SUPREME COURT.

Timaru Herald, Volume LXII, Issue 2977, 14 June 1899, Page 3

SUPREME COURT.

♦ TlMAKU— Tuesday, June 13th, 1899. (Before His Honour Mr Justice Williams.) The criminal session opened at 10 a.m. THE GRAND JUBY. The following sat as the Grand Jury : Messrs W. B. McLaren (foreman), A Targuse, A. Budd, G. W. Ellis, M. J. Shepherd, W. Priest, W. Beckingham, A. J. McMaster, . W. Stevenson, G. D. Marsh, J. P. Newman, G. Tilby, J. 8. Keith, S. Bee, T. W. Batter thwaite, M. Gaffney, J. Boothroyd, F.Simmons, J. Ronaldson, G. Tennant, F. A. Raymond, L. Grant. *MrO. B. Eichbaum did not appear till sent for, when he explained that he understood that the Court opened at 11 o'clock. His Honour said he supposed there was somemistakp, and directed that Mr Eichbaum be sworn and sent to the Grand Jury room. His Honour made a very brief charge , to the Grand Jury, merely enumerating the cases, and remarking that they would have no difficulty m any of them. The Grand Jury found true bills m all cases, and were discharged at 11 a.m.

FORGING AND UITEUIXG A CUEQUii. W. Johnson p!end>-d guilty to charges of forging and utUiin» a cheque for £5 128 on the Bank of New. Zealand, Temuka, on the 16th March last, and of uttering the game (at the Arowhenua Hotel) knowing Mint it was not genuinp. Mr Farnie appeared for accused, ami offered some remarks m mitigation of sentence. The accused was not by auy meanß of good character ; but he lnrt done all m his power by pleading guilty, to save the time of the country. The accused wnsnot long out of gaol, a month or so, where lie lud served a sentence for burglary. Hr got employment at a threshing mill up north, but his employer being told that he had just come out of gaol, discharged him, and his reputatiou pursued him to Temuka. Mr Farnie made some further remarks reflecting on the conduct of the hotel where the cheque wns changed, and His Honour said the depositions disclosed nothing of the sort, and Mr White, Crown Prosecutor, denied that the accused was intoxicated. Finally Mr Farnie pointed out that accused had been m gaol three months already. Mr White stated that the accused (who is quite a young man) was m 1893 three times convicted m Temuka for larceny ; m 1895 was convicted at Geraldine and Timaru, of larceny ; and m 1896 was sentenced at the Supreme Court, Ohristchurcb, to three years for breaking and entering. His Honour 3aid the cheque was a small one, but the accused had an exceedingly bad record. Accused was sentenced to 15 months' imprisonment with hard labour. Mr White asked for an order for restitution of the money found upon accused, £3 10s, and this was granted. STEALING FBOM A DWELLING. Henry Stratford, charged with stealing £21 from the dwelling of Margaret i\lewhinney (Redcliff)on the 14th March, pleaded guilty. He asked His Honour to take into consideration that this was his first offence, and that he had been three months awaiting trial. The Crown Prosecutor stated that nothing was known against the man previously. He had been sentenced to a week for stealing a bottle of gin, at the same time that he stole the money. He stated that he was a new arrival m the colony, and nothing was known about him. The money had not been recoverd ; accused said he had spent it on a racecourse. Accused said he came to the colony m December last from London. Sentenced to six months with hard labour. BURGLARY AND ASSAULT. George Godfrey Shaw pleaded not guilty to charges of (1; breaking and entering the dwelling of Walter Scott, at Rona, Burkes Pass, on 13th May, with intent to commit a rape on Eliza Scott; (2) assaulting Eliza Scott with intent to commit rape ; (3) indecently assaulting Eliza Scott ; (4) assaulting Margaret McMillan. Mr Hay appeared to defend. The following set as the petty jury: — T. White, W. Freeme, W. Cooper, T. Anderson, J. Lane, J. Baker, G. Hay, H. Milligan, A. Gibson, G. J. Murdoch, W. Hellier, S. Cain. Mr Lane was chosen foreman. Mr White stated the broad facts of the case as they have been previously published — how that a man came to the house at about half-past nine on a dark night, and pretending to be the woman's husband, asked to be let m. No notice being taken of this, he burst open the door, and came m with a coat over his head, knocked out the lamp, and assaulted Mrs Scott. A struggle took place and Mrs Scott and her sister got the man outside. The man, whilst outside, threatened to kill them. He got into the house again and they retreated to the bedroom. The man got into the bedroom, but they got him out of that room, and then took an opportunity to get out of the window and escape to a neighbour's, the man being engaged m striking matches for some purpose while they got out of the window. Mr White proceeded to say that there could be no question of the occurrence. The question for the jury was whether the accused was the man. The Crown said he was the man, and the evidence m proof of it was of this nature : The accused was at Tekapo that day, and left there between five and six o'clock for Fairlie. Accused was drinking whiskey at Tekapo, and Mrs Scott smelt drink on the man who assaulted her. The coat that the man»had over his head, when he broke into the house, smelt of campfire smoke, and Mrs Scott recognised the same smell, bub fainter, on accused's coat next day. When accused was pushed out of the house, he pushed a knife through the slight opening of the door, and told them to feel how sharp it was. That knife had a curved blade, and accused, it would he shown, had such a knife a short time before, In the struggle at the door Mrs Scott felt a wrist-strap on her assailant's wrist, and accused wore a wrist-strap. Mrs Scott felt two buckles — there might have been more— accused's strap had three buckles. Wrist-straps were not exactly uncommon things, but they were not common. While accused was riding from Tekapo that evening he came off his horse several times, and on one occasion he lost his cap. The man who broke into the cottage had no bat or cap. When the accused was arrested next day, it was seen that he had the skin freshly broken on his hands. The skirt that Mrs Scott was wearing, and the man had hold of, had spots of blood upon it, and there were drops of blood on the doorstep. The man evidently tried to disguise his voice, but at times he forgot himself, and then his voice was clearly recognisd as that of accused, which Mrs Scott knew, having known accused .for some years on fairly friendly terms. These were the facts relating to identification. Of course it was competent for accused to give evidence and to call witnesses to show what his movements were that night. Mr White called as the first witness, Mrs Eliza Scott, the person who was asßulted. She gave evidence m detail of the occurrence, and testified that she recognised the voice of her assailant as that of George Shaw* She knew Shaw well years ago, when he lodged m her mother's hotel at Tekapo. The witness explained that it was not a very difficult matter to get the man out of the house because he wanted her to go out with him. Mr Hay cross-examined closely on certain points. Mrs Scott adhered to. her statement that she recognised accused's voice, not when he first spoke, but after he was got out, and was demanding that she should come outside with him. Margaret McMillan, 11 years of age, sister of last witness, who was with her at. the time, gave a similar description of the occurence. She also recognised the accused's voice. At one point m the struggle witness was striking matches to provide light, and the man put them out by his hands or his coat, and then he put her down and took the box of matches from her. In reply to Mr Hay she said that her sister did not at any time address the man as George Shaw. They had more trouble to get the man out the second time. (This witness gave her testimony very clearly, but broke into tears just as the last question was put to her.) In reply to the foreman, the witness said she did not know how accused managed to keep the coat on his head ; she did not know whether it was fastened or not. E. Smart showed that accused left Tekapo, on horseback, for his home at Fairlie between five and six o'clock that evening. Witness and another named Cain were also riding home m the same direction. Accused did not appear to be the worse for liquor when they started but the witness showed that he rode erratically, galloping on ahead and then allowing himself to be overtaken. Accused lost first a bottle of whisky, then his pipe, and then his cap, and several timea he got off the track by leaving them and going ahead. Finally he left

them at Sawdon Creek about five miles beyond 13 mice's Pass, and they saw no more of him. Witness and Cain reach ml Burkes Pass at ten minutes to nine, and left the Pass about nine. Witnesß had three miles to go, his house being half a mile past Rona on a by-road. On passing Rona- noticed a dim light m the iiouae, m the bedroom window he thought, and a horse on the road between the two gates. He had only been m his house a few minutes when Mrs Scott, with her baby and her sister came and said that George Shaw had frightened them out of their house. Both Mrs Scott and the girl mentioned George Shaw's name he believed. He went at once to their house. On the way he heard a horse cantering along the road towards Fairlie. When he got to the house there was no one there. Mr Hay cross-examined to show that accused's conduct between Tekapo and Sawdon proved him to have been very drunk. The witness Baid I c concluded before he left them, that Shaw was a " little tipsy/ Shaw knew that they were on the road behind them. On passing Kona he- saw what he took to be a horse on the road at the gates — it was very dark, and when he went to the house, he went to the road to see if there was a horse there. The object he had seen before was not there, but there were three cows m the road at the same place. The object he had seen before might have been a cow. The Court at 1.15 p.m. adjourned for an hour. James Miles, draper, Fairlie, saw accused, at the Tekapo Hotel, on the evening of the 13th. Shaw, who had previously been clean-shaved, rubbed his chin, as if referring to his having let his beard grow, and aaked, "Do you think anybody would know me ? " Told him he would know him by his voice anywhere. Robert Cowan, shepherd, Tekapo, was working with him m a camp about a month ago. Accused wore a wrist-strap with three buckles. He had a knife with turned'up point. W. Willoughly, constable stationed at Fairlie. Arrested accused at Burkes Pass on'the 14th. Mrs Scott was brought, identified him, and swore an information against him. Took a coat off accused's saddle, observed no particular smell about it. Accused said nothing about the case one. way or other, but said he had been drinking fast and furious. Examined the house, and found the catch of the door broken off, and the furniture thrown about and some of it 'broken. (Details given.) Saw some small drops of something like blood on the front doorstep, and a smudge on the door. Noticed a fresh abrasion of the shin on accused's hand when he arre3ted him. To Mr Hay : Believed iie said to Mrs Scott that he knew nothing about it, and asked her if she was quite sure. A juror asked to have Mrs Scott recalled ti» ask how long accused boarded at her father's house (Tekapo Hotel) while she was there.— The witness replied that it was through one summer season. That was five years ago. To the foreman : Did not see how or if the man's coat was fastened on his head. Tried to pull it oil', but he held it on. This concluded the case for the prosecution, i Mr Hay outlined the defence, which was, m the main, that the accused was too helplessly drunk to have committed the offences described by the witnesses for the Crown. His first witness was the accused, who stated that he wa3 working on the Bal-moral-Braemar Station m May last. He had been driving and grooming on the Fairlie-Pukaki road m summer, for nine or ten years. In the early years used to stay at McMillan's at Tekapo. Knew the little girl witness ; she was a very little girl then, two or three years old. Had seen very little of Mrs Scott since she left Tekapo ; often saw the little girl on the road. Occasionally gave Mrs Scott a mail or papers, might "pass the time of day " then ; otherwise had not spoken to her since he left Tekapo. Mrs Scott had been at Gore for some time. .Reached Tekapo on the 13th from Glenmore. Had walked about 12 miles to Glenmore and got a hack there. Accused detailed what he did at Tekapo, explaining that he had at least nine wbiskys, and how he rame to get them; and said he took a bottle with him. Waited for Cain, who was going home to FairUe. Smart came first, and said he had better come on with him. Was a married man living at Fairlie with his wife. Started with Smart. Half a mile on the way lost consciousness. Had a faint recollection of Cain shaking him up, and putting him on the mare again. Recollected nothing more until he found himself lying on the ground, beside the mare, a mile the other side of Fairlie. Had a dazed recollection of arriving at his father's place ; would not have recollected it, if it had not been drawn to hia mind. Next day was sore all over. Fairlie about six m the evening that day to return to Glenmore. Called at Cain's to go with him, but Cain said he was not going till the morning. At the Pass was arrested. Had no knowledge of what he was arrested for. Mrs Scott was present. Asked her if she was not making a mistake. Knew when he left Tekapo. but had no idea that Cain and Smart were going to stop at the Pass at all. Had no knowledge whether Mrs Scott's husband was at home or not ! had been m the back-blocks for five weeks. The mare he rode was usually kept at his father's place. Wore a wrist-strap, but it had only one buckle. He never saw one with more than onft buckle. Only wore it when at work. Did not know whether he wore it that day or not ; did not know where it was, whether m his camp or not. At the camp used the overcoat bs a blanket. The camp-fire was a chain or more from the tent. Had two sores on one hand, they were frost-bites; had been there all the winter. J To Mr White : Often saw the little girl on the road, not an average of twice j a week— since they came, to the Hotel, within the last twelve months. Did not know why he asked Mrs Scott if she had not made a mistake ; did it on the spur of the moment, he supposed. When Cowan said there were three buckles on his wrist-strap ; he was wrong. Was not used to sit over the camp fire m his over-coat. You say you don't know whether you were at Mrs Scott's house that night or not ? 1 have pleaded not guilty ; that means that I was not there. To Mr Hay: The wrist-strap was not on when I was arrested. James Cain, blacksmith, Fairlie, had been working at JBraemar, and on the 13th went home. Overtook accused and Smart about 2 miles from Tekapo. First met Shaw, who said he had lost a bottle of whisky and he was looking for it. Told him to come along nnd leave it, and he did so. The witness corroborated Smart as. to the drunken condition of accused. He had to pick him up and help him on his horse once; on another occasion he found accused off the road, and he then took his bridle and led the horse, bt^t that did not answer iqng, as accused kept urging his ' ; horse on, so he had to give him his bridle and let him go. Accusftd got off the road again, but was put right, and then he galloped awny from them. Stopped at the Pass a few minutes. Did not notice anything on passing Rona. . Reached Fairlie about a quarter tc eleven. No one passed him between the Pbbs and Fairlie. To his Honour: Rode with Smart fairly fast. To Mr White: Took deceased to be , drunk, but did not think he was so bad as to be incapable of taking care of himself, or would have taken him back to , Tekapo. , H. Kerr, of Kerr and Frayne, coach proprietors, for whom accused had bepn a driver, was called as to character. He said accused was all right so far as he ', knew, except that m the last month of last season he drank a good deal. To Mr White : On the night of the 13th - left his stable at Fairlie for his home \ about 11 p.m., and m the darkness saw

a horseman, whom he took to be accused, riding m the direction of the house of acjused'a mother. Could not swear that it was accused. Maria Shaw, wife of J. H. Shaw, and mother of accused, gave evidence that nccused came to her house at Fairlie, betweeu 10 and 10.30 on the night of the 13th. He was so drunk that he could not get off hi 3 horse without falling, and he fell twice as she took him into the kitchen. He had lost the use of his legs altogether, he could not talk intelligibily, and seemed quite dazed. The horse he had belouged to her 'younger son, and brought accused to the house. She gave him some tea, and after he had sat for about three quarters of an hour he got on the horse again, at the third attempt, and rode home. Emma Shaw, wife of the accused, remembered her husband's return on the 13th, at a quarter to eleven. He roused her out of bed, and she looked at the clock. He waa the worae far drink. This was the last witness; Mr Hay addressed the jury for over an hour. He criticised the evidence of identification m its various elements— the voice, the wrist-strap, the smell of the overcoat, the knife, and the absence of a cap. The voice, he pointed out, was said to be more frequently other than accused's than his, and the recent opportunities for the witnesses being familiar with accused's voice were too few to make their identification trustworthy, while his voice must have changed since they were familiar with it. The strap and the knife not produced, the smell of the coat were fanciful, the absence of a cap would apply to another who covered his head with a coat equally well. He asked the jury to remember the drunken state of accused at the two ends of his journey, and consider whether he was the man whom those assailed said was the worse for liquor, but not very drunk The evidence of the Crown went to show, from the time that Mrs Scott reached Smart's, that her assailant was m the house when Smart and Cain passed Rona. But the assailant could not have been Shaw, because ho got to Fairlie before Cain, and nobody passed Cain on the road. It was highly improbable that accused was the culprit, . because he knew that the two men were on the road behind him. Mr Hay haviDg dealt with the evidence spoke of the mitigating effect of drunkenness, as affecting intention, and then with the effect of the several counts. Mr White summed up the case for the Crown and replied to Mr Hay, speaking about three-quarters of an hour. He contended that the witnesses had had sufficient opportunities to become familiar with accused's voice, and pointed out that there was no doubt m the witnesses' minds about it. They named the accused m making their first complaint to Smart. He commented on the non-production of the accused's knife and wrist-strap, on the absence of a cap, and on the easily bled sores on the hand ; and as to accused's condition, he was not so helpless as it had been sought to make out. He argued that the timea given indicated that toe accused was m the house when Smart and Cain passed, Mrs Scott being then on her way to Smart's ; that it was untrue that accused reached Fairlie before Cain, and that it was m all probability the accused who was seen by Kerr riding into Fairlie about 11 p.m. The jury could not expect the accused or his mother or wife to give evidence against him. His Honour occupied 35 minutes m summing up. He dealt fully with the evidence respecting the voice, and accused's condition, and respecting the time of accused's arrival at Fairlie, on which point the evidence of his wife and mothpr must be duly discounted, and against it wag the imperfect observation of Kerr. Accused had been m front of Smart and Cain, and if he continued m front of Cain he could not be the offender. But if he arrived m Fairlie after Cain, then he might have been the offender. The jury must consider whether the evidence showed that accused was so drunk as to be physically incapable of behaving as the man m the house behaved. He explained the imports of the several counts, and that Mr Hay's argument as to the effect, of drunkenness did not apply to a cusa of this kind. The jury retired at 5 minutes to 6, and returned at 7.30 with a verdict of guilty on the third and fourth counts— guilty of indecent assault on Mrs Scott, and of assault on Margaret McMillan. Mr Hay, on behalf of the accused, urged that if he had. not given way to drink he would not be m the dock, and that he had previously been of good character. The Crown Prosecutor said there was nothing against accused, and his having been many years m one situation was evidence of good character. Hiß Honour said he had no doubt that drink was at the bottom of it. He would take that into consideration, and also accused's previous good character. At the same time, to break into the house of a solitary woman at night and to assault her, was a serious offence, even though she suffered no more than a severe fright, as m the present case. The sentence of the Court would be two j ears' imprisonment with hard labour. When the jury retired m this case the following was taken— FORGERY. Hy. Welsh, a youth of 16, charged with signing a Post Office order for 19a 6d intended for another person and getting the money for it, the charge being laid m five different ways, pleaded guilty. Mr Raymond appeared for the accused and suggested that it was a case for probation, and the Probation Officer submitted a favourable report. Hia Honour ordered the prisoner to be discharged on probation for six months on the 19s 6d being repaid to the person defrauded* and as he was informed . that accused supports his parents by his wages he would make no order about costs. Mr Raymond undertook that the 19a 6d should be paid immediately. The criminal session closed and the jurors were discharged at 7.35 p.m. Per Preas Association. INVERCARGILL, June 13. The Supreme Court sittings opened today. Mr Justice Denniston said the calendar was somewhat heavy, but the majority of the cases were of a very ordinary and not serious character. James Edward Fox pleaded guilty on two indictments, charging him with stealing various sums, the property of the Bluff Harbour Board, of which he was secretary and treasurer. He was sentenced to two yearß on each charge, to run concurrently. Honor Victoria Fox and Elizabeth Mary Ball pleaded guilty to house-breaking, and were ordered to come up for sentence when called upon. James Fergusson, for horse-stealing, got probation for twelve months, Walter Rusßell, house-breaking, four months' imprisonment. William Lee, forgery and uttering, six, months. All pleaded guilty. Robert Simpson, for attempted suicide, was ordered to come up for sentence when called upon. Oswald Sewell, for stealing a cash-box from a shop, got four months, and James Brogan, for a series of thefts, threts months. The Grand Jury found no bill against G. D. Newman, charged with indecent assault on a girl. A charge of rape of a girl under the agn of consent against James Stewart was not concluded when the Court rose.