SUPREME COURT.

Timaru Herald, Volume XIIC, Issue 13920, 3 June 1909, Page 6

SUPREME COURT.

TIMATIU—JUNE 2, VM'X (Before His Honour Mr Justice Denniston.) The criminal sessions of the Supreme Court were continued yesterday mornla "at H> o'clock, before His Honour Mr Justice Denniston. SUTHERLAND* A=*AUT CASK The case against Chishotm Bios, lor alle-'ed assault was resumed. All tne evidence had been taken the previous day, and counsel now address.-d the ,U Mr Knistie, for the defence went minutely into the details. of the case., and claimed that the weight ot evidence was in favour of the defendants, who said that they had not committed anv assault, and their evince had not been shaken in any material decree Counsel asked the liny to believe that the story of the complainant was an utterly in.prooa-.le one, and he asked: was it liketv that three strong men like * the accused would set on to an old man like Gormley and brutali> him in the manner described. -He submitted not; such a suggestion was repugnant, and not at all in accordance with probabilities. Ihe a,- ' cused had no motive for such a crime, and thev had never been guilty ot it. Counsel" dealt with the injuries received by Gorniley in detail, to show that the most serious of them nt all events could not have been caused in the manner described. They were told for instance, that one of the Chishoims tried to pull Gormley from his horse on the right hand side, thereby causing a. rupture in the left groin, but it a rupture were caused to a man ;n this wav it would he in the right groin, on ~ which the greatest strain would r-nio. If Gormlev had been knocked about as he said, why had he not ridden away instead of waiting to he puimii--d. mil whv had he ridden home on horseonek from the Point when he migiit Uve driven in a trap with his wile:- -he ; medical men agreed that a hernia would cause great pain, but this action -on the part of Gormley did- not make it appear that he had suffered is ho ■said. Moreover, they had it that Gorniley had been about on the following day, riding round his farm. : c.d did not bother about going to or sending for-a doctor that day. Was tl at the action of a man with a hernia zml a. fractured rib? No doubt Dr. Dryden found the inquiries he had described on Gormley but the injuries were not sustained in the way described by "Gormlev, or on the day stated by him. The witness Matthews saw all tl at happened. He said that the Chwiiolms did not touch Gormley, and they had no reason to doubt his word. Mr Emslie emphasised the fact that lhe three accused had heen given -r-n /excellent character by two reputable witnesses; said that the accused had r.o motive for assaulting Gormley (both parties having admitted that no i rovocation had geen given), and th?t the ■whole case for the prosecution had no foundation in fact. Mr Kmslie spoke for a little over an "hour.

Mr YYhite replied. He contended that the ease for the prosecution 1 :ul been abundantly proved. He emphasised the fact that Gorr.iiey v-as a very peaceably disposed man. not one who was at all likely to pick .1 i;ii:-.rrel. and that it had been given in i v that one of the Chisholms had wan:ed. fonr or five months to this assault, to punch Gormley. The ( hisholms had been given a good character. bnt everyone had that until they w enfound doing something improper- -Mr White said it was a peculiar coincidence that when Matthews and the cattle not back from the Point the first time, the three accused were waiting at liormley's gate. They said they were there looking for a mare which had strayed. But it was worthy of note that they did not get the mare, and did not look for her after the incident with the cattle. The Fact was that the Chisholms had seen Matthews trying to regain possession of the cattle, and had gone to help him. and in doing so inflicted a brutal assault on Gormley. Matthews appeared to have been the leading spirit in the matter, he having given the Chisholms the signal as to when to come on. "Would the jury believe, as counsel for the defence asked them to believe, that Gormley received his iniuries in bo me other way and then had the incredible wickedness to falsely charge the accused with it. thereby committing wilful and corrupt perjury:- The jury would never give credence to such a suggestion and in the absence of other means of accounting for the injuries the jury must believe that they had been inflicted in the manner stated by Gormley. No attempt had been made by the*defence to account for the injuries in any way. Gormley had no motive in bringing the charge, other than to redress the wrong done him: he had nothing to gain in a monetary way from it. no matter which way the" verdict went. Mr White contended that the witness Matthews was not one to whose evidence much weiidit should be attached, as it was evident that he was a partisan seeking to help the accused. The evidence for the prosecution had been strong: the defence had been unable to shake it. and the jury could come to no other conclusion "than that the accused were sniiltv. His Honour snid thnt no question pf law was involved in the case:

though it was an extraordinary case, in that there was, on the one hand, a charge of brutal assault, and a denial on the other hand that any assault had taken place. It was obvious therefor*; that one side was lying consummately. There were two accounts -and one of these must have been wilfully concocted. The onus was on the Crown, of proving its case conclusively, and it would lie for tin; jury to decide as to which set of witnesses they believed. In deciding tills they should consider motives. If Gorniley had invented his story lie must have done it to send the accused to gaol in order to punish them for having spread out on the road and assisted Matthews to ini- ! pound the cattle, that being all the j | provocation that the accused said they had given him. In order to do this Gorniley would require to have gone in cold blood to his lawyer and concocted a story to be supported in Court afterwards by deliberate perjury. This he would have to do at the risk (if his ' story were untrue) of being himself sent to gaol for perjury.. The jury must decide which set of witnesses they believed and having don*- that they need not bother about the details, as it I they concluded that one side was ]yI ing in the main, they could take it that that side was lying all throuirh. The suggestion by counsel for the defence that Gormley "s injuries could not have been received in the manner de- v scribed need not- be paid much attention to, as it was impossible to say to a nicety in a scuffle, j list how things happened. Mis-Honour reviewed the evidence of all the witnesses for the benefit of the jury. Itcfi-rring to the medical evidence Mis Honour pointed out that- i)r Drydeii was certain that the in juries (except the rupture) iiad been inflicted on Gormley within 48 hours of the time he had seen him. The doctor said that the rupture might also have been inflicted within -4-3 hours, but he could not say that positively, though he did say that it had been quite recently caused. It was on a Wednesday that l)r Dryden examined Gormley. who alleged that he sustained the injuries on the previous Monday, and the defence hail not put forward any theory as to why Gormley should say that the accused had injured him if they had not done so. i Could it be supposed that Gornilcy woidd injure hiniM'lf in order i.) trump up a case against the accused:' Thenwas nothing in tile suggestion that the complainant could not have sustained a rupture on the Monday because he did not go to a doctor about it thatday. It was common knowledge tiiat men often went about suffering pain for days without consulting a doctor, not knowing what was the matter with them. Iu conclusion His Honour said that in order to convict the jury must lie satisfied that- the evidence for the defence was untrue, and the benefit of any reasonable doubt must bo given to the accused. The jury then retired, and after considering the matter for an hour, returned with a verdict of guilty. The foreman (Mr J. Hole) said that they considered the accused had had some provocation and on this account they strongly recommended thenfMo mercy.

His Honour: •" You have conic to the conclusion that the .story for' the prosecution is true?'' The Foreman : ■• Yes." His Honour said that he agreed with the finding of the jury. The accused were then asked their ages, and the answers were — Janus Chisiioliii iT. Aeneas 'JO. Donald 30. Asked it they had any reason to advance why sentence should not be passed on them, ail three declared that they were innocent. Jlis Honour said that that matter had been decided by the jury, whose verdict carried with it an implication that in addition to the assauit the accused had also been guilty of perjury. Tne assault had been totally unprovoked and the complainant would probably suffer from one of the results of it the rupturi for the re.-t ol his life. His Honour said that he was always anxious to give elfect to the recommendations of juries, but he could not avoid passing a substantial sentence in this case. it was not a case for probation : he never gave probation in cases in which accused persons backed up their defence by falsehood. He was sorry to send young men to gaol, but lu- was bound to do so in this case. The two elder brothers, Donald and .lames, would be sentenced to (> months' imprisonment, and the younger one, Aeneas, would be sentenced to 3 months. ALLKCKD HAI'K.

Is;,a<- rJaigcni. a young man. managing clerk to an Ashliuriui) auctioneer, was charged with having on May 'Jo. commit.ted a rap;- upon a married woman named I'ennal. at Willowby, in the Ashburton district. Accused pleaded not guilty, and was upended by Mr Donnelly, of Christchurch. The case was heard before the following jurv:—I!. C. Tennem (foreman) H. Lawlor. R. Uvnes, T. W. Mee,— Stolt. W. I). Mil'lt-r. I'. Cairns. 11. Katon. C. Jonas. F. Anderson, A. IJi-iiun and \V. Coe.

The Crown solicitor. Mr White. si:ited the ease for I lie prosecution. The victim and her husband lived in a -1roomed house at Willowhy. and on the day in oue.-iioii the accil-ed ami a man named Cox went there on business. Thev all had lea together, and after tea when Cox and .Mrs IVnual's husband were outside and the woman was pu'.tin- her children to bed. the accused i'.ent into the room where she was. and eomniiUtd the rape.

Evidence in support; of lliis was given liy Mrs lVnnal. To Mr Donnelly: Accused was managing clerk to Mr Stevenson, auctioneer of Ashburton. Some time ago witness and Iter husband gave .1 hill of sali- over their property on account of a sum of i'l'til) lent by Mr Stephenson. Default was made in payment of this amount on the due date, and on the day of the alleged assault, the accused and a man named Cox. storeman to Mr Stephenson, went to witness's place to lake an inventory of the things oil the place, these {foods being then advertised for sale. A sale took place on the following Thursday (witness persisted in saying that it was a '■ give-away" and not a sale). A number of the horses and the cows included in the bill of sale were not there on the day of the sale, but- the bones of them were. They had died. A bull which was missing bad been killed bv her husband to provide meat for food. A dray which was missing had been lent to 'a Mr Davidson. The assault complained of by witness took Til ace about 6 o'clock in the evening. The accused and his companion, Cox, were the worse for liquor that night, though the accused discussed for half an hour or more, the sale of her husband's farm, with him. Accused proposed to sell for £'2o rier acre, hut her husband wanted £'3o. MY Donnelly further cross-examined on details of the alleged assault. Cox and witness's husband took the accused out of the bedroom where the a?s>nlt took place. The foreman ashed how far awav was the husband when the rape took place. The witness could not say.

The next witness was an 8-year-old cr.ll of Mrs IVnnall. He said that on the day of the assault he saw the accused in the same room as his mother. He was then on the floor and witness's father and the man Cox took the accused out of the room. T. H. Pennal. another son .of the complainant, also gave evidence. Thomas Pennal, husband of the complainant, said that at the time of the assault he heard his wile screaming inside the house. He went in immediatelv. and found the accused in the bedroom, Cox having his hand on his shoulder. Mrs Pennal accused hrm of the offence, and he made no reply. Witness .said he would send for the police, and accused replied that he would wait until the police came. Cox and the accused went away shortly after this, and witness laid an information the next morning.

To Mr Donnelly: The accused "was discussing that night the question of the sale of his farm, and lie was well enough able to discuss it. He wanted the sale- to be effected through his employer. "Witness admitted that there were no marks of violence on his wife as a result of the assault. On the morning following the assault witness wrote to Mr Stephenson, asking him to postpone the sale, as his wife had been knocked about, and might be confined to bed. The sale did take place, however. AYitness denied having said to Mr Stephenson that if he went <-n with the sale, " We will •fix' you in the Ashburton Court to-mor-row.'' , This closed the evidence for the prosecution. Mr Donnelly outlined the case for the defence, and called

Isaac Baigent, the accused, who said he was managing clerk for Mr Stephenson, auctioneer, of 'Ashburton, in whose employ he had been for ten years. The l'ennal.s had made default jn payment of money owing by them to Mr Stephenson, and witness and Cox, the sloreinan, went out on the {lay of the alleged assault to collect the goods in the bill of sale. Mrs Pcnnal tried to persuade them {luring the {(ay to drink some beer and whisky which she had, but they refused. They however, had some tea. In the evening, when witness and Cox wen; about to go homo, Mrs Pcnnal asked them to remain until a neighbour named Stoddart came. Witness said he could not wait, but Mrs Pennal caught him by'the .shoulder and pulled him over in the room. In the fall they both went down together, and Cox assisted witness to get up. Mrs Pennal hit at witness, but she did not accuse witness of having committed rape. She said she would send for the police, and witness asked what for, at the same time offering to remain until the police came. Witness was never in the bedroom at any time, and nowhere had lie indecently assaulted Mrs Pcnnal. The falling down episode had taken place just as they were all reentering the house after having been outside. Cox was just behind witness at the time. To Mr White: Witness had some whisky in the house at the invitation of .Mrs IVunal. Jle had three \Jiiskies during the {lay. He denied having done anything to Mrs Pun mil to cause her to pull him over. 11. Cox, storcman for Mr Stephenson, gave evidence supporting that g;ven by the accused. Y\ hen making the inventory, Mrs I'ennal offered them beer a'nd wliisky. Witness refused to take any, but he saw Mrs Pennal drink two glasses of beer. In the evening Mrs I'enual made some tea for them, hut witness did not take any. After Mr and Mrs Pennal, the accused, ami witness weitt out of the house together, witness and the accused intending to go home. The Pennals, however, persuaded them to go back to the house to have a drink with a Mr Stoddart, a neighbour. Mrs Pennal and accused walked into the house first, witness following. Accused declined to wait until the Mr Stoddart referred to arrived, and Mrs Pennal, who w anted him to do so, had a scuffle with him, fell over, and screamed. Mrs Pennal seemed, very "fussy'' all the evening, and witness thought it wise for them to get- away as soon as they could. There was no assault of any kind, and there was no opportunity at any time for a rape to have been committed.

To Mr White: Pennal was drunk at ■~>.'.V.) that day, and his wife had had some drink. 11. Stephenson, auctioneer, at Ashburton, said that accused was his managing clerk. On the day of the sale at Pennals farm, Mr Pennal said to witness: '■ You can go 'm with the sale to-day, but we will ' Jix ' you in the Court at Ashburton to-morrow.' This dosed the evidence. Addressing the jury Mr Donnelly impressed upon them the seriousness of the charge, which he said ranked next to murder. It was, therefore, important, that consideration should be given to every point in the case, and the jury must be satisfied beyond any possible doubt before they could arrive at a verdict which would for ever doom the accused. A charge of rape was easy to prefer and very hard to answer, even by an innocent man, and if the accused in this case were convicted on the evidence adduced, no man, be lie lawyer, doctor, auctioneer, or a follower of any other calling: would be safe in allowing himself to lie alone with a woman for five minutes. According to the woman, herself in this case, her husband was only out of the house for a minute or ' two yet she said that the .n-cused briirallv assaulted her in 'ha! l ;•.!-.. kno'wiiv full well that he would be promptly arrested. Was such a thing probable and would any man, execot one bereft of reason, do such a thing when there was no es-

-auc from arrest!' A very significant fact was that there was no medical evidence to show that this woman had been assaulted, and it was admitted that die had not a mark up-

on her. Was it within the realm of probability or even of possibility that a woman could be brutally assaulted as this woman .said she was and yet not bear a mark of rough treatment upon her:- The whole story of the prosecution was so improbable that no jury would be safe in. acting upon it. Mr .White replied. The main question was as to whether the jury believed tlui evidence! of the complainant, her husband and her two children or whether they believed that of the accused and Cox. He submitted that there was nothing in the alleged threat by Pennal to "fix" Mr Stephenson's firm. _TCven supposing that the Pennals had some ill-will towards Mr Stephenson, that would not extend to his employees. No motive- for ill-will against the accused had been shown or suggested, and was it not the last thing in the world under such circumstances, that a woman would do, to bring a charge of this kind against a man, if it had no foundation in fact. For her own sake and for the sake of her children she would not willingly he associated with such a charge. His Honour summed up, and among other things lie emphasised the improbability of a married woman being asisaulted as this woman said she was, without bearing a single m:"k upon her, and the 'further improbability of the offence being committed when her husband and another man were quite close to the house and were expected back to the house at any moment. The Pennals seemed to have taken the selling no of their place rather hardly and though he did not say that tliis had anything to do with bringing the charge now before the Court, it was open for the consideration of the jury as to whether it might in some way be connected with it.

The jury retired for 10 minutes, and returned with a verdict of not guiltv and accused was discharged. The Court rose at 6.10 p.m., and will not resume until 10 o'clock tomorrow morning, to-day, Prince ol Wales' birthday, being a. statutory Court holiday.

Per Press Association. AUCKLAND, June 2. At the Supreme Court, Judge Sim sentenced Andrew Brown to ten years' hard labour for criminal offence upon liis own daughter. Frank Malier was sentenced to three years' hard labour For breaking and entering, and thelt. WELLINGTON, June 2. In the Supreme Court, the special iury in the action Pose Galvin v. JIV K.'Burgess, a dentist, claiming £'."ifll damages for bodily harm caused by alleged unskilfulness in extracting n tooth, returned a verdict in favour of defendant, who did not ask for costs. INYERCARGILL, June 2. The Supreme Court was occupied till 4.30 p.m. to-day hearing evidence for petitioner in the divorce suit "Watt v. "Watt and Scobie (corespondents At that stage the hearing was adjourned to Friday. Tn Thomson v. Thomson, wife's petition on the ground of desertion, a decree nisi was granted. Evidence was al<=o taken in Gorton v. Gorton, husband's petition, and the case adjourned.