EULIUS CASE.

Star (Christchurch), Issue 17351, 16 May 1924, Page 8

EULIUS CASE.

“ RINGING-iN ” CHARGE. JURY RETIRES AT 1.25. (CONTINUED FROM PAGE 1) '* IDENTIFIED.” Detective Lee, of Dunedin, said that be was present at- the police station in Christchurch when Blake identified ‘Willie Lincoln as the horse that ran at Gisborne. There were two other horses. Eulius and Look Out, with Willie LinOoln. Constable Thompson, stationed at Gisborne, deposed to taking charge of the negatives from the photographer, Ingram. This concluded the case for the Crown. The Court adjourned for ten minutes, and in the meantime the jury in •pected the horses. No evidence was called for the defence. CASE FOR CROWN REVIEWED. Mr Donnelly said, if the jury were satisfied that Willie Lincoln ran at Gisborne under the name of Eulius, then there was a fraud committed. It was submitted that there could he no doubt about it, in view of the number of witnesses who had identified the photographs. It might be suggested that photographs were unreliable and that if a camera was held at certain angles different results would be obtained. But there was the evidence of men like Fleming and Clarke, who had trained and driven the horse and who said there was no doubt about it. If they inspected the horse outside the Court and ccompared it with the photograph they would see from the general shape and conformation there could be no doubt tjaat it was a photograph of Willie Lincoln and not of Eulius. The horse had several peculiarities and there was no doubt about it. Fisken had identified the horse at Dunedin from its gait. The evidence of the witness had been attacked in connection with the way he had run his own horse, but it was submitted that no evidence had been adduced to show that Fisken was other than a respectable man, a farmer in a big way of business. WAS IT A SWINDLE? If they came to the conclusion that it was Willie Lincoln, the next question was: Were all the accused in the swindle or only some of them ? With Hulston and Capes there could be no doubt, because they were in Gisborne. This left Tucker and Percy Capes. The latter was the owner of Willie Lincoln. Was it possible for his brother and Hulston to have taken that horse up to Gisborne and committed a fraud without Percy Capes knowing? Ho must have known, and so must the owner of Eulius. The evidence proved that all four people were together. The stake money and the proceeds from the sale were put through the banking account of the Produce Company operated on by Charles Capes. The whole scheme was hatched and planned in the shop of the Christchurch Produce Company, and they were all in it with the addition of Hulston. It was submitted that the case for the Crown was plain and unanswerable. MR HANLON'S ADDRESS. Mr Hanlon, for the defence, opened by urging the jury to dismiss from their minds anything that they had heard outside the Court; neither should they be influenced by the fact that another jury, in their presence, had brought in a verdict of guilty. The whole case turned on whether the men had. substituted the horse Willie Lincoln. Witnesses were asked to identify a horse from a photograph, but he asked them to remember what the photographer had said; if the camera was placed low' it would make a horse look long-legged nnd if the camera was placed in a high position the horse would appear short-legged. It all depended on the stand of the photographer. Were they satisfied to convict these men upon the evidence of photographs?. There was direct evidence by Fisken who had picked out the horse Willie Lincoln at Dunedin—but always they had to remember that this was done in the presence of the detective,wdio .wasworking up the case. It was not a casual visit by Fisken, and it may have been that by this time the fact had leaked out that Willie Lincoln was suspected. The. only other direct evidence was that of Bennett. There was no question about it that he had changed his front; he said, pne thing in the Court below and another thing during the trial. How f Ar his evidence varied was immaterial but there was no doubt about it that Bennett wished to make out that he did not have any suspicion at the time, and he gave the impression that it was after he had driven both horses that he had made up his mind. But he had driven the two horses before his evidence in the Court belowr and he had not made up his mind then. Fisken and Bennett were the only two witnesses giving direct testimony and more flimsy evidence could not be put up in such a serious trial. THE PHOTOGRAPHS. Counsel referred again to the photographs and urged that a horse could not be identified by such means. It had been urged that because Percy C apes was the owner of the horse he must have been involved ; that was an extravagant-claim. It must he shown that he took part in the affair. Were there any of his actions which were inconsistent with his innocence? Jt was true that, the cheques had been paid into Capes’s account but this did not prove anything. They knew that he was the owner of the horse but immediately they went beyond that thev were thwarted. There was not a scrap of endence to justify the jury in convicting him. There was also another accused who it was contended was in a different position, and Mr Thomas would deal with the case. DID TUCKER CONSPIRE? Addressing the jury on behalf of the accused luciter. ounsel said the onesturn lor decision was whether Tucker > a ,>arfcy to a . conspiracy—if there h«ul t oon one Actually there was no evidene at all against him. He was ® a , Ul l er > was said he transpired two-thirds ol lus interest to Hulston. lhat was hardly a fair wav to put it as they were not part owners Hulston was the lessee, and the rent winch Hulston paid to Tinker was one-third of the stakes. Tucker had no control over the horse. With regard to the cheque being paid through Capes s account it had to be borne “in mind that the cheque was crossed and had to be put through a banking account. & HIS HONOR SUMS UP. His Honor said tlie evidence bad Wn largely very simple, whirl, re.l- - it unnecessary to make any de,(tailed reference to it. The question

on which they must be satisfied was that the horse Eulius did not run'; if he did not then somebody .must have substituted some other horse, whether it was \\ illie Lincoln or not. If there was substitution that would be a fraudulent pretence. If they found that fact their duty then would be to find out who did it. The evidence about the identity of the horse did not depend on the photographs. There were three witnesses who saw the horse which won the race: Fisken, Blake and Bennett. They had been asked to disregard the evidence of Bennett, and if the case depended on his evidence it would be unsafe to come to a conclusion on it, because he had not given quite such definite evidence in the lower Court. However, the case did not depend on the evidence of Bennett. There was Fisken, and although he had been questioned by Mr Hanlon about certain aspects, the result had not been to throw any doubt upon the honour of Fisken, or on bis credibility. If the jury thought that it did to that extent they would discount his evidence.

Counsel had very ingeniously and quite properly endeavoured to~ show that they could not rely on the photographs. 1 hey had seen the horses and would be in a position to understand the evidence and to apply it to the photographs. If they had some doubt about the identification of Willie Lincoln, but bad no doubt that Eulius dul not run, then that fact was all they had to find in order to establish the case for the Crown.

If they accepted the uncontradicted evidence of the witnesses as to the substitution of W illie Lincoln or some other horse the question of whether thr.y found accused guilty of conspiracy would depend on whether or not they round two or more of the accused acting in concert. Jt had been urged that Percy Capes was not in the scheme. The evidence was that he had the lease, and therefore the compiete control of Willie Lincoln He was a brother of one of the other accused, but of course no suspicion of crime could be attached to a man because be was u brother of an accused. or a guilty person. It had to ■ f lT1 i ' ]ll nl ' that he was not identified as having any other connec tion with the facts than that he was the oner for the time being of Willie Lincoln, that the horse ran in the race, and there was no explanation of now he cam© to run.

Tucker, who had leased Eulius to Hulston, was not identified at nnv stage ot the transaction ; lie worked m the shop owned by C’apes's and also where Hulston was found frequently It was for the jury to say if there was sufficient evidence against Tucker to justify them in bringing a verdict against the accused. Thev ought t > consider that somewhat carefully. In order to prove the complicity of Tucker they had to be satisfied that he was really in the swim. There was no explanation, however, of the horse came to be sold and a complete title given by Tucker while there was stili a lease to Hulston. which had not expired. Mr Donnelly said there was a reAfter perusing the file his Honor said that apparently the lease to Hulston had been cancelled eight days before the race was run. and therefore the horse was back in the complete control of Tucker. That made In's case no better than that of Percy Canes Mr Thomas said his client had not signed the document. There was nothing to connect him with it. Therefore he asked his Honor to direct the jury on this question. His Honor agreed with Mr Thomas. He said the document was apparently in the handwriting of Hulston and there was nothing to show that Tucker The jury *ctired' at 1.25 p.m.