SUPREME COURT.

Timaru Herald, Volume XCVI, Issue 14913, 4 December 1912, Page 5

SUPREME COURT.

CRIMINAL SESSIONS. \ TIMAIIU, TUESDAY, DEC, 3, 1912. (Before His Honour, Mr Justice Denniston.) Tho criminal sessions of the Supreme Court opened in Tiniaru yesterday morning, lu'l'oi'e His Honour, Mr Justice Denniston. Tlll<: GRAND JURY. The following were sworn ma s the Grand Jury : T. W. Saiterthwaite (foreman'), T. Black, J. R. i'ruco, D. M. Cowan, AY. Furrier. A. Fras-r, J. Galfanov, 1). Grant, 11. \Y. I Lull, J. Imrie, J.* E. S. -lackson, H. H. Kingham, G. E. Knowles, 1). Mahonev, N. Ma reliant, J. McKennah, R. ],. Orbell, C. A. Schmidt, J. Shaw, V. Shrimpton, 11. AY. Simpson, A. Taylor, G. E. Triggs, and i). Watson. HIS HONOUR'S CHARGE.

In charging the Grand Jury His Honour said that the calendar was a small and exceedingly .simple one. Nunc of tho cases presented the slightest difficulty. There was a charge against one Baxter, hotel proprietor, at "Fairlie, for wounding with intent to do bodily harm to ono James Bradiov.

There was no dispute but that Bradley was wounded, and that Baxter did do , him bodily harm. There was a prima facie ciis;o for the jury. In extenuation of the oH'cncc it would be said that the. accused fotihd liis wiio ia the bedroom of a' hoarder at the hotel.'The law admitted this as strong pro vocation, and it went Die length of saying tliaj; if a man found his wife in the very act of adultery lie would be justified iii'ddllnig. That, however, was not the case in this charge; it was inerciv a case of Mispicjoii—nothing but the bare fact of the man and woman being together m the, same room. That would not be a complete, answer to tho charge, and there was a case to go to a petty'jury. Another charge was one of false pretences against one MeLeod, in connection with the sale of fire extinguishers winch Mere found on trial, to be valueess Tim law allowed a, good deal of latitude- m connection with the sale of valueless goods, a s for instance in quack medicine- and pills designed to euro all ills. It was open however in tmevo cases for tho impostors to put forth various excuses for the non-effi-ciency of their pills and ether medicines. In this case, however, the value "t.tnt; article was easily determined by trial. Ho had offered, for rale, an ex*imfrui»hcfr -hid »|j 1,0 efficient, but which had been found to bo useless. Perhaps the accused could give some explanation, but ns the case stood it amounted to a false pretence. There were two other eases, one of perjury arid one of rape, and in each of these the Grand Jury would have no difficulty in finding that there was a prima facio case. THE FATRLfTC CASE 1 . The Grand Jury then retired, and returned in a few minutes with a true hill against J. L. Baxter, for wounding James Bradley rit Fairlie, on August 7, with intent to do him bodily harm,. Accused pleaded not guilty, and was defended by Mr S. G. Raymond. . The case was heard' before the following nn-v:—E. J. T.rCVen Cforem.tu). V" i'olluiß"ii. A. Halsion. G .■ E. Thoiiinsei). T. Tf. Mac Vie, J Sutton, F. Blamires, C. G. King, S. T.

Cornish, "W. Pal .nor and S. Collet. The Crown Prosecutor, in opening the case for the prosecution, said that on the evening of August 7 Mrs Baxter had gone to the room of a boarder (James Bradley) in the Gladstone hotel, and her husband coming along, Bradley put the light out, thinking that Airs Baxter would not like to be seen there by her husband. The accused knocked at the door of the room but received no reply, and he then forced the bedroom door open. Accused stabbed Bradley in the leg in four places, and in one linger. Ho also kicked him in tho eyes and mouth. Mrs Baxter told her husband thai he was a fool and that there was nothing iu it. Bradley finally made good his escape and went to the Fairlie hospital.

It would probably be said that accused had justification for what lie had done, but if the force use* by him was out of proportion to the provocation given, ho was committing a punishable act. If a. man found his wife in the act of adultery and he killed her, ho would be guilty of manslaughter, but if ho killed her on mere Mi-:pic;on then ho would be guilty of murder. If tho provocation were so strong that an accused person could be considered as not, being master of his own understanding when he killed another, under these circumstances the charge would be reduced from murder to manslaughter. In this case, however, whether tho accused was provoked or not, he had no right to" act as he did in committing such a very serious assault on mere suspicion. It might have been a strong suspicion in finding his wife in a room with a man, with tho light out, and the door locker], hut there was nothing definite enough to justify him in acting as he had. y Mr AYhito then called evidence.

Alex. Mcpherson, waggoner, Fairlie, said he was stopping at the Gladstone Hotel, Fairlie, on tho night of tho assault, attd he gave evidence in support of tho opening statement by the Crown Prosecutor. He added that when the, accused asked liis wife what she was doing in Bradley's room, she 'said she had gone to that part of the house to inspect the rooms, and had not expected to find anyono in the rooms so early in the evening. James Bradley,.carpenter, of Fairlie, said that on the night of the assault he went to his room about 8 o'clock to dress for an entertainment he was going to. Mrs Baxter went to his room and started "barracking" him about not being game to take a certain girl to tho entertain meat. Shortly after Mrs Baxter entered his room, Mr Baxter came along, and witness said to her: "You had better go; here's Jim." Instead of going Vme shut the door on the inside, and turned the key in it. Baxter' tried the door twice, and then forced it open. Ho got witness by the throat, forced him on to a box behind the door, and tried to choke him. Witness broke his grip by turning back his little fingers, but Baxter drew something on him which ho took to he a knife. Ho jabbed witness four times in the leg. and once between the first and second fingers of the left hand. Witness flipped off the box, and got under tho bed in tending to try to get out of the room from the other side of the bed. Baxter then kicked him in th o left eye, tearing the lid. open, and when witness put his head out again to explain to him. he kicked him in the other eye. Witness tried to explain to him, hut ho stood alongside the bed with a drawn knife in his hand, and osirt of the time with a razor al?o. Mrs Baxter was in the room all the

time, and she told her husband that ho was mad; that there was' nothing in it. Accused told her to shut up, or ho would kill her. A man named O'Connor came into the room and held the accused while witness made his escape, and went to the hospital. To Mr. Raymond: Before bursting llio door in accused called out: "Is any one in there?" Witness did not reply. When accused started to force the door in witness leaned against it on the inside so'that they were in conflict before accused entered the room. In his statement to the police a few days after tho occurrence he had not said anything about Baxter having a drawn razor in the room; nor had he mentioned it in his evidence in the lower Court. Witness was a married man with a wife and child in England. He did not maintain either his wife or child. He did not pass as a married man at Fairiie.

A. B. Gilchrist, butcher, at Fairlio, gave evidence as to what he had seen of the assault. He heard Bradley calling out "help" from under tho bed, and witness went to look for help.

Daniel O'Connor, labourer at Fairiie, also £-avo evidence, lie having slept in tho hotel on the night of the assault. To Mr Raymond: Witness saw accused in the room with Bradley. Accused had neither a knife nor a razor in his hand. There was a looking glass with jug"arid bottle on the stand, and the glass was broken. Accused never carried a knife, being a non-smoker. Ilrs Austin gave evidence as to Bradley's condition when ho _ was admitted to the hospital at Fairiie, of which she had charge. Dr Traill, of Fairiie, gave evidence as to Bradley's condition when he was admitted to the hospital. ' * To Mr Eaymond: None of Bradley's wounds wore very serious, and at no time was his life in danger. Constable Hylandt of Fairiie, also gave evidence. He had asked accused for an account of the assault on the morning following it. Accused replied that Bradley would have to speak first. This concluded tho case for the prosecution. Mr Raymond said he would call no evidence.

Mr "White did not address the jury. Mr Raymond addressed tho jury at some length, disposing seriatim of the three counts in the charge, namely intent to do bodily harm, the actual doing of bodily harm, and assault. Touching the question of intent he stressed the point that there was a displacement of any wicked intent unless they thought that accused went to Bradley in cold blood for the purpose of inflicting injuries on him. They had to remember that in finding his wife- locked in a room -with another man, and the light out, the accused might, in a transport or passion, inflict injury on the man, hut it could not bo said that ho had gone to do injury with deliberate intent. Up to the time that he found his wife in the room he had no reason to suspect any impropriety, and therefore could not have gone with intent to do injury to Bradley. That ho had done some injury to Bradley was admitted, but this was done as the result of the scuffle which took place in the room. No knife was used, and no razor. The witness O'Connor saw accused in the room, and he had told them that he saw neither knife nor razor. Moreover, accused was a non-smoker, and never carried a. pocket knife. Counsel put it to the jury, as to what they would have dono under similar eireumsiances with such strong presumptive evidence of wrong-doing on the part of this man. "Would they stand quietly by and merely order him out of the room? AYn s a husband to acquiesce in such conduct, when the circumstances were so suggestive? Ho submitted that they would have done as Baxter did. Counsel also reminded the jury that although Bradley had given evidence in the lower Court, and made a statement to the police, he had never until that day, said anything about the accused having a razor in the room. And was it likely, he asked, that if accused had an open razor in his hand, he would merely have inflicted slight injuries on Bradley? Would a man in a justiciable rage, merely cut below the legs one whom he thought guilty of misconduct with his wife, when he could have cut him about the body or throat? Counsel asked the jury not to believe what Bradley had said in this respect, and remarked that if they did not believe this part of liis evidence, they would probably not believe much else that ho had said. There was a scuffle in the room, some glass was broken, and it was clear that the injuries were inflicted by something else than a knife. It was an attack on Bradley without an instrument, and the punishment administered was properly administered under the circumstances. Counsel asked the jury to view the matter as ordinary men of the world, and ask themselves what they would have done under the same' circumstances. Their duty was clearly to acquit the accused. * . His Honour summed up, and after a brief retirement the jury "returned with a verdict that accused had been guilty of assault, justified by the strong provocation given. A £25 FINE. Before the Court rose for the day Laxtel* was put into the box for sentence.

Mr Raymond suggested that ihe finding ot the jury amounted nracticaiiy to a verdict of not guilty." Iho jury had at all events acquitted the accused of the major offence. Prior to going to Fairlie the accused had been in Central Otago, and he had always born© a, .good character. The report of the probation officer would show this.

Probation Officer Weathered put in his report, and the Judge read it. His Honour said the verdi.ct of the jury did not amount to on© of not guilty. The jury had acquitted tl-e accused of the use/ of the kmH but had convicted him of assault. .ho had not chosen to go into Jl3 witness box to -give an account of his actions on the night of the assault, and iio (His Honour) could quite mid : •-i,a/id his not doing so. Accused appeared to have kicked the man Bradley a+ter he was down, but the jury const lor«d that he had done so under gr3tt> provocation. The case was not one totprobation or imprisonment, and accused would bo fined £2O, and £5 costs. THE GRAJS T D JURY.

The Grand Jury returned a second, time at 12.20 with true bills in eacli of the other cases, and they wer.e dis-r charged. ALLEGED PERJURY.

James Monahan, of Waimate, was charged with having committed perjury at the Waimate Court by swearing that he did not go out with a gun on August 28, and shoot 1 a dog belonging to Mr Edward George. 1 Accused pleaded not guilty and 'was defended by Mr Raymond. The case was heard before the following jury:—F. C. De Lambert (foreman 1 ), C. Reid. D. Ness, G. Niall. J. O. King, D. Scott, \V. J. Scarf. L. Hay ward, W. E. Hayes, H. Paton, F. C. Chapman, and W. C-. Boyce. Mr "White - outlined the case for the prosecution, and called, W. Purchas, Clerk of the Court at Waimate, said that the Court action m Waimate was one in which Edward George claimed £lO damages from the accused for shooting a dog. He' heard the • accused say at the hearing of the case in Waimate, that he had no gun in his possession on the day on winch the dog was shot. . As a result of the action iudgment was giy«n, for.pTaintiff for £5 and costs. Middleton, solicitor, Waimate, said lie appeared for plaintiff in the case, at Waimate, when accused swore that he did not shoot George's doai J

that lib had no gun in his possession at the time, and that he had not handled any gun about that time except one in Martin's auction room. To Mr Raymond: Witness could not remember who administered the oath to the accused, but it was either the bailiff, the Clerk of the Court, or the uoliceman.

F. It. Pearson, bailiff at the Magistrate's Court at Waimate, and J. S. Butcher, also of Waimate, gave supporting evidence. Harold Hawkin, of Waimate, a lad of 14 years, said he had seen the accused with a gun, and saw him fire at George's dog. E. A. Julian said he remembered 31st August, and knew accused. When he was going to work about five to eight on that morning he heard a gun go off, and saw accused with a gun in his hand. He al,so hoard a dog yelp. Eventually saw the clog lying down in Leonard Street in front of Foster's factory.

Christopher Edwards said that it was two or three days before the 31st that' George's dog was shot. The gun was kept in witness's room, and accused was in tho habit of coming in and out. The gun was removed from witness's room about the. time the dog was shot, and was not returned for several days afterwards."

Constable Pender said he was present at the Courthouse at Waimate when the case was hoard. Accused swore then that he did not shoot the dog, and that he had not used a gun for four years preceding the date alleged. To Mr Raymond: Ho did not remember who administered the oath to accused.

For the defence Mr Raymond called George Mclhvrick, farmer, who gave evidenco as to the previous good / character of the accused.

Mr Raymond said ho had several other witnesses to sneak to the same effect, ■ but Mr White said he would admit that accused had previously borne a good character.

Mr "Whito did not address the jury. Mr K.aymond addressed the jury. He pointed out that in order to prove perjury against the accused it would be necessary to prove that the accused not only made a false statement, but that he knew it to be false when he made it. He swore that it was not George's doc which he had shot, and he firmly heheved when he said it, that this was ' the truth. When the bov Hawkin saw tho accused shoot the dog accused said to the boy that it was not George's dog;, as George's dog had been poisoned. And tho bov Julian who also heard the shooting, said that the dog which was shot ' was IVlcrherson's dog. It was afterwards shown that both the accused and the ad Julian had boon under a misapprehension,, but there was nothing to support a wilfully, false statement'on the part of accused. As to the statement .by accused that ho had no <nm this was explained bv the fact accused did not own a gun. and he meant, by his answer, that he ch'd not own a gun. The one he used was a borrowed gun. -Further thru ihi* ;■ had not been proved that the accused naa given his evidence on oath a* none of the witnesses could sav who administered the oath to him " His Honour said the accused had denied havnig shot the dog. and also had lie had a gun. There was evidence that he had s h ot the dor. and he nad apparently endeavoured'"" to m'isead the Court by stating that ho S, ( f g««- ,It ™s "immaterial ulieUiu he owned the gun or not: the -act remained that ho used a. gun'- his evidence in the lower Court 'was equivalent to a falsehood, and he had heen guilty of perjury. ' His Honour ii W V 0 - md . to ™t the case stxongly to tho iui-y. m view of the extremely ingenious wav in which ed to cloud tho real issue. He had told phiaseology used when accused had given nis evidence in the lower Court Z al^,f, d t ;« fc accused told tho Court he did not own a gun ho meant that tho gun he had his But it was quite clear that by his answer he intended to mislead the Court by implying that he had not tho means to shoot the dog. It was S liis Honour s opinion, a clear case of Sef' but Jt " as for the to '■ T^ e i«i'y returned a verdict -of ft With a Stl -°»K recommendation to mercy on account cf prisoner s previous good conduct. Mr Raymond said that M.oahaa had been for some years in South Canterbury, and had always borne an excellent character.

His Honour said he was pleas-d that the ]ury had not acted on the defence put up by learned counsel for the accused. Had they done so there would have been a serious miscarriage of justice. Tito offence of .perjury was all too common. In this case the_ accused had deliberately, committed perjury, thinking thereby to profit MKI he should receive substantial punishment. He wonkl be sentenced to six months imprisonment WAITING JTJE.OBS.

Waiting jurors were told at i 20 ;i m that they must le in attendance at Court at 10 o'clock this morning unless there was a notice in this 'morning's "HerpJld" notifying that they need not attend. MISSING.

The man, G. McLeod, who was to have appeared on a charge of false pretences (in connection with the sale of valueless fire extinguishers) did not appear when his name was called. It is understood that he lias left • the Dominion.

His Honour asked who were the bondsmen for the accused.Mr White said that one was proprietor of' a merry-go-round, and the other was secretary to the Waterside Workers' Union in Timaru. The accused was let out on bail in two sureties for £SO each.

Mr White applied to have the recognisances estreated, and His Honour made an order accordingly.

' RAPE. James John Ellen, of Waimate, was charged with unlawfully knowing a girl aged 15, rape and assault being also alleged against him. ■ Prisoner pleaded not guilty and was undefended. Tho case was heard before the following jury: W. Miller (foreman), J. T. Ivey, jimr., T. Craigre, F. Tho.npson. J. Sutton, W. D. Miller, G. Bracefield. S. T. Cornish, F. l?la nires, T. Ward,' F. C. Guildford, s.nd W. Palmer.

Mr White stated the case for the prosecution and called evidence-. Tho case was of such a disgusting character that His Honour cleared the Court, while it was being heard. Four witnesses were heard, and two remain to be heard. The case will be continued at 11 o'clock this morning. The Court rose for the day at 6.10 p.m.