SUPREME COURT.

Wellington Independent, Volume XV, Issue 1393, 30 December 1859, Page 7 (Supplement)

SUPREME COURT.

December.l, 1859. Tiir usual quarterly, sittings ofthe above Court for tbe despatch of criminal business was held as above. The calendar on this occasion was, although light, veiy serious in its nature, including as it did an indictment for the capital offence of murder, as also one for assault with intent, &o. His Honor the resident Puisne Judge> Mr. Jos'i ice Johnston, presided. After the Court had been opened with the usual formalities, the following gentlemen were sworn on the Grand Jury, viz*—A. Ludlam, Esq., (Foreman,) George Hunter, T. Kebbell J. G. Kinross, N. W. Levin, W. S. Loxley, W. Lyon, J. May, G. Moore, Cv J. Pharazyn, W. B. Rhodes, C. W. Schultze, J. Smith, R. Stokes, W. W. Taylor, W. Tumbull-, J*. H. Wallace, and E. J. Wakefield* Esquires. His Honor then proceeded to deliver the following very able charge to the Grand Jury. Gentlemek or the Gband Junir.— Twolvo months having elapsed since I first took my seat in this Court, I naturally look back at the proceedings of tho year and try to ascertain their not results; and if I do not find in them much ground for Congratulating the province, I can at all events discern in tho retrospect some reason for hoping thai", the administration of criminal Justice will occupy hereafter a due share of the attention and care of the public and tho government, and be placed on a footing in some rospocts more satisfactory than that in which it stands at present. • . . ~ * T. I find that to tho 4 quarterly sittings, at which I have already presidod in this province,:?? pe*" 9o ?? have been committed or held to bail, of whom j5» were Europeans and three Natives; and of those 32, 5 appear twice in the Quarterly Calendar, 3 of them having been tried Wice, and the cases P* two postponed from one quarter to the next. Against 8 of the 32 persons so committed.no (nu was presented, and tho bills against 4 were ignored hir r.he OUnd Jury; so thattho number of persons actually tried was 25. The number of cases lor trial was 31. Of the 25 persons actually tried, 14 were found guilty and sentenced, 3 of them twice over, and verdicts of not guilty (either aftoi' trou on the merits, or on account of no evidence being offered), were returned in the cases of 11 persora. Prosecutions of personß Committed for trial or ne.u to bail, havu broken down through easily<*™ ™oie faults in the prosecution attributable to.want oj system in tho preparatory proceedings, non-'irr , of witnesses, 0 ; mistakes in the cases, and against 10 persons, nf murder, -i cases of robbery •*.h' plica-ting 5 persons, 2 cases of beiug natives, and ?, cases against 2 persons o accessories before tho fact to felonious —f JOVO . I fear that the Committals «£ E«™«^ B ' not been fewer in proportion $ . lation, than the average w whilo the circumstances of *« polony wo™ rally induce one to expect much less than tne glish average of crime. jHoreovei, I tea.

~"~A\ mint of trifling offences ooi/imitted in v/hich aro never prosecuted, and th * B * wm" i'ning unpunished, may have veiy iienoui* h ? vtoSomom iae oortoln porttorw ofthe com tendency fltat istics, lioWeVor, are to be ml! " j ' * ,„,*.* c-i-eat caution mid care, before any ippkedatwitlyeatc S7 A addition to the crime of the v„« /.Iforded by tho cases of escape from tbe Te 'tnn-akh.dorofrenc 0 to which 1 trust there is . S less temptation than there was formerly, and -V.T-.1, T hoDO may become speedily extinct. In „ X of ! matters connected with the prison, I am rdad to hear that a system of about- withn. the vallq of tho prison has been adopted, which rosult-i ii, tho Pict that tho hard labour prisoners are now oarning enough to pay for their rations instead of mssins their time whon m prison as formerly, in the most pernicious idleness. This, is a gmtilyi.,g mark of progress in tho right direction. Bills wi 1 be ...wonted to you in five cases four of which will, probably, give you very little trouble. A •case against a soldier named Cookram for stealing a cold watch, is a common case ot recent posses- ' sion' * case against a woman named Monaghaii for larceny from the person, is one of a disgusting kind too common in large towns at home, but I ■hope' not yet common here. Then there is a charge against a person named Salmon, the mate of a vessel called the " Eclipse," for stealing a pair ■of oars left in a boat by persons who had borrowed thoin from the owner; and traced to the " Eclipse" and there found. It appears that_ on the night when tho oars were missed, the prisoner brought a pair of additional oars to his boat before leaving tbo shore, and put them on board the " Eclipse,' ■bo that there in strong circumstantial, if not direct, Widened of his having committed tho larceny. Next comas a case against a man named Kidd, tor assaulting a young woman of the name of Louisa Bright, with intent to ravish her. If evidence be given from which it may he fairly infoiTCd that, the acts which he did were done with the intention of possessing himself of the person ofthe girl by force, eVon if she offered all the re■uistance in her power, you Will find a bill for the aggravated offence; but if you should be satisfied that be did not intend to proceed to further violence if she resisted, then you m.iy ignore the bill for the assault with intent, and find a true bill for an indecent or common assault, if the bill contain 'appropriate counts. There is, however, evidence •oi - his having endeavoured to stop her' mouth with a handkerchief in such a manner as to shew, ulong with her screaming, that 'she Was resisting, and that he \vas prepared to use violence if neeessaiV to accomplish his purpose, and is therefore guilty of the graver offence. One case remains; but that one, I regret to say, is of the very gravest character known to the law. it is the case of two persons, named John Straker •and Charles Straker, the Captain and Chief Mate of a vessel recently arrived from England, who'are | .•charged, with the wilful murder, on tho high ' "seas, of a youth named Francis Muir, an appren-] tice on board the vessel. The offence of riiurder—as you probably know W9 l1—(iCmSi'sts in unlawfully killing any one, with malic* aforethought either oXpress.or implied by law—if the person injured (lie within a year and a ■day of the time of receiving the injury. T;ho killing which must be proved in order to constitute this great crime, need not be by a blow, a/stroke, or wound, or fifty other act of violence, it he cau *ed by a direct act of tho .iceuscd. JWhe following are some illustrations: —Laying poison for a person, exposing a sick mtn to the, Scold, leaving a child covered by leaves in an "orchard where a kite struck it and killed it, put■ting a/ child in a hog stye where it was de vourijd, the conveying by parish officers of a poor wM from parish to parish so that it died from vant.of Care and sustenance—forcing a person in Gaol ih'to the company of a person having small - pox'whereby the prisoner caught the disease and ■died, providing insufficiently for a prisoner, illtrcating apprentices ho that- the.y died directly from -such treatment, or from debility consequent upon ; the treatments-all these are cases which have "been held to' be cases of unlawful killing, and to amount to"] murder or manslaughter according ■to their other circumstances. Nor is .the character of the Act affected by the 'consideration that- the person on. whom it is inflicted was in such a state of body that without the doing of the act complained of, he must have 'died shortly -afterwards. To accelerate the death 'of a p-iraon suffering under a mortal disease by an •unlawful act is equally culpable in the eye of the •law as to kill a healthy and strong person who might have lived long. lnthe next place, to make the killing murder it must be done with malice cither express or implied : and the law presumes that every voluntary act which causes death is done with malice, till ft ■be made to appear that it was justifiable, excusable, or done under such circumstances of allevia■'tion as will reduce it to manslaughter. But the use of the word malice in this definition is not a little apt to mislead, inasmuch as the malice which is necessary to constitute murder is not •necessarily thatwhich in the ordinary language ■oT modern times is'called malice. In 'this definition the word does not n imply any grudge, hatred or ill will to any person or persons, nor does it necessarily include any deliberate in- : ttntion to cause death. Of Course where these two incidents occur, there is the clearest case of expresß malice. But tbe malice, in the legalsense, which makes tho killing murder, nbetl not go ■nearly so far as that. It consists in a mischievous 'disposition, the condition of n. wicked depraved ■and malignant heart, generally, which may be inferred from a person acting with apparent recklessness of consequences. Take a. familiar illustration. If a man with a loaded gun in his hand— knowing it to be loaded, walked towards a crowd of persons, not one of whom he has ever seen or 'heard of before, and against none of whom he oan pbssiblv have any grudge or ill will, and ho voluntarily discharges his gun among them cither to sec what the effect would be, or without any definite motive, and he kills some person in the crowd, the act is just as much murder in point of law and common sense, as if by secret Waylaying and artful planning be had contrived and brought io pass the death pf some one whom ho had loner hated and tried to kill, and against whom he boro •and expressed tho bitterest malice in the popular senße of Are word; beca.ii.se the reckle3snoss of the act showed'the perpetrator to be of an ovil, mischevous disposition. On the other hand, even if tho act whioh caused ■death was done with an intention to kill and there was a foeling pf temporary ill will to the individual, yet if it was done on sudden provocation, or in tho of passion, not preconceived and voluntarily engendered, the law, from tenderness towards the frailty of human nature, does not imply malice, but roducea the quality of the crime to manslaughter. With regard to tixa circumstances of the caa« which is to be-snbmitted for yoflr consideration, yon may take it from me as law, that if a person force another to do, or do to another, an act which in ita nature ib likely to Cause death, or which is likely to eauce or accelerate the death of theother perron, reference being made to the state and condition in>hich ho is at the time—such state-and condition being known, to. such first mentioned person;—and death actually ensue; thnt person is guilty Of muhler although he may not have had any express ill-wiUtowords the sufferer, or have actually contemplated or.wished for his death A master has aright to cdrrcct.his apprentice with moderation, and in a'manner and measure commensurate with his "offence ; and I know ol no difleronce m principle between an apprentice at sea he is xZ2^Ti if ho excceJ * moderation, Sat hay ,S /"* or, in. such manner or t he iaMi Xir S ? mo -^ i "S'•"-<»«» to the mas-' £ Sit?of t der y '° P ' oduco *»*. h9 Nearly ■

Keeping these remarks in mind you will antdv them to the facts established before, by the wit nesses in the case of which, ai-eoi-dtii-- to t \>* depositions, the following appears to he "the o ut- " The, deceased, Kra'.ici* Muir, at the eim.me.ieo. ment of tins voyag., teemed v, he j„ ~„„.• | lealt i . body and sensible in i„i m |; hut Im was ,*l,- w in his movements, and afterwards, uf, nil ev-nts very dirty in his person. From an early period'if tin* voyage the Captain anil Chief Mute seem to have' treated bun with more strictness than other boys I in the same position-probably on account of His exhibiting symptoms of uiifii-ii.jss for the duties of his vocation. The ship H n\]-,l „„ Hie 2,ltl>' of May, ol this year, from Wool.vieh, „„d the first date .iter that to which your attention will be wluo.i day, Muir, W no was in the Chief Mice's Watch, was ordered hy him to go „,, the mizen rigging, to do some necessary act at the gaff: and as he did not move quickly, the Mate" followed him up: immediately after Muir fell, for all that appears on tho. depositions, accidental's', from the gall to the p00,,, breaking a hen cop in his fall, and injuring his shoulder. The Captain seemed to have paid him some attention on that occasion, and he remained below for 3 or 4 days • but it will appear that after this time, and while the boy seemed still suffering from his shoulder he experienced harsher treatment at the hands both of the Captain and Mate than before tho accident, of which several particulars will appear. Sometime after this : as it would appear, towards the end of July—a representation having been made to the Captain that the boy was lousy, ho was removed from the half-deck where his and the other hoy's berths were, and ordered by tho Captain to "sleep in tha longboat. Por three weeks Muir seems to have slept, a:id lived in the longboat. Tbe weather was then very severe. Muir had only a w<*t bed to lie on, nnd a thin rug to cover bim, and there Was water in the boat. There was another b:.-at over it, but it was not quite covered, and Muir complained ofgreat suffering from cold, and a >- paired numbed in the mornings, and he asked leave of the Captain more than once to go below, but in vain. During the time when he was living in the longboat, both Captain and Mate wc-e guilty of acts of .ill uaige—kicking and beating tlie boy from time to time. The next important date is Sunday, the I4ih August. On tho nightof thttl3th,Muirhad gone into the half-deck without leave, and slept forfour hours on the wot sails, and on the Sunday morning ii; C> a.m., the Mate ordered him on deck, sent him aft to the poop, without giving him time to dreru, and lie having iwtiiiug on but a wet shirt an I pair of trousers, and then caused a rope to be fastened round his wrists and a rope round bis waist arid caused him to be triced up to tlnlea inizati rigging with histoesjust touching the deck. At tiiis lime it was blowing very hard, and was very cold, and Muir was allowed" to remain in this position till 20 miiiuli'S to 8 (two and a half hours; wiin'i tho mate ordered him to be taken down, ati.l ordered him to go and pump the shin, saying that he would have allowed him to remain till noon but for that. lie fell down benumbed ; but was obliged to work during the forenoon among wet ropes and both Captain and Mate drove him up the rigging. It was blowing a hard gale and slciitiiig. In the afteriio:jn Muir was clinging to the spars while he attempted to coil some rope and on tbo mate speaking to him he laughed— and seemed to the sa'dors to have become foolish. The Mate then ordered Muir below, and lie had to be insisted. Three days afterwards, on "Wednesday, the 17th August, came the climax. On the forenoon of next day, the Captain went down tbe aft deck, mil ordered Muir, who was lying on tbe wet sails, to get up and wash himself. The weather was very severe, and 'Muir asked if he might wash below. The Captain said no, that if be did not get up he would have him dragged up with a rope. Muir went on deck, apparently suffering; the Captain went aft. and Muir went back again. In 111 tuiriuies. the Captain returned, went and dragged Muir off the nails, and kicked him on deok; ordered a bucket of water, and gave him a piece of canvas to scrub himself, m-.ide him pull oil' his shirt, and afterwards his trousers. It was snowing at the time. He washed, but not to the Captain's liking, arid be was told to. wash again. The chief niirc was present during this time. Tiic proceeding secm.s to haveoc-ciipiedsometi.no, while according to ono witness, Muir was sinking down inch by inch. At last, he fell down naked and benumbc.l and crawled to the galley fire, where he lay foaming at tlie mouth and nose. The mate told him to get up, spoke harshly, and threatened to knock the top of a water cask out and put him it. it. 110 was then carried to the half deck and seemed insensible. The conk asked the mate if he might take him to the g.iliey, aid the mate made use of an expression, which I do not wish to repeat st present. He was then taken to the galley, and appeared out of his mind, poultices were npplia 1 and other steps taken, but without effect; and ha lingered on shewing symptoms of delirium, but never again speaking nor recovering the use of his limbs, till Monday, the 22nd August, (four day's after) when he died. The first question for you on these facts is whether tbe boy died a natural death—a doath in the . ordinary course of nature—and the next, if he did j not, -whether his death was caused or accelerated . by ill treatment. Then if he died from ill trent- ; ment, was the ill treatment the act of the accused or either of them'? If you think the death was . causod by the whole series of ill treatment tho boy 1 recoived from tho prisoners then they are respon- ] sfble for it; or if you think that tbe death was 1 hfitnediatuly caused or hastened by the washing t aftd surrounding circumstances on the 17th Au- ] gust,—that it wits not done voluntarily by Muir, < but by the coercion and authority of the prisoners j or either of. thorn, —then the prisoners, or ono of \ them must be responsible. And next, if you'think that the party or parties responsible, acted quite ; recklessly of consequences in the bad treatment of the boy which caused deatli, —even if they had no intention of causing bia death, —or if you think the acts Were done evon by way of correction, but Wore such as milst probably cause or hasten death to a person in the condition in wliich the accused must have known the boy then to be, it will bo your duty to find a bill for wilful murder. •It is competent, for you, if the facta should seem to warrant yon—to find a- bill for manslaughter; but t cannot advise you to adopt that course, if it be only a question of doubt with you whether the case amounts to murder.as I have defined it, or to manslaughter; unless the evidence clearly satisfies you not only that the conduct of the accused was not indicative of any ill-will to tho boy—but moreover, that a reasonably careful man having the same knowledge of Muir's condition, that the accused had, could not have nupposed that tho conduct which resulted in hir, death, could either oautse or hasten his death or be seriously injurious to him, I advise you to find the bill tor the gravor offence; leaving it for the Petty Jury under the diroction of tho Court (Whose duty it is to decide on the question of implied malico), upon a more full investigation of all tho circumstances at the trial to say, whether the crime can be reduced to manslaughter. You are very well aware that the duty of a Grand Jury is, not minutely to weigh the evidenoe in ordor to ascertain the exact quality of the crime or tho amountofprobabilityof conviction, but only to take care that persons shall not bo put upon there trial unless theirbe a fair prinui facie case to support tho charge brought against ; 'them. Possibly, there may be some difficulty for the Court in applying tho law to the circumstances in present case; but probably there will be facts enough before you, to nuke you feel it your duty , to find tho whole bill, upon the principles which I have brought under your consideration. Justice j might suffer by a l-estricl-ion of tho charge to the , minor offence; it cannot suffer by the finding 01, • the whole, bill; unless indeed it be clear that there t is no pretence for preferring the more serious , charge—and that it would be oppressive and ; vexatious to do so, wliieh certainly could not be 1

YOU lb'I"??' 'i-'r l '" wlllle « M •""•Ml"', before Jnl.,7';/l!r U m °?i Bii , nute 'y i,lto tlle obxuinI, 'i™;,. ~, u ,7 v 1 ' eettU »« il I" ««t only one of go-eat i .ttt.ee: but it my prevent considerable dill*. I, ,1*" • T ct t0 thii Wlioation of the la. to the circumstances. You will not allow Z , rf o n , !" > ~' e J ",< l. i e, e d h y the statement of he outline ol facts which 1 have considered it necessary to,nuke in order to explain the law. Of course ,f these facts are not fully made out you lmve to see how far the observations as the law can be applied to the facts established before

Alter winch the Grand Jury retired, and i„ the course of the day returned with true hills hi every ease presented to their consideration, 'ihe nutiies ol tlie petty jurymen were then called over, when wo parties were fined 20s. each for their non-at-tendance.