FOUND GUILTY

Timaru Herald, Volume CXXXVII, Issue 19783, 26 April 1934, Page 6

FOUND GUILTY

MANSLAUGHTER CHARGE ACCUSED RECOMMENDED TO MERCY In the Supreme Court in Timaru on Tuesday, Harvey Kammerly, an inmate of the Old Men’s Home at Ashurtbon, was charged that at Ashburton on or about February 19, 1934, he unlawfully killed Alfred James Ellen, thereby committing manslaughter. Mr W. D. Campbell conducted the case for the Crown, accused being represented by Mr L. M. Inglis. Accused pleaded not guilty. The following jury was empanelled: Messrs J. F. Lewis (foreman), L. E. Cornwall, R. W. R. Munro. L. M. Moore, F. Matthews, A. McKay, G. Nicol, R. Callaghan, A. B. Ramsay, i>. A. Hurst, T. H. Ivey and W. J. Rosevear. Outlining the case, Mr Campbell said that the facts were quite simple. Accused had been an inmate of the Old Men’s Home in Ashburton. Accused and Ellen had been in the smoking room, and there had been an argument concerning the opening of a window. Accused wanted it open, and Ellen wanted it kept shut. Ellen had grabbed accused round the legs and accused had pushed him away. Ellen threatened accused with a walking stick, and accused picked up a heavy cribbage board and hit Ellen on the head. Later Ellen died, and accused was now charged with manslaughter. Incident Related. Harry Honor, an inmate of the Old Men’s Home in Ashburton, said that on the morning of February 19 accused and Ellen were in the smoking room. The window was up, and Ellen went to put it down. Kammerly wanted it up and went to stop him. The two men had a squabble, but nothing happened then. Later Kammerly asked witness for a paper and he gave it to him. He was then standing on a seat by the window. Witness’s speech was difficult to understand, and Constable R. Chivnal (Ashburton) acted as interpreter. Witness said that Kammerly threw the paper across the room and Ellen then grabbed Kammerly by the legs. Kammerly kicked him away and Ellen then picked up a stick off the seat, and threatened to hit Kammerly. After Ellen had picked up the stick, Kammerly went round the table and picked up a cribbage board. Kammerly said: “If you threaten me again I will throw this at you.” Ellen did threaten him again, and Kammerly threw the board, hitting Ellen on the side of the head. He fell on the top of the table, and shortly after that the matron took him away. To Mr Inglis, witness said that when Ellen had Kammerly round the legs, Kammerly called out that Ellen was biting him. After the squabble on the seat, Kammerly went away and sat down, and commenced to read the paper. Ellen pulled the paper away from Kammerly and threw it over the top of the table. Kammerly then went round to pick it up. Before Ellen picked up his stick, nothing was said or done by Kammerly to provoke him. Ellen waved his stick two or three times, but witness could not say vhether his attitude was threatening or not. Kammerly asked him two or three times to put the stick down, bur he would not do so. When Ellen picked up the stick, he said something, but witness could not remember what it was. Donald McCorkindale, another inmate of the Home, gave similar evidence. “I Did Not Touch Him.” Eleanor Jane Knight, matron of the Home, said that Kammerly was the more powerful of the two men. Just after 9 L.m. on the date in question, she had been called to the smoRC room, and found Ellen in an almost collapsed condition. He was sitting on a form, with blood streaming down his face. Kammerly was talking, but she could not recall anything he said. Ellen said: “I did not touch him.” She thought the remark was prompted by something Kammerly was saying. To Mr Inglis: Kammerly suffered from a very weak heart, and was not in good health. Ellen had received injuries about 30 years ago, but had never recovered, and as a result he had been admitted to the Home. To His Honour: His ill-health had been due to a previous accident. Dr. A. J. Mason, superintendent of the Ashburton Hospital, said that at 9.45 a.m. Ellen was admitted to hospital. He was unconscious, and was bleeding from the right ear. He died four days later. Witness conducted a post-mortem, which revealed an extensive laceration of the brain, which was the actual cause of death. There was an old injury to the skull, the bone of which was in a thinned condition. The old injury was about an inch and a half in diameter. The fresh injury was about an inch behind the old one, and ran vertically down the right side of the skull, and then along the base of the skull. The new injury would be consistent with the man having been hit with an object such as a cribbage board. Constable R. Chivnal, of Ashburton, produced a statement made by the accused, This closed the case for the Crown, and Mr Inglis intimated that he did not propose to call any evidence* Counsel Address JuryMr Campbell said that there was no doubt but that Ellen lost his life as a result of being struck on the head by the cribbage board, which had been thrown by the accused. Provocation itself was no excuse for a man killing another man. It might be suggested that Ellen had assaulted accused with insult. It might have been that Ellen had grabbed Kammerly round the legs, and had bitten him, but that had passed away. Even if they regarded what Ellen had done as an assault, then there was this limation that the force used by the accused to repel him must not be violent. In his statement, accused had said that he had lost his temper, and had thrown the board at Ellen, and it could not be disputed that that action had caused Ellen’s death.

Mr Inglis said that there were different offences of killing, one of whico was manslaughter, and even as to manslaughter, there were varying degrees. When accused threw the cribbage board there had been no intention to kill. In this case they relied on self-defence, and if accused came within the meaning of section 73 of the Crimes Act, then it would be the duty of the jury to acquit him. The evidence had shown that Ellen had raised his stick, and he submitted that it was the intention of Ellen to strike Kammerly, who was suffering from a weak heart. The evidence also showed that the cribbage board incident was a result of the attack being renewed. Counsel submitted that the natural thing for accused to have done was to have thrown the board in order to defend himself. It was the only thing lying at hand that he could use to aofend himself with. The board was of a shape which did not permit of its use as a weapon of defence excepting

in the manner it had been used. The facts fell within a very small compass, and he submitted that he had convinced them that the accused had acted in self defence. Judge Sums Up. Summing up, His Honour said that both counsel had explained the law, and in substance they had said the same thing. In this case the trivial incident which led up to the quarrel was the opening and shutting of a window. In all manslaughter cases, a defence had to be submitted, and in this case counsel had advanced the plea of self-defence. The means of defence had to be proportionate to the danger feared. What they had to consider was whether the accused feared for his life as a result of Ellen having waved his stick and threatened him. The evidence had been clearly and fairly given, and no further evidence could have been presented. The only thing which had struck him was the singular lack of testimony regarding what each man said to the other. It seemed unnatural that two men who had reached the age of these two men had not fought with their tongues instead of resorting to physical violence. The jury retired at 2.40 p.m. and returned at 3.20 p.m. with a verdict of guilty. They made a strong recommendation for mercy on account of the age of the accused, and the provocation received. His Honour said that the ease was a very difficult one, but he thought the jury had come to the only possible conclusion. His Honour said he realised the difficult task the jury had had, and he would take the facts into earnest consideration. Accused was remanded for sentence until the conclusion of the session.