NEW TRIAL FOR J.E. SMITH

Taranaki Daily News, 22 November 1929, Page 11

NEW TRIAL FOR J.E. SMITH

JURY REACH DISAGREEMENT STRATFORD BURGLARY CHARGES. NO DECISION AFTER 4i HOURS. The jury having announced that it could not agree after a retirement of 4i hours, a re-trial of James Earl Smith on two charges of burglary at Stratford was ordered by Mr. Justice McGregor in New Plymouth yesterday. The indictments against Smith were: — (1) Breaking and entering the premises of D. J. Malone on October 10, 1928, and stealing four dozen bottles of ale and stout valued at £2 16s; and with receiving ale and stout knowing it to have been stolen. (2) Breaking and entering the premises of W. McDonald, on the same night, and stealing cigarettes to the value of £1 16s 9d and money amounting to 3s 6d; and with receiving cigarettes knowing them to have been stolen. The jury retired at noon and returned at 4.15 p.m. Lengthy evidence was heard on Wednesday and the case was completed yesterday with addresses by counsel and a summing up by the Judge The Crown Prosecutor (Mr. C. H. Weston) pointed out to the jury, that the case was most unusual. He did not remember so much direct evidence in such.a ca.se. Usually most of the evidence in such eases was circumstantial, ■but here there was the evidence of four persons who wei;e concerned in the alleged offence. In the first place Smith’s ■own statement admitted that he was at Stratford on October JO and it connect-, ed him with the . six empty, bottles,: .which were ; part of the stolen goods. He had, as it were, tied himself to them, so in this respect the jury was assisted by accused himself. Smith had admitted in his statement that he had <rone to Stratford with Elliott and had remained with the boys during the evening. According to him, there was no period when he was not with them from the time he joined them. Counsel suggested that it was very unlikely that the other boys ..would confess to crimes they had not committed. The question the jury .had to decide was whether Smith was with them when the crimes • were committed. . It was quite clear that the beer Smith spoke of was really stolen. COUNSEL’S ADDRESS. Mr. A. A; Bennett counsel for Smith, said the question the jury should ask themselves was: “Is Smith proved guilty by evidence on which you can rely?” He would say that the evidence was not reliable. The evidence of Elliott, of his accomplices, and of Mrs. Oakley was obviously contradictory. • I He contended that Smith’s statement to the detective was an emphatic denial of the offence. In .favour of Smith was his frank admission that he was with the boys in Stratford and stayed the night at Oakley’s. If he had denied that, then they might have been justified in doubting his story. He had said he did not know of the breaking into Malone’s and the other places until told later, and his statement could not be construed otherwise. Mrs. Oakley’s evidence entirely corroborated Smith’s statement. Then there was the evidence of Elliott, the man -who confessed. to 35 crimes, who associated, according to his story, with eight others in crime, and who drove about in motor-cars, some belonging to other people, and carried house-breaking tools. Counsel suggested that this evidence and that of the admitted accomplices justified the most careful scrutiny before being accepted. They were self-confessed criminals who might be tempted to swear against an innocent person, either to protect a guilty party or to mitigate their own punishment. After detailing the charges and alternative charges, against Smith, His Honour told the jury that the question they had to decide was whether Smith participated in the crimes. If they believed the evidence on the subject for the prosecution then they were justified in returning a verdict of guilty. The question was ■whether they believed it. JUDGE’S SUMMING UP. His Honour suggested that it would be advisable for the jury first to fix what had been admittedly proved. They knew that on October 10, 1928, probably between 10 and 11 p.m., both the Stratford stores concerned in the charges were broke into, that these offences were committed by a gang of young men who travelled in a motor-car belonging that besides Elliott 1 the gang included Sullivan, Ludings and Oakley, that they obtained beer and stout and drank it at Oakley’s place. Those facts could not be disputed. Then there was the important fact that Smith himself admitted having started out with these men in the afternoon, having spent the night with them at Oakley’s, and having returned with them to New Plymouth next morning. They knew, too, that Smith and Elliott were mates who were together that day and night 1 . Each of the other men had sworn that Smith was with them. It was, however, his duty to warn them about the danger of accepting the evidence of accomplices uncorroborated, as Mr. Bennett had done quite fairly and ably. It was unsafe to convict on the uncorroborated evidence of accomplices. Counsel had suggested that eelf-con-fessed criminals might perjure themselves to bring in an innocent party in the hope that they might reduce the severity of their own punishment. • His Honour could not see, however, why Elliott and the others should commit perjury, thus adding to their offences, for which they were liable to terms of imprisonment. Though it was unsafe to convict on the uncorroborated evidence of accomplices, in this case there seemed to be some corroboration. His Honour did not think Mrs. Oakley was an accomplice, and he certainly did not think the detective was. The Judge then proceeded to deal with the evidence in detail.