SUPREME COURT.

Star (Christchurch), Issue 19, 4 June 1868, Page 2

SUPREME CO URT.

VVr,DNK6t)AY, JWKH 3, (Boforo Mr Justice G reason.) ARSON. Mossis Duncan nml Williams having ad» dressed tho Jury for tho Crown and the prisoners, respectively, his Ilonor summed up as follows:— Ills Honor— Gentlemen, in this caso tiic prisoners, Louis Derlincr and Betsy Herllncr, aro jointly indicted for unlawfully, feloniously, and maliciously sotting flro to a certain dwelling-house, tho property of William llunnlbul Lane, situated on tho northern side of tho Ashburton, with intent to defraud n certain Insurance Company, called tho Liverpool, London, nnd Globe. There is a second count in tho samo terms, except that it has boon called a certain «h«|». Tho Crown Pr.)flecutor yrm not quito suro whether you would think tho building wns properly described if ho called it a dwelling-! house, or vice versa, so that ho thought it hotter to framo two counts Inordor to remove! tho possibility of a difficulty occurring. Now, j tho points you wilt have to consider flrst, will j bo, whether tho priioners, in pursutiucnof a common consent, us regards tho male prisoner, tho promises were wilfully set on flro, bocauso if they . worCi Although he was not present, I must direct you that if it was by his dlreotlon^id with his full concurrence that it wag (lone, you would not bo At liberty to acquit him on tho grounds of abacus from tho placo. Tho first point you will have to consider lc, whether tho house was sot lira to wilfully by Mrs Berliner, and it so, was it sot flro to with tho sanction nnd concurrence of her huibnnd. Woll, supposo you arc satUfled that it was set (Iro to, you will havo no dim cutty as to tke description of it, because there is evidence in the ense to satisfy you that it is rightly deicribed ns a dwelling-house or shop on tho north bank of tho Aahhurton, and also that it was tho property of William Hannibal Lino, Tho way in which that Is proved, N by tho production of a deed of mortgugo, showing tlmt nt the timo it was legally in»do ovor to Mr Lave. Now, then, ] tho two main questions that you have to determine, arc:— lst, wan it wilfully set on fire? 2nd, If it wai act lire to by tho female prisoner, was it net flro to by her with the sanction and concurrence of her husband, or in pursuance of a common design between them? Suppose you are satisfied on that point, that it wits net lire to by the female prisoner by common design, you will still further have to find that it was so set flro to with tho intent to dofraud this company that is mentioned in thu Indictment— the Liverpool, London, and Globe Insurance Company. Now the only w<«y in which Jurow can arrive lit the intention of any human being— for they cannot know tho secrets of their minds —is by their acts. If you arrive nt the conclusion that the fraud upon this company was the natural consequence of the act* done by tho prisoners, then you are at liberty, of course, to conclude the fraud on theso acts. Now, I think it will be convenient, in considering this question, to consider flrst tho case of Mm Itarltncr more prominently, beeiuae the evidence itt the case <)CJild more with her. and «ho, H guilty at all, took n moro active part Jn tho destruction of tho building. And the most material evidence Against her U that of tho witness Dawkltio, on nhoia testimony tho| priflonctn 1 counsel has made so many com- j moitd, N/>w, gentlemen, ono of the advanUigefl— and what is considered a great ndvantngo—of our trial by jury li, Mint the jurow liavo an opportunity to otywm the demoanour of every wU«<JW "who eomoa forward to be cKdnihiod, They hato an opportunity of forming their own opinion whether a witness is tolling th« (ruth or not. I need not tell you th«t tkero is every variety of giving .testimony In Court. You ar« toll by the prisoner*' counsel, in very tUroiift tci'ins, that tho witncus Dawklns has given his ovidenoo illppniuly, unbecomingly, nnd curolessly, und (hut ho didn't consider it worth whllo to crosrfcxanilno him. It i« not for mo to express m opinion on that. I only ttwk you to review, as far m you can, his deiiiCiinour iwd his conduor, and tojmlgofor yourselves whether you have any reason to concludo that thcro was anything so unbecoming or improper In Id* conduct at to lead you, m tho prisoners' ' counsel aiki you, to discard his cvidonco from your minds alto* gctlior. Of courao, if you arrive at that conclusion, you -will pay no Attention to it, I certainly do not ftMWrc of tho way In which

ho gave liis evidence ; it was given in a flippant manner, which led ono to believe cither tlmt ho was very stupid or inattentive to the questions naked him by the Crown Pro3«eutor, or w«9 not, as fully as he outiht to have been, impressed with the conviction of the solem* nity of the occasion. It is itrictly for you to judge of the weight duo to his evidcMce j it will bs ono of the questions which you wilt have to decide amongst yourselves at the outlet of your deliberations, because there is no doubt that his evidence, if credible, is most important in the case, Without his ovidence, it would be very difficult for tlio Crown to obtain A conviction ngninst {ho prisoners. Now, let us sea what his evidence la, (IIU ITonor here read the ««vld.Mico of Dawkins, Cawston, Monaghan, Like, Turton, Hetherington, Mrs Uollc, and others, commenting on it as he proceeded,) The oiss ta ono wholly of presumptive, or what la called circumstantial ewlJenee. We luivo no direct evidence either that Mrs Ber» liner or her husband get flro to tho store. The Crown says. " I have proved before you, the jury, such facts as arc inconsistent with Any other conclusion tlntn she ninst h*»« set fir« to that store," Tlmt U what the Crown has undertaken to prove to you, and yon must not bo satisfied with anything short of that to convict the prisoners. You must bo satisfied that tho facts arc such ns to leave no doubt on your minds, <w reasonable man, that she <*ct lire to the store— in fact that they are inconsistent with her innocence. It will be fop you tosiy whether tho male prisoner did not wnnt to make a favourable impression OR tho mind of Hawkins at the Inque**. If you nre flt\tl«fle-l that the place was wilfully sat fire to by tha feznalo prisoner, with tho sane* tion and conenrrenco of her husband, it will be most important for you to consider the evidence, of Mr Lane and Mr Cameron, in order to judge whether there wm a fraudulent intent in setting fire to it— whether it was to defraud this particular company. [His Honor here read Mr Lane's and Cameron's evidence.] You will recollect, gentlemen, that you have first to be satisfied that tho house was set fire to wilfully. It wilfully, it nmxt have been set fire to by the femata prisoner, because the male prisoner was away. In order to convict him, you will have to bo satisfied that it was set fire to by her in pursuance of common design. And supposing you aro satisfied of that you will have to be eatUfted that it was the house of William ITannibal Lane. Yon will have .no difficulty about that, because it is proved by the mortgage dcedj and you will have to decide whether it wns set fire to to defraud the Insurance company. You have no distinct legal evidence that there was a policy of insurance effected at all; but you have cvidenco that there waa a claim mado by the prisoner at tho office in Christchurch, said to bo the office of thU company named in tho indictment; that in that office woi a clerk (Mr John Cameron); that that gentleman said ho was acting as a clerk to Mr William Bowler, who was acting as the agent here of this company. So that if you hclloTo tlmt evidence, it will fee for you to any whether tliat U op is not evidence of a fraud on tho part of tho male prisoner, he having made n clnim which ho had reason to believe would bo recognised by the company. Of course, we are now (uwumirtft that he set fire to tlte house. Putting all tlio facts together, it will bo for you to say whether thero was an intent to defraud, if you are sitUtlml that the house was wilfully set fire to. If you find that the female prisoner set It on fire without her husband* concurrence, you will have to arquit him ; and in order to convict her, you must bo satisfied that she had not only a fraudulent intent generally but an intent to defraud ' this company. Unless .«ho did the act in complicity with her husband, there is no way to fix her with the fraudulent intent, and therefore, unless you think the prisoners wcro in complicity, Ido not see how tho case is completely made out against her, for you mv.it be satisfied, not only of the burning but of the fraudulent Intent. I wilt again ask you to recollect that this is n ciiso taming solely on presumptive or circumstantial evidence • tlmt is, there il no direct evidence that tlw house was set fire to by cither of tho prisoners, and that being ho, you must give them tho benefit of the doubt, unleis you aro satisfied that you cannot consistently arrive at the conclusion of their innocence. The hypothetical cases cited by the prisoners' counsel would only shew that there bad been most extraordinary coincidences— cases in which the facts came so closely that the jury could not, ns reasonable men, come to any other conclusion than that of the prisoners' guilt. That only come* to tho same conclu* nlon I have asked you to remember— that you cannot find a verdict of guilty against the prisoners unless the evidence is no strong «4 to make it inconsistent with their Innocence, With these remarks I will leave the ease in your hand j, Me William* asked tho Court to direct the jury that a* there was no policy of insurance given in evidence, there can be no fraud, as tho company could not be defrauded in the manner set out in the indictment where there la no policy. .*,",'„ •'*'" Wh Honor declined .'to do no, reserving the poJnt for tho Court of Apical, and directed the jury to consider their T«dlct, Tho Court, ndjourneel ior haif>an-hour, re-sitting at 3.45. The jury returned into Court, wHU a verdict of "Not Guilty" "on .both counts, ana the prisoners were thereforo discharged. The Court adjourned. Tiiursdat, Jnrts 4t The Court opened at ten o'clock. . MURDER, William Henry Monaghan was indicted for tho wilful murder of George Prisby. There was a further count charging the prisoner with manslaughter, Tho prUoncr pleaded "Not Guilty." Mr Duncan prosecuted on tho part of tbt Crown, and t)r Foster appeared for tho deI . v ■_' ■ ' ; i ..'."...'.. ▼"

I Mr Oharlcß Oowald Wftfi chosen foreman of. S tho potty jury. B On the application of Dr Voaior, all tho f- except tho medical v/ltnodnon, woro I ordered out of Court. I Tlio Crown Prosecutor, having fltftlod the oano to tho jury, tho following evidence wan adduced;— • <T. W. S. Coward ; I am a legally qunlimu jHCdlcnl practitioner In Chrlitohurch, J. rcmombor halng called up In tho night tlmo on tho flth of March last, I proceeded l<> the junction of tho Lincoln and Riorum roadn. I flaw there n pornon on tho ground, surrounded by Huvml who were atmifldng him JJeftrlng that ho had boon slabbed In the breast, I advised them to take tho man l<> Iho hospital, i accompanied him Uwe, «'"' '!«- llvcrcd him Into tho charge of. Mr Powell, the lioubo Burgeon, I nflcrwardu «aw tho man In tho lloHplMl, allvo, I addroflnod him ns Frlflby, and ho ausworcd to that name, I Mndorntood that his mime wan George .Frlttby, I afterwards saw lilh dead body, /minediately after I delivered tho prisoner to Mr Powell, I «aw him examined, lie hud a wound on tho left side of tho hnmst. It wnn an incised wound, miido by Homo sharp Instrument, as If from a fltab, [Knlfo shewn to witno«n,] The wound was about the size that such n knlfo would mnko. - Orosfl-oxamlned by Dr Ji'oflter! A a near as lean guess ie was about half-pant, 12 whon I was called up, I didn't look at my watch; I hnd boon Homo time In bod, No lliuo w«« lost In bringing the man to the hoflplial, 1 mur "Ftiohy put to bed. The wound was examined immediately that night, but no probing took SlaoG, I h/ivo no pomonal knowlcdgo of tlio opth of tho wound, nor of the direction Inwards. lam not poaltlve, but I think tlio twound was botweeu Hie first and second, or (tho hwmul and third riba. It was not my duty ko examfno tho wound minutely, I cannot Isay whother ii'rlnby wan tall or hlkiH. <W ho wan lying on all oocaflhmfl on whieii I naw lilm. I. hfc-llfcYo thft wound wa« made by tho larger or mi<m a blade. Ido not hollovo it WAQ a draw-nut, inflicted by oltlior of tho omallor blados of tho knife produmli Idld not doo tho blow ntruok, iwiil hitvo no peofoflslonal knowlcdgoofthomaniKJrln whleh tho blow whb Inflicted, T have ftu opinion that it was a filab, If it had been a cut, there would hare been a longer incised wound on tho Hurfucc. It would havo boon Injurious to have probed tho?, wound. Wo could certainly see about thojolgbtb of an Inch into the wound. That In the tblekncflfl of the external flldn, On twxv occasions I was in consultntion about ITfJflby'fl caso. John Hlehard Glbbss I am a minor, In tho month of. March last, I was staying at the Olouccflter ArniH, My male at that tlmo was George Frlsby. Ho was niaylng with mo at tho Glasgow Arms. I remomlior tlio night of tho.'flth of March. A womnn, named Mra Iloyward, ciimo Into the Gliwtfow Aphih that night, Frlttby nnd niy«fllf wore about half-An-hour in her company In tho Qlangow Anne, And we then left in company with hor to nco lior homo. A young man namod William Kcrr joined us on tho way, Wo called In at tlio' White Homo. [Idontlfleit Mrfl Hoy ward.] Wo Ihou profloeileii to a house behind tho JRov Mr Frascr's, wltuated off tho Lincoln , road. Ifrlnby and Mrs Iloyward wont Into the liouho, and I followed at hor rcquoati Wo piißHod through tho front room Into a soconrt. There was, iv man thero in bed. Ho had come to tho door to let us In and gono back 77^0 bed. Ho apnonrcd to bo an/jry with Mrs M^lcy ward, and nlio told him not to bo no. as *- d\o know the frlonds of Jfrlsby and mynolf at ' - homo, and wanted uh to hco her two boyfl, an '' Wo were going homo, Romo oilier convoraa- -, tlon took pluco, which I cannot remember. I (shortly aftorwardii went out. Tho prJflonor in tho man who wan In bcd ( Krluby, Mrs Dfoyward, and myfiolf came to tho front door together, Frlnby asked tho primmer to have a drink, saying "Here, mato, don't ho cross i havo a drlnki" I'rfsonor nald, "All right," And took tho drink which wan gin—whether Old Tom or hollands 1 don't know. We wore* about Imlf-an-hour in tho house fnltogothor, The prisoner flcomed to be ivHttlomoro xoolublo after wo had lioon In tho liouw ft f<w minutes than ho wan at flrflfc. Wo Utk Jilm In })«wl whon wo oamo to tho door, Whon wo rnanhod tho door, I mtid' " We'll go homo now, George." Ifo said " I have some nppkfl and nutn, I will klvc thorn to th« «hlldron," I, hoard him Hpcak to tho chlldrnn, Vho wcro in bed in the front room, an I loft tlio door to go out. I joined William Korr in tho open air, loavlnjr lfrlnby Inside tho house, Uoforo I had gon« live yards from tho door, Prlwby Crtmo to It. Kirn wa« about 20 or 30 yards from iho door. Aftor talking to him a few minutes, 1 went hack to tho front door to onk ITrinby to nomo homo, Tho woman (M™ Hoy ward) kept, us talking for Home tlmo, liYfsby, h!ki, and ' wor« outside tho door, The prisoner came to tlio door In hla nhfrt, nnd ftold Mrs Iloyward to eomo inside teho nnli! "All right. IMII, I'll bo in in •a fow mlnutcH." Mm Hoy ward began . crying, and said " Oh, what would my friend* Buy If Ihey saw mo llko thin ?" The prlnojjfir wont buok Into the houso, hii/1 roturned in a few minnton, and nnid to Mrs Iloyward, " Now, do yo\i mean to eomo into tho house ? If you don't, I'll do something for you," Ho threatened to strike her, and 1 Bald, " Mato, you won't strike hor whllo I'm 'presont," Ho nald, " Wont I ? I'll let you boo (I'll put thin (holding un a knlfo) into the 'first b — y man who Interferes with mo," Tho knife was about iho samo size mm the ono pro'luond, Tho blade was of the name shapo nn tho largo blade of this knifo. Tho prinonor had not a knife In his hand whon ho first flamo to order hor in, He ordered hor into the housd two or Ihrco ■ tlmcfl, Ho threatened her on both tho sooond 1 nnd third times. Aftor addressing mo as I liavo Htatcd, tho prisoner made a inovo from tbo door towards Mr» Iloyward. Hho ciuno behind my back, and uld » on, Hill, don't utrlko uio," lie was coming forward, and Trliiby Htoppod between him and mo, and «aid «< Don't be angry, mate." The prisoner mudo a blow or kind <><! push at IMol>y, and knocked hla hat off. Frlsby then struck him «

ion tho ohoolc, I boliovo, but cannot bo positive, with Ills opon hand—first with hla left, and then with Ills right Immediately aftor. 'Tho wiconil W«<v flti'iiok priaonor on tlio loft 'cheekbone j they woro not sovoro blown, ns they did not malco tlio slightest mark on tho prhionor. Tho 'prisoner did not niovo backward, but Immediately struck PVlal>y with tlio knlfo i\n<] mm away. Wl\on ho gavo tho blow, tho knife was in tho prisoner's rinht hand, rio/itruok Frisby In llio client) loouldn't at tho timo sco on which sldo of It. P'rtoby wont a fow paces after tho priaonor, Wllliiim Kovr wloppud Frtahy, <iu<l flflM. What to tho waiter, Qoorgo?" Tlio night was cloudy, I wont up to If-rlsby -mid Korr, and lio oald « I am stubbed." f could not hcc iho prlflonor. Jn oonsrqnonoo of what Frlsby nald, Korr and I pulled off hit) coat and shirt after an Interval of not moro than two or tlirco minutes, by which time wo had /jot into tho Lincoln Road, I Haw a wound in KrUby's , cheat i it wa« blooding proity freely. Wo put a handkerchief round bin chant, to Iry to I atop tho blood, Ho complained of getting very weak, and afterward* frll down. Two men ran for a doctor, Mr Coward cnino, and In; wuh taken to tho hospital. I loft him In elmrgo of Mr Powell, i know tho olothco which Frlflby woro thnt night. [Identifies tho clothc»]i I know Frlsby porHonally for four yearn. Fie wan /if l. ll Jin. in holglii, and wan a robust, healthy man, Tho prisoner was perfectly sober that nlghtj soworoKrlsby and Mrs l lcyward. 1 did not, to my knowledge, boo a lenifo like tho oho produced In Iho house boforo I flaw tho prisoner coming out with it In hltt hand, Cross-examined by Dr Foster i— l li«<l not known Mr» Hoy ward personally boforu tho night In question, Hho wan pointed out to mo at tho Glasgow Anns that n Iff lit km Mrs Iloyward, from Warwick. Mr Dodd, tho landlord, pointed her out to mo in front of, iho bar, whoro Frloby and n\ymU mm at that time. \V« had to going out to liavo a KlftPrt oi })nnv, after puppor. I don't know whether he had drunk auythinpr in tho liar beforo on that nlflht. When I wont Into tho bar, It waH about li«l(!-pn«t nine, ai far art I romomboci Mm J ley ward eaiuo in whllo W w<jm tliero. I did not nco what she had to drink, ati 1 didn't take any notico of hor until sho wan pointed out, Wo nooompanlod Mm Moyward home at her own request. I didn't know anything of. hor character. D'rhby, Korr, Mrs Hey ward and myooli! Hlayod about a quarter of an hour at tho Whlto Horso, I holievo Korr joliml us opposite' tho Harp tavorn. Frisby and Mrs Moyward woro walking In front, and I. behind, and Korr joined me, and WO walked up to hor house. Frittby had Bomothlup; to drink at tho White Homo, but what it wan I don't know, Mrs Iloyward had noinothlnpr to drink too, Boforo Miio wont into tho house, oho tmulo the I observation that »ho wanted some bear for jiuppcr, Wo reached Mrs Hey ward's liouso |ottWt(Mo about a quart or or half past il o'olook, TJio prinonor »ald to tho woman it was lato for her to eomo homo, but ho did not miy anything of tho kind to u», I?rli»by gave tho drink to thd prisoner in ft tumble*} how much I cannot Day, I took a Rinall drop, and wished him good night. I did not hco IVJsby or Mr* Lloyward talco any drink thoni I was anxloufi to loavo tho hoimo, and moved to tho mlddlo door. I don't think tho prisoner had tin iti to got Into bod hotwoon tho timo at which ho oamo flrnt to tho door and thon eamo out with tho knifo in his band, IMsby was cloflo to tho door whon tho prisoner used tho first throat i ho must havo heard it. Korr wnn about 15 or 20 yards oil! thon. 1 had Hocn him boforo thin pans tho house I believe that Monnghan was In bod, and that WpWby, Mm Iloyward, nnd myself woro talking at tho door outsido aftor Kcrr paswed tho liouho. Thoro wore two men standing on (ho Lincoln Iload, when wo got thoro, with Mflby, I «aw no other porson outsido tlio house. I flaw tho blade o<! tho knife twice, quite distinctly. I wn« not far from tho door whon tho prisoner l)r»t openod it. I wan (Handing oloso to him whon ho first struck liWiby and could hoc the blade quite distinctly. There wa« a candle burning In tlio Imlmoiu ttt tho tlmo, and tlio door was opon. I flftil sweai' that I did not sgo tho knlfo in the nrlaonor'fl lianda on that ovenlng whon ho wan in bed. I wasn't In bin company, and cannot say whothorho had It with him before on thatovonlng, I flaw prlflonor about 4 o'clock next morning In tholoek-up. Thofluufllowiin all over In a moment { I was simply fltaiulliwi It wan no Huddon that I could do nothing j Mm I Icyward, who oamo hohlnd my buok for protection from her hUHhaud, wa6 holding my 'inn at tho tltuo tho )irlnonor flUuick tho blow with tho knifo. I wa«i on oloho attondaneo on FrlHby during hlrt illncH» i I attendod him ovory day, generally all day long, A frlond of mine took my pluco In attendiuuio on '< l<Ylfiliy for one day after ho hud howi four dayn in hoflpllal. With that oxcoptlon, Iwm thoro tho bettor part j)i ovory day. i msvor left him alono for ■ '•oo hourfl at a tlmo except when my friend wai In my place, I never knosv him to quarrel with a man In hU Hfo, He wa« far from being a quarrelsome man. By a juror : Tho doconneil had no wulotcoat on at tho time ho wan utruok, Tho Court hero adjourned for half-an-hour.