down to Gait's bush where the offence was committed, witness giving full details. Had on ft hlue pinaforo with white flowers. When she got v home her sistor Alice had arrived there. Witness's mother asked hop questious, which she answered. Accused had acted similarly before three times. Never told anybody of these occurrences at tho time. Cross-examined : They all got out of school together that day. School -was usually dismissed at 3 o'clock, but it was out earlier that day because it was snowing. Was among tho first »o go homeward. Thore were no .others in front. Her home was about two miles from the residence of accused. Lived just opposite Muir's, and closo to bolster's. There are firo brothers and sisters at home- Was. in the first standard. Father did not live at home. He generally lived at Mataura, -nnd came hi me on Saturday nights. There were three rooms in the house. Sometimes other people stayed there. Mr vxeddea stryed toere sometimes. The -.>.rce jJI.'MS slept in tho back room- No t others slept there. Mother slept in the fro.-t room, Accused from the right hand »vdo of the road. There were a. good aumber of cnuurcn beMind, including the Onghtona ami -o ußourkcQ. Did not often go homo with the O'ttOUTkes. They were, all .oys. Johnny o itourko was not near ho*- that day. Had had no- talks with her mother since the preliminary trial. »ne never told witness what to say. Could not say where she learned tho ex. pression by which she described a certain organ. Told the court beiow that she had scratches on her legs from tbe fingers of accused. Her home was cK»so to a bush : did not run about there. Alice Johnson gave corroborative evidence as to meeting Shanks and tolng frightened and running ' back to the other children. Did not tell them was frightened of accused. Her mother nhVer told her what to say In court. Aston Wards, a lad 'who said Hs ago was 12 years, said he knew accused n long time. Left school "on July Slat rather earlier thftn usual, Saw a man and girl together. Did not mow either. Thought the girl was Mattto Jol hko"Tho man had not hold of her. p fttf Alice running and walking back to tho Others. Cross-eXamined J Was nhiut A jajl* awny. Could not 8»y whether tpf

man was tall or short. Got out oi school about half-post one. Was snowballing with the others. (The hour of the luncheon adjouinmant having arrived, Mx T. M. Macdonald said iie desired to mention tho \ alii case. The present case would probably last the greater port of the afternoon, nrd he would suggest, tho defence consenting, that the Vallt case should be taken in tne morning. Hie Honour coicvired, and waiting jurors and witnesses were discharged till next day.) Upon the court resuming Matilda Johnson, mother o| prosecutrix, sun! her uauerhter .was born on 14th April, 1£92. at Mataura. Knew accused now. but did not Jcnow him previously. Xi cv there was such a man. His family Jivt-J about two miles from witness's li.'»uki« Ke- ". membered 31st July. Her t«-o dnnt'hu-rs were at school about 14 or 2 miles a« n y that day. Alice came homo nb >ut three O'clock with some other girls. Matilda camo home about four- Saw her immediately. There was mud on the back of her pinafore, and on her hair. Quoslioned her, but she made no reply, was crying. Questioned hor again neM day, and in consequence of what she said word was sent to witness's husband, and information given to the police. Crossexamined : Had lived at Tuturau nearly 22 years. The Shanks' had boen living there also, and they were practically neighbours. Knew Charlie Shanks and spoke to him frequently. Could 1 Mot say if accused was working at Folster's, a neighbour.' Knew he was there once. Folster was. her nearest neighbour. J. Muir was also a near neighbour. Never spoke to accused to her knowledge. Her husband worked at Mataura, and had done so for 11 years. He came homo once a weeki Had five, or six children at home. Lived lh a three-roomed cottage. AIL who were, at home lived there. There was! a hut at the back of the house. A man named Oeddes used to stay .there for a time. Occasionally lie stayed iri the house. An old man named Green also stayed in the hut once. Oeddes was frequently about the house. He used to drink' a good deal. Had seen \ him drunk at her house. Her husband had sent Geddes drink once or twice. Witness did not drink with him— never touched liquor. Know that Geddes and accused had a row. They fought, and Geddes got the worst of it. Had not been in trouble with her neighbours ti at she kuew. Did not know that some of Folster's things were found at her house, i.ever heard of any rabbit traps going astray, nor of any parts of a roller. Had a sister in Gore. Her name is Smith. Witness examined the child herself. Did SO on the Saturday. Her daughter did not tell her enough on the Friday.. Was not annoyed at the quarrel between Geddes and accused. Reexamined.:. The cause of the quarrel between Geddes and. accused was that nccused used bad language to her daughters. Saw a few scratches on Matilda s legs on the* Saturday. ' Police. Constable Keaney, stationed at Mataura, gave evidence that *he arrested accused. on 3rd August, and charged him with -rape; He said,: *' It is a serious charged isn't it ? Johnson's got a down on "Bne;>" '"Witness then cautioned accused who said he was not there. The only other remark he made was to ask whether his expenses would he paid if got out of - it- Cross-examined : Had known the Shanks family for years. They wore ] most respectable and well-known in the district. Had made . inquiries about the district. A Statement was made by J. Muir, but he was not called in the N . court below; ' Joseph Ernest Rogers, a duly qualified medical practitioner, residing at Wyndham, said he examined prosecutrix on' 4th A'ueust. Found numerous scratches , on the inner side of her left thigh, and - on the right hand two small scratches, There was a small, abrasion on the right shoulder in front. Found the hymen intact, though bruised. Was of opinion tnat some .violence had been done to the girl, but ' Could not say its naturo, oi when inflicted; Appearances wore consistent with the : girl's, story. Cross-exam-ined i In most cases of rape on children serious Injuries were inflicted. A purulent- discharge witness saw might arise from . dentition or from dja'ty habits. The prosecutrix might be getting . her second canine teeth. The bruises were very slight and might have heen caused mechanically. Knew what writers on Medical Jurisprudence said about such marks being produced for purposes of extortion, would expech more evidence from ».four attempts. Brambles might nave caused tho scratches. Injuries such j ■ as he saw could be caused by a boy of J 11 or 12. Re-examined : There was nothing in the scratches inconsistent with the girl's evidence. Did not , examine her for dentition. The girl was not par- - ticularly dean: This was the case lor the. Crown. Mr Bowler said the jury must co»---sider the . man innocent until ho was proved guilty.- They must remember there was no one SO dangerous as a vicious child ,or a . spiteful woman. He woald bring facts: -to show that his client" was entirely inhocent of the shameful charge. His family was well-known. Her was the eldest of five children, and the -family had always nad a- good name. He would prove that on the day mentioned accused was confined to his father's house. He was suffering from a complaint Which induced diarrhoea. He had been in and out of bed all that morning. The family were all at home, and had dinner between 12 and 1 o clock. The school came OUt between 1 and 2. The place where the alleged offence was committed was .about two miles from the home of, accused, and across the Mairinia. which could only be crossed by a bridge. There was no evidence to show that: accused knew i tho school was closing early . that day. The prosecution seemed to imply that he must have known, which would mean that he must 'hay, lain in wait, and to do this he must have left homo an hour earner to eet to the spot. The fact was that accused was ■- confined to the' house all the forenoon: After dinner he had tot_gO out. - and was absent not more than noli an hour. It was impossible that he could go all that distance' and spend an hour and' come back when his mother said he did- When he came back to the house .he returned to bed, and remained there titl about 4 p.m. No one saw him jroinc either by the. road or across countryor coming hack. The only evidence acainsfc himwas that .of two little chil-dren:-There were two intervening pro-, perties— those of Clements and J. Muir. Clements was working at the front of his-Jbouse, and never saw. any adult with the * children;: Muir : was -at a point op-posite-the gap. whence the child^came. He would say that the hoy O'Rourke came first from "the gully and the girl about five minutes. afterwards. Irom this .the jury' would; draw their own inference,'No one saw; accused at all. He would present accused for examination. Andrew John Shanks said he remembered the day of the alleged offtnee. Was at hpme all\ that week. Was suffering from diarrhoea on that day, and was-inibed nearly all the, mormng.^Had dinner about 12.30. In the house there were himself, his father, mother, brother and Sister.. After, dinner sat down and had a smoke..r Then went down to^: tne bush in the opposite direction to Johnson's. By his mother's request brought back a log of wood. Took his boots off and went to bed again. Stayed there till half-past four.^Went out then for about 10 ininuteS; and then had tea. It was a very rpugh day,, there^bemg a fall of snow in the morning. Know Mattie Johnson by sight. Pid not see her that day at alh Witness- house was opposite the school, and about 12 chains distant, but it could not be seen for tries, bid not know the school would be out 'early'.'.' lf he had not followed the road he must have gone by Muir s . -*>lace. After passing tberev-ho must have cone by Clements'. Could- cross the Mwrtrua about 5 or G chains above the bridge. ; and. right in front of Clements house. Could hot cross at any^other r coint within a. mile either way. On the .'.vs^:ff^r.tfi»--i^!i-'M-.MuW not go except, in plain "view of everything. That would be across Gait's paddocks, and tsbuld not Across the river there. Had ceased speaking to- Mre Johnson because ahe did not keep respectab o com : pa«y. ' Knew ■ Geddes. - Had a '• .row , with him because .witness spoke to Johnson's children. Was working at bolster's when Geddes came up and challenged witnesß, who " thumped him. Cross-examined : First heard of the charge on the Monday morning, when ho was arrested. Had been unwell all the week. Was at home all the time, but not always in bed. Was. in bod a good i- part of Thursday and on Friday. Might have been in bed an hour or two m the Kings T th© other days. Was away on but was not sure where. Was at Se "all Was knocking About home; all. Wednesday- Was m bed Sart^f Thursday, and nearly all day on Friday. Was not on the, road on Friday, End was not at the bridge. Knew + tho Johnson girls by .sight. -It; was not true that he bad criminal relations with the fiirL First learned of the exact time of the alleged offence at the Magisterial 1 "'Shanks, mother of accused, corroborated his evidence about peing at home on Friday, and as to his being unwell all that week. Detailed each day's movements. Cross-examined . Could not say when it was arranged . that she. should give evidence. Receive*! . a subpoena.Corroborative evidence was given by ' Andrew Muir Shanks, father of accused '■■■■ and : Charles and Fanny Shanks, his brother and -. sister, their evidence being similar "to that of accused. . Ttt? court; then rose till next morning.