ALL SMOKE CASE.

Star (Christchurch), Issue 17350, 15 May 1924, Page 1

ALL SMOKE CASE.

JUDGE SUMS UP AND JURY RETIRES.

“ HISTORY of horse STARTED BADLY.”

Evidence in the All Smoke case concluded yesterday afternoon. This morning counsel addressed the Court on behalf of Tucker, and then his Honor summed up. The jury retired at 11.50 a.m. At 1 p.m. the jury was still out, and the Court adjourned till 2.15.

THIRD DAY’S HEARING.

•The charges against William Williamson, Charles Hopwood Capes Alfred Tucker, to which they pleaded not guilty, were: (1) That \on November 17, 1923, at Christchurch, they did conspire to defraud the Otahuhu Trotting Club. <2) That on November 77, at Christchurch, they did conspire tv commit a crime punishable by three years’ imprisonment with hard labour, to wit, the crime of obtaining money from the Otahuhu Trotting Club with intent to defraud by representing a trotting horse unknown to be the trotting horse AH Smoke. (3) That on November 21, at Auckland, with intent to defraud, they did attempt to obtain of and from the Otahuhu Trotting Club the sum of £175. by representing a horse unknown to be the trotting horse All Smoke. (4) That on November 24. at Auckland, with intent to defraud, they did’ attempt to obtain of and from the Otahuhu Trotting Club the sum of £175 by representing a horse unknown to be the trotting horse All Smoke. Wh£n the Court adjourned last night , Mr Thomas had not concluded his remarks *to the jury as he was suffering from a throat disability. .Mr M. J. Gresson appeared with counsel this morning and stated that as Jlr Thomas could not proceed'he, Mr Gresson, would conclude the. address, with his Honour’s permission. . HTs Honour, in granting permission, expressed regret at Mr Thomas’s disability. Mr Gresson devoted his remarks to the weight which the jury should attach to circumstantial evidence. The mere fact that Tucker was the owner was nothing in itself, as many things might happen without his knowledge or permission. The transaction in connection with Wild Moa did not necessarily inculpate Tucker, nor could anything be held against him because he had not -collected the stakes; if the Trotting Association refused to pay he could not recover. The only direct evidence against Tucker were the statements by M’Donald and Bennett. M*Donald had stated that Tucker said he wanted to save his license. The Crown had to prove Tucker guilty by reliable and truthful witnesses and counsel asked if Bennett was such a man. He had changed his story in the Court, and this was different again from the statement, he had made to his solicitor. •*' JUDGE SUMS UP. In the course of his summing up, his Honour said that the point the Crown relied on was a very simple one and they had to remember that. Although the for the Crown had been put forcefully by the Crown Prosecutor, it was put fairly, and without any attempt to do an injustice to the accused. The duty of the jury was to consider the evidence fairly and dispassionately and if they’ found a reasonable doubt in their minds as to the guilt of the accused they should be given the benefit so that no person would run an unreasonable risk of being convicted when he was innocent.

The main question was whether a horse was substituted for All Smoke. There were certain facts which were undisputed: There was no doubt that All Smoke was nominated and. accepted for both races; it was alpo ck cr that some horse did, in fact, run in the two races, that the same horse ran in both- races, that it was *a black horse, and further that the horse broke down on the second day. The only question was: Was the horse that ran All Smoke ? CLEARED OF SIDE ISSUES. His Honour said he found it desirable to put it in that way so that the jury might have their minds cleared of any fcide issues. Clearly certain questions had been agitated during the evidence and the addresses of counsel, which lay clearly out of the consideration of the case. A great deal had been said about the mistake in the race-book ; it was a no doubt, but it had been put more strongly than 'that. It had been urged that it was the duty of the stipendiary stewards to explain, but the .Court was not trying the stewards for carelessness. There had been questions as to whether a search had been made at the boilingdown works for the shoes of the horse that was destroyed. If the shoes had been produced they would have been immediately ruled out because it would have been impossible to identify them as shoes of the actual horse ; that issue could be laid entirely aside. QUESTION OF THE HIDE. Then there was the question of the hide, and again he reminded them that they iiad nyt to decide whether it was the skin of All Smoke, but whether All Smoke ran. There was a hide of some horse and it spoke for itself. The jury were entitled to look <it the hide and exercise their knowledge and commonsense. Was the hide a natural one or was it one that had been sophisticated by dyeing. The only importance of it was it showed that if a horse bad been, substituted it was a black horsp. It came back to the question of whether

All Smoke ran. All juries were bound bv their oaths to bring in verdicts according to the evidence, and not according to suggestions, which had no relation to the evidence, and not according to theories which vould not fit in with the evi-

dence. They had to bring in a verdict according to the evidence in the particular- case which they were trying, ARRIVALS AT OTAHUHU. His Honor jh-oceeded to review the evidence concerning the arrival of two horses at Otahuhu, the story of th*i hotelkeeper, who deposed to the fa«t that Williamson and Capes had stayed there lor some days,'and that they had a black trotting horse. He said that it was the horse which ran in the races. Then there was the evidence regarding Williamson and Capes having been seen on the road which led to tlie boiling down works. They would have difficulty in avoiding the conclusion that the horse spoken of by Brownlee, the clerk at the works, was the* one which had been seen on the, road. There was also the evidence that no other horse was taken in at the boiling down yorks that day. There was no other explanation. or no direct evidence as to what happened to the horse. There was u possible explanation, to which he would refer, later on.

After reviewing the 'evidence by which the hide was identified, his Honor dealt with thp testimony concerning the horse which ran in the , races. There was the evidence of Wilson, but it would be unsafe to rely on the evidence of Wilson entirely. To the same extent that applied to Bennett, but the main evidence was not that of these two men. There was other evidence. ! There was Lee. who was not cross-examined by counsel for Williamson and Capes, and he had been asked only one question by counsel For* Tucker. lee said definitely that the horse All Smoke was hot the one that ran in Auckland. “ A BAD RECORD.’ * The Crown suggested that the record of All Smoke* was so bad 'that it was incredible that he could have put up such a reeprd; there was no evidence that it was trained afterwards or improved. They could not shut their eyes tQ the fact that the history of the horse started very badly and they had no history as to recent performances. Explaining the definition of conspiracy, his Honor said that it where two or more persons agreed by deceit or falsehood or other fraudulent means to defraud the public, or person or persons —which included a corporate body such as the Otahuhu Trottiug Club. With reference to the evidence Capes and "Williamson appeared to be connected with- the whole of the transaction. The nomination of a horse belonging to Tucker was in the handwriting of Capes. That was the first step* then they were together at Otahuhu, and two men arrived at the boiling-down works with a horse. If the jury came' to the conclusion that these men were connected in consort and that a horse was substituted for All Smoke then they would be guilty of conspiracy. ‘ ‘ Where the case for this Crown depends on the evidence of those witnesses who made, contradictory .statements, then I need scarcely inform you that you should not find anybody guilty, if your conclusion is based on that evi-» dence,” said his Honor. The . evidence against j Tucker was weaker than that in respect of the other two, and they must be satisfied beyond reasonable doubt, after coming to the conclusion of guilt—if the;/ did so—that Tucker was a party to the scheme; if he had lent this horse for the scheme then his guilt was as cicalas the other two.

His HbnoA-’s summing up lasted ais hour and a quarter. At its conclusion he expressed to the foreman regret that he had taken up so much but he said he thought it was his duty to clear up any matters which may have been doubtful in the minds of the jury. NO COPY OF EVIDENCE. The foreman asked if the jury could have a copy of the evidence if necessary. “I am sorry 1 cannot do that,” his Honor replied. There are reasons for which Judges decline that, even in cases of extreme importance. At the trial of Casement for treason, even in a case of that gravity, Lord Reading, who presided, refused to do that. The reason is that the notes are taken for the Judge, they are disconnected and sometimes a little incoruect. In any case I suppose it might lead to confusion in the jury room. 1 think that the reasons which have induced Judges to do that are sound.” The jury retired at 11.50 a.m.