SUPREME COURT.

Wellington Independent, Volume XVI, Issue 1704, 4 March 1862, Page 3

SUPREME COURT.

CRIMINAL SITTINGS

(Before His Honor MA Justice Johnston .)

Saturday, March 1, 1862

The Criminal Sittings of the Supreme Court were held on Saturday last, in the Provincial Government Buildings. His Honor Mr. Justice Johnston took his seat upon the Bench at 10 o'clock precisely. The usual preliminaries having been gone through, the following gentlemen were empannelled for the Grand Jury, viz. — W. M. BanDatyne, J. H. Bethuu'e, W. Bishop, W. Buwler, C. R Carter, (x. Crawford, J. Drauslield, J. G. Holdsworth, John Kebbell, W. S. Loxley, W. B. D. Mantell, E- Pearce, W. It. E. Brown, E. Battersbec, J. H. Wallace, James Carter, W. Hickson, Esquires, A. Lndlam, Esq. foreman. His Honor the Judge addressed the Jury to the following eifeet. He was not aware of any matter connected with the administration of justice in the district, or suggested by the calendar before him which required special comment.

He had reason to believe that some measure or measures would be mooted at an early period in the Legislature, for (he purpose of introducing a more ' satisfactory system of prosecuting offenders than at presented existed. At present, by the law of New Zealand, as by the law of England, the person bound over by the Magistrates to prosecute, is the only person generally responsible for the conduct of the prosecution. For some years past, provincial solicitors had in fact conducted prosecutions in Court, but it appeared— that in that district at all events, the provincial solicitors, though they appeared in Court as counsel for the prosecution, repudiated all liability for the conduct of prosecutions in the earlier stages — which was a matter of much more importance than the conduct of the case in Court. The system of private prosecution —the only oue now existing 1 bj law must be much less convenient and effective in a young colony like this where the population was so scattered and other difficulties existed, than in England ; and in England itself the propriety of a change of system had recently been much considered.

It was not improbable that as an incidental measure, the propriety of abolishing or retaining the Grand Jury as a part of the system might be mooted ; and he ((.he Judge) thought it very desiiable that the members of the Grand Jury should take this subject into their consideration, and either as Legislators, or by the expression of individual or collective opinion in a constitutional manner, should use their influence on tbe Legislature with respect to the matter. He (the Judge) could not refrain from expies s'mg Ins hope that an institution which had accompanied the developement of English freedom from the early days when it was in its rude Saxon cradle up to its majestic maturity in modern times, would not rashly be got rid of. In his opinion — an opinion which had gained strength during his experience in the Colony — the intervention of a Grand Jury in a young colony like this was of much more imports nee and utility than in England, where a

complicated but complete system of adminis tratiou afforded effectual practical checks against those evils and mischiefs which it wasthe object of a Grand Jury to prevent. The principal of those mischiefs were, on the one side, the exposing of innocent persons to the degradation of a public trial through spite, jea'ousy, or mistake, and on the other side (an evil much more likely to arise in a young community) the danger that crimes should go unprosecuted; through the carelessnes, caprice, or mistake of individual officials. There wore other incidental advantages in the meeting together of Grand Juries to which he had had occasion to refer ou previous occasions. He trusted that if some system of public prosecution should be established, the Grand Jury would, at all event?, be preserved till experience had proved the new system to be so efficacious and trustworthy as to render that venerable and time honored institution practically and theoretically useless. His Honor then adverted to the cases iv the calendar,' and first to a case of a charge made by a native of Wahu, (one of the Sandwich Islands), against another native of the same place, for wounding with intent to murder or do grievous bodily harm. He explained the circumstances under which a person attacked by another would be justified in using a deadly weapon which he happened to have in his hand, and said that any excess either in the nature of weapon used, or the violence in the use of it — beyond what was necessary for the purposes of self-defence, was not justified by law. He alluded to the circumstances of a charge made against a Maori for shooting at his brother with intent to murder him.

He said they would fiud there had been a quarrel between the prosecutor and the accused, and that the day after, the accused fired a gun at bis brother without hitting him, then fired again and shot him through the baud and one thigh, the bullet lodging in the other thigh. It would bo for the Jury to consider whether there was not ample prima facie evidence of a preconceived intention to kill and murder. But at all events a mau must be presumed to entertain the intention, to <io that which was the probable consequence of his act. His Honor alluded to a case against a man named Gorman, charged under circumstances of the most disgusting- character with an offence perpetrated ou a young girl between 10 and 12 years of age.

By the law of England and New Zealand a girl under 10 years of age was deemed incapable of consenting to sexual intercourse, and it was a felony of the highest class to have such intercourse, even if the girl consented, and when the girl had passed 10 years, but had not attained 12 years, her consent did not justify a man in profiting by it, but he would be guilty of a misdemeanour by statute in having connexion with her, and, as by the common law it was a misdemeanour to attempt to commit a statutory misdemeanour— if they (the Grand Jury) could believe the girl at all, they would consider whether at all events there was not evidence that the accused had made the attempt in question.

After a few words from His Honor regarding two other cases in the calendar.

The Grand Jury retired, and after a shortabsenco returned with true bills against Patrick Daily, and William Darks, for Larceny, and James Graham, for Misdemeanor,

The Petty Jury were then called. William Tonks, jun., and Enoch Tonks were excused in consequence of being at Otago. Adam Thomson was fined 20s. for not answering to his name when called. Larceny. Reg ina v. Patrick Daily, and William Darks. The prisoners were indicted for having, on tho 84th December, 1801, at Wanganui, stolen the sum of £4 from the person of James Osmond. Both prisoneis pleaded not guilty. The petty jury was then sworn. W. Taylor foreman.

Mr. Brandon conducted the prosecution. His Honor asked the prisoners if they had any counsel, and being answered in the negative, he euquired if they would wish to be defended by counsel, and vras answered in the affirmative, when Mr. Izard undertook to defend the prisoners'. Mr. Brandon then shortly stated the case to the Jury, ahd called the following witnesses : James Osmond, being sworn, deposed, I am a laborer and live at Wanganui. I know the prisoners at the bar, by being with them on the *4th December, in Dunleavy's public house; at Wanganui. I had a five pound note on that day, which I got Dunleavy to change for me. He gave me four one pound notes, which I put in my trousers pocket. Two days afterwards I missed them ; 1 never, to my knowledge, took them out of my pocket.

cross-examined by Mr. Izard.— There was some drinking going on in the public house, 1 was drink, ing rather too freely ; I treated the prisoners and others, I was intoxicated, so that I did not know what I did ; 1 found out that I had lost my money on the 2Gth December, two days afterwards, and that is all 1 know about it ; while I was playing about the 'tap room, my money fell out of my pocket on the floor, and a soldier picked it up, and gave it to me ; I cannot say when I was last conscious ; I am not sure whether it was three or four pounds that I put in my pocket ; I gave the prisoner Darks a one pound note to take Bs. out for a pair of boots ; two days afterwards, I received change from Dunleavy lor two "pounds; Dunleavy gave me Bs. out of the note he had received from me, and 12s. which he had stopped from the note given to Darks. Re-examined by Mr Brandon,— l had some conversation with prisoners afterwards; it was on. the 23th December; they were not together ; Daily was in confinement; I went up to the Barracks, and asked Daily about my money ; he said that he knew nothing about it, that he had never seen mo; I saw Darks the same day, in Wanganui, and talked to him ; he told me that ho had put rum in my beer. .

By Mr. Izard,— There was no person present when Darks spoke to me about the beer.

William Stuaut, deposed, I am a laborer, and live at Wanganui. 1 know tho prisoners by sight; I saw. both the prisoners and Osmond on the 24th December, iv Dunleavy's public honso in Wanganui. They were sometimes in the bar, and sometimes in the tap room ; I was sometimes in the bar and sometimes in the tap room. I saw Osmond change a five pound note with Dunleavy. I saw Dunleavy give him notes in exchange, but 1 do not know the number of them. I was standing at the bar, about three yards from Daily; I saw Daily put his hand into Osmond's trouseru pocket, and when he took it out, I saw notes in his hand. I ran after him, and he passed the notes to Darks. I cannot say whether he passed the whole or not. I did not overtake him ; he passed out of ono door, and came in at another. I accused Darks of receiving some of the money ; he said he had not. Osmond was intoxicated at tho time : ho was standing ; ho made no alarm. Darks pulled off his jacket to fight me for accusing him, and said all the money ,he had upon him was one pound. Daily came in about five or ten minutes afterwards. Darks said that all he had was £l, and offered it to my Mrs., and said that if he had stolen it, it was, for her to take it. He said that he had not stolen it. The same night Darks said that he had got a i'l note from Osmond, to take Bs. out of it for a pair of boots.

- Cross-examined by Mr. Izard,— Tlie prisoner Daily was standing about two or three yards from me : Osmond was standing at the time about

the same distance from me, Osmond was standing with his right side towards me. By the Court, — I was standing in such a position as to be able to .see the notes abstracted from Osmond's pocket. By Mr. Izard, — I knew they were notes by the look of them ; I saw Osmoud put them into his pockets a few minutes before ; Daily came back the same evening; the men were not searched that evening ; the money was not mine, and I did not think I had any right to search him, or give him in charge, as Osmond was there. Margaret Stuaivt, deposed, IliveatWanganui, and am the wife of the last witness. I know the prisoners at tho bar, and I know Osmond. I saw them together on the 24th December last, at Dunleavy's public house, Wanganui. I saw Daily take something out of Osmond's trousers pocket, it was either two or three pounds. I saw some notes in Daily's hand ; he handed some to Darks, but I did not see whether they were the whole of them or not. Daily ran out of the back door, my husband ran after him. Darks remained in the house ; he had a pound note iv his hand, afod said that Osmond had given it to him to take Ss. out for a pair of boots.

Cross-examined by Mr. Izard, — Osmond was intoxicated : this prisoners were not drunk, but were the worse for liquor ; Darks "remained in the house for an hour afterwards, ho made no attempt to escape ; Daily came back some time afterwards, he came iv at the front door ; he remained there some time, it might be an hour ; I was standing at the side of the door when 1 saw them take the money, the prisoners were standing before me.

Mr. Izavd then addressed the jury at some length on behalf of the prisoners. —

His Honor summed up, going careftdly over the evidence, and expounding the law of the case.

The foreman of the jury having expressed a doubt as to whether Mr. and Mrs. Stuart were sober' at the time, William Stuart was re-called, and stated, that he was sober at the time, having drunk only three or four glasses of ale, and was quite capable of looking after his own business; his wife wan also sober.

The jury then retired, and after an absence of ten minutes or a quarter of an hour, returned a verdict of not guilty. The prisoners were then discharged out of custody. The Grand Jury having returned a true bill against Hemi Whihana, an aboriginal native, for wounding with intent to murder his brother ; and ignored the bill against Haimona Pita, for wounding with intent to murder, His Honor discharged them with the thanks of the Colony and Queen. The Court then adjourned for three-quarters of an hour. Regina v. Haimona Pita. The prisoner was brought up, and His Honor addressed him at some length, explaining the proceedings that had taken place, which were interpreted to the prisoner by Mr. Baker. His Honor said :— The Grand Jury had investigated his case, and had probably thought that he had not used more force than was necessary to defend himself. If a man was attacked with the fists, he was allowed by the law to use his fists or legs in selfdefence ; but he was not allowed to go and get a tomahawk, or other deadly weapon, and use it for the purposes of retaliation. The law does not admit of any person using more violence than is absolutely necessary for self-defence. If a man i s injured, the law provides a remedy ; but does ! not allow particular persons to take the law into their own hands. The jury, no doubt, had taken a favourable view of his case, because he had used ' very little violence. Hia Honor then gave the prisoner some good wholesome advice, and warned him of the evil habits of drinking intoxicating I liquors, as they were the greatest incentives to Ci ime.

The prisoner was then discharged from custody. His Honor said, that lie thought it necessary thus publicly, to caution publicans' against supplying the Maories with intoxicating drinks, as by so doing they were guilty of an infringement of the law, and laid themselves open to be heavily fined; Through some publicans supplying these persons with liquor, a very grave offence had nearly been committed, being no less than that of murder. If publicans persisted in supplying natives with liquor, and any case was brought before the Magistrates, he thought the offence would be suflicient to take away his license.

ASSAULT WITH INTENT. Regina v. Thomas Gorman. The prisoner was indicted for having, on the 15th December last, committed an assault upon one Martha Wagg, a girl under 12 years of age, with intent to have unlawful carnal connexion with her.

Mr. Brandon conducted the prosecution, the prisoner was undefended.

Mr. Buandon stated the case to the jury, and called the following witnesses : — Martha Wagg deposed,— l live at the Hutt, my father's name is Wagg. I know the prisoner at the bar. I saw him one Sunday afternoon in December. I have seen him on another Sunday afternoon Two days before I went before the Magistrate, I saw the prisoner on a Sunday aiternoon. I saw the prisoner between Brown's and the Fern Ground. He had some conversation with me. I had cleaned me. I told Susan Hedge to go up the road. I went up the road, till 1 saw Susan Hedge. As I was going up, I saw Gorman. Susan was not with me, she was on a hit farther; when I met him, he said " Ain't you going to walk along with me,""and I said " No." I went on to Susan Hedge, I called into' a person's house, and took a little girl up the roadj went on further; I came back, and took the little girl home again ; I went into another person's house, and had some tea, and then went, towards home. I found Gorman sitting on the ! grass on the road ; Gorman said, " Ain't you going along with me," and I said, "No." He then said, -'I have got some lollies for you if will come along with me." I then walked on the road a little way, and I began to run, and he ran after me. When I got a goodish way, he j got hold of me,' he offered me a shilling ; I was a goodish way off when ho offered it to me ; he gave me the shilling ; it was then that I ran away ; he caught me ; he asked me if I would go into the bush, and I said no. He then caught hold of me round the waist with his two hands. ! I was trying to get away, and he put his hand over my mouth. He took one of his hands from my waist, and put it over my mouth. He wanted me to go into the bush. I would not go. He said if I would go into the bush a little further, he would let me go just now. I tried to get away, and began to cry. He carried me into the bush, about twenty feet from the road. He then asked me to lie down, and I would not. He then laid me down on the ground, I tried to scream ; he then put a handkerchief over my mouth. He said when I was screaming, everybody will hear me, I said I don't care. 1 said if" he did not let let me alone, he would be put in choky. [This portion of the evidence is unfit for publication. The prisoner effected his purpose, but did not commit the capital offence.] He was lying down by the side of me a goodish while ; I wanted to straighten my hair, but he would not lot me do it. He gave me two shillings, 1 took it.

By the Court,— l got up, and straightened my hat, and saw Rouse, Pike, and Stevens; they came up just as I was straightening my hat ; they saw me first, I did not call out to them.

(The witness being unable to swear to a mark affixed to a certain affidavit, a constable was called, who proved the cross of the witness to affidavits taken before the Magistrates at the Upper Hutt.)

By the Court— ln the deposition taken at the Hutt, you say that you went to him for the shilling, to day you say that he came to you with it, —which is true ? Ho came a little way, and I went a little way; he put a hankerchief over my mouth,

Cross examined by the prisoner, — I had not conversed with you very often before ; X saw you in Brown's hay-field ; I brought you some grog j and beer to a hay-field ; I proffered to walk with you every Sunday for 2a. per week, but I did not mean to do it ; the nearest house to Brown's is Lawson's ; the first house I went into was Backets; I did ask you to lift me over the ditch; I did not ask you to put a handkerchief over my hat to keep the rain off; I saw Stevens and House first; Pike was about five yards off at' the time ; we wore about 20 feet from the road ; I was trying to get away from you at the time ; I said, now the men have seen us ; I said I would tell father; I did not tell father, I told Mrs. Brown on Monday; Mrs. Brown heard the two shillings jingling m my pocket, and wanted to know where I got the money ; I told my mother on Tuesday. By Mr. Brandon, — Prisoner asked me about marrying ; he said that he knew a girl about my age who had got married ; he asked my age, and I told him about 12 years. By the Court, — Prisoner asked me if I would not rather get married to him than stay at Brown's ; I told him that I would tell him on Saturday ; I don't recollect when it was that I asked Gormau to put the handkerchief over my hat.

Tno.MAS Wagg deposed, — I reside at the Hutt, and the little girl who has just been examined is my daughter. She was twelve years of age on the 12th of January last. We were married in 18±7, we had a son born in September, 1848, and Martha was born about eighteen months after the birth of the first child. 1 could give the correct dates, having them all dow n in my Bible, but all my papers were carried away in the great flood in 1858.

By the Court, — My wife is not here to-day ; she was confined on Monday morning last, and is not able to travel.

The wile's depositions were here put in, and read.

By the Prisoner, — I did not hear my wife give her evidence ; when I went to America in Ootober, 1849, my wife was then great with child. This child was born on the ]Oth January, 1850, and was twelve years old on the 10th January, 1562 ; I was not present before the Magistrates when my wife said that the child was born in 1549; I found out about this matter on Wednesday, I heard about it on Monday. My wife went up to Mr. Brown's on Tuesday; my daughter was living there at service : I enquired into the matter, and asked Rouse and Pike, and they confirmed the particulars.

By the Court — We got the warrant for prisoner's apprehension on Wednesday; we were stopping until Mr. Wardell came up, but as he did not comp, we went to Mr. Barton. I have four children ; i give them the best education I can ; there are no schools in the Upper Hutt now, Martha went to school before we left England, till she was about seven years of age. Charles House, deposed,— I reside at the Uppei Hutt, and am a sawyer. I know the prisoner at tho bar, and I also know a little girl named Martha Wagg. 1 was walking on Sunday afternoon, the 10th December, in company with two others along the Hutt road, when we heard a male and female talking in the bush, about half a chain from the road. We went to see who it was, and saw the prisoner and Martha Wagg. She began to cry, and said lie had been pulling her about, and bending her hat. The girl then went out to the road, and I followed. Gorman came out aftar me, and said, '• I suppose it will be a serious charge," and wanted me to go and see Wagg, and make it up. I said that the girl could speak for herself. You could not see them from the road, because of the tea-tree and fern. Prisoner first spoke to me about the charge. Cross-examined by the Prisoner, — I was in your company on Sunday afternoon, about two hours previous to the time I saw you ; there was no noise or struggling that I heard, Pike was not far off the road, he could not see you from tho road" ; Martha Wagg was standing up when I saw her first, she was ctying; she said that she would tell her father and mother.

By Mr. Brandon, — It was in tho afternoon; it was daylight.

W illiam Stevens deposed, — I live at the Hutt, and am a eawyer. I know Gorman, the prisoner at the bar, and Martha Wagg. I remember seeing them together one Sunday, before the charge was made. I was walking along the road in company with Charles Rouse and Edwin Pike. We heard the voices of two persons <fe went in to see who it was. We saw the prisonerandMartha Wagg. The prisoner had just got up, and Martha Wagg went into the road. Gorman said to Rouse in mv hearing " that he thought it would be a serious charge, and would he try and settle it." I saw Martha Wagg when we went in, she was just making a start out of the bush.

Cross-examined by the prisoner,— -I heard no scuffling. We could not hear the conversation, but could hear that it was civil. It was afterwards that I saw her crying. ■ Edwin Pike deposed, — I am a sawyer, and live at the Fern Ground, Upper Hutt. I know a little girl, named Martha Wag. On Sunday, the 15th December, I was on the road with Stevens and Rouse. Stevens said, " hold on ; there is a female's voice." The conversation was carried on in a gentle tone. We went into the bush, and I saw Martha Wagg standing,— she turned round and saw me, and said, " there now, that man has seen us." She said that she would tell her father and mother. She said that Gorman had taken her from the road, and stuffed a handkerchief in her mouth. Gorman said, — " Chaps, this will bo rather a serious case."

Cross-examined by the prisoner, — The girl dropped a sixpence." I called to her to come back, and pick it up, which she did, the girl's clothes appeared in a muffling condition, all tumbled like; your clothes were all right. Gorman addressed the jury at some length in his own defence.

His I-loNou then summed up, and explained the law bearing upon the case. The jury, after a short consultation, returned a verdict of guilty of the attempt. His Honor then addressed the prisoner in a most solemn manner, told him that he had been found guilty of a most abominable and unmanly offence ; that he had previously been convicted for robbery with violence, and sentenced to four years' imprisonment, and warned him to flee from his evil courses. The prisoner was then sentenced to two years' imprisonment with hard lahour. The Court was then adjourned until Monday at 10 o'clock. MONDAY, MARCH 3, 18G2. His Honor took his seat upon the bench this morning at ten o'clock precisely. The Petty Jury having been sworn, the following case was proceeded with, Hegina v Graham. Prisoner was indicted for having assaulted a police constable while in the execution of his duty on the 14th December, on Lambton-quay. Mr. Brandon conducted the prosecution, the prisoner was undefended. Mr. Brandon shortly stated the case to the jury, and called the following witnesses :, William Harris deposed, I am a corporal of police, I was on duty od the 14th December last, on Lambton-quay. I know the prisoner at the bar. The prisoner and four other soldiers were creating a disturbance outside -the Nelson Hotel on Lambton-quay, Major Dwyer was talking to the Bishop of Wellington, a clergyman, and a lady. He called mo over to go and fetch the picket. L went up as far as Clay Point, and mej. Major Dwyer's groom, and asked him if he would go to the barracks, as he was on horseback, he said he would. I went up then as far as the Union Bank. I stopped there until the picket came up. I gave information to the sergeant, the men had gone up the beach, and in different directions. Tlie sergeant of the picket

went down the beach, I followed immediately afterwards. T met corporal Finucane opposite the ' Commercial Hotel j before I came to them I saw j a picket taking Graham out of the Crown and , Anchor Tavern, Graham was in his shirt sleeves, I and had his shell jacket over his arm, he came , out of the Crcm n and Anchor Tavern with two soldiers, one on either side. The picket were all around him. The prisoner was in advance of the two men, the picket had not a hold of him ; he made a rush at me, and struck me on the side of the jaw with his shut fist. He met me, and made a straight blow at me. My jaw was sore for two or three days afterwards. I was on duty at the time of the assault.

By the Court, — He used some words, but I did not catch the words, as he immediately struck me, 1 had never spoken to the man before ; I cannot say whether he saw me when we were opposite the Nelson Hotel.

Michael Finuoane deposed, — On the J4th December, I wag a corporal of police. On that day 1 met Harris on Lambton-quay. He complained to me that there was a disturbance at the Nelson Hotel. While he was doing it, we met the picket about Clay Point. Some conversation took place. After meeting the picket we turned back, when we arrived at the Crown and Anchor, the piquet took Graham out of the Hotel. As he was being brought out into the road, he made a rush from the picket, and struck Harris in the face. Prisoner said to Harris, "you are the cause of my being taken by the picket." After the prisoner struck the blow, the picket secured him. They took him in charge, and conveyed him to the guard room. lam quite certain that the prisoner struck Harris in the face. This closed the case for the prosecution. The prisoner denied ever having struck Harris, and called the following witnesses for his defence.. j Thomas Fox, deposed — I am a private soldier lin the 2nd battalion of the 14th Regiment ; I was one of the men who went into the Crown and Anchor tavern to take prisoner into custody. He took off his jacket in the Crown and Anchor, and put it on again; we took him out into the road. He then took off his jacket again, and while doing so, his hands were loose. We were trying to pacify the prisoner, the policemen were standing close by. The prisoner made use of the words, •• 1 suppose it was you that got me taken by the picket ;" he then rushed at the policeman, and I rushed in between the prisoner and the policeman ; 1 did not see the prisoner strike the policeman.

By Mr. Brandon,— l did not see a blow struck. By the Court, — I did not see what he did with his hands, but I think he could not have struck Harris, as the blow must have fallen short.

By the Prisoner, — I did see you rush at Harris. Thomas Murray deposed, — 1 am a Sergeant in the 2nd battalion I4th Regiment. I was the serjeant of the picket that went after this man on the I4th December. I sent two men into the Crown and Anchor Tavern, they brought prisoner out into the road. He might have got loose. The picket was in tha rear of prisoner, 1 was in rear of the picket. From the position in which I was standing, I could not see the prisoner strike a blow.

Patrick Cox, deposed, — I am a private soldier ill the 2nd battalion 14th Regiment. I went into the Crown and Anchor Tavern on the 14th December, fetched the prisoner out, and gave him to the picket ; we had hold of him all the time.

By Mr. Brandon, — The prisoner did not strike the policeman.

By the Court, — The prisoner made a rush, but we prevented him from going ; I was frightened the prisoner would get loose, and did not hear what he said. X had hold of his left arm, fast bound with both my hands. Fox had hold of his right arm ; we never let him go. Harris was in front.

The witness was here cautioned by the Court, and Mr. Strang instructed to take down what ho said.

Crosd-examination continued. — Prisoner did strike at some one ; he did not strike Harris ; I do not know whom he struck at ; I did not see where his anna were; we were in the centre of the j-icket.

Thomas Fox, recalled,— By the Count— l had his left aim when we came into the road ; I let it go for him to put on his jacket ; Ido not think his other was loose ; he rushed at (he policeman, and I went between them, and pushed him off. His Honor then summed up, and the jury, after a short consultation, returned a verdict of guilty with a recommendation to mercy, as the prisoner was in liquor at the time.

His Honor was sorry that he could hot agree with the recommendation of the jury, on such a ground, and he must say that it would have no weight with the Court in mitigation of sentence. Drink was the greatest incentive to crime, and the majority of offences were committed while under its influence. A man was accountable for his own acts while in such a state, and the law considered it an aggravation of crime; unless a man was mad with drink, suffering under delirium tremens, when ho did not know what he was doing. Miciah Read, deposed— l am Warden of the Wellington Gaol, I know the prisoner at the bar, I have had him three times in custody for assault. When sober he is a very quiet well behaved man.

William Johnston Edwards, deposed — I am a Lientenant in the and Battalion of the 14th Kegt., I know the prisoner at the bar ; his chief crimes are for absence and drunkenness, I am not aware that he has been, tried by Court Martial ; but he has received summary punishment ; he is a very well couducted man when sober;

His Honor then addressed the prisoner, pointing out the evils resulting from intoxication, and sentenced him to nine calendar months imprisonment with hard labour. Rcgina v. Hemi Warihana. Prisoner was indicted for wounding, with intent to murder one Riwai Patene, or the 28th January last. There were three counts in the indictment, one charging the prisoner with intent to kill and murder ; one with wounding with intent to main ; and one with wounding with intent to do some grevious bodily harm.

Mr. Brandon conducted the prosecution, the prisoner was undefended by counsel. ■ Mr. Baker acted as Interpreter to the Court. The prisoner was informed of his right to chal. lenge six of the jury, when he objected to thefol" lowing gentlemen as they came to be sworn, viz - Messrs Thompson, H. Taylor, J. Till, J. Tornp-: kins, W. Watts, E. Tetley. Mv- Brandon stated the case to the jury, and called the following witnesses : —

Riwai Patene, deposed,— l live at Warinaki, in the Upper Hutt, lam a planter. I know the prisoner, he is my younger brother, by the same father and mother. He came early to my whare on the morning of the 28th January. I heard him call to my wife, " Mata, Mata, are you there alone, or where is your husband ?" 1 woke up from sleep, and awoke my wife, I said, " Jtfata, Mata, it ia a murder for me, it is Hemi.'* When I opened the door, I said, " Here am I." I looked out of the door, and saw the prisoner jumping the fence, from my house. He had nothing in his hand at that time. Ho jumped from towards the house into a garden. He returned immediately, picked up his gun, and came towards me. It was a double-barrelled gun. He said, "you will be afraid," I said, " No, I shall not be afraid." He said again, " you will be afraid," I replied, " I shall not bo afraid." The prisoner then fired the gun at me, and aimed at my forehead. He was about ten yards from me. Prisoner then called out, " has anything happened to you ?" J cried out " no." The prisoner used the same word "No?" interrogatively. The prisoner coming up said, "perhaps, you will be afraid?" interrogatively. I said, " No, I shall not be afraid," and" put my hands bo; (putting left hand on left thigh, and right on abdomen) ; 1 did that, that he might hit all. He then came closer, to within five feet of me, the fence being between ua. He fired, and the ball struck my thumb, ana both thighs, Ho

stood right before me, on level ground.' The fence was an European four rail fence ; he fired betwet n the rails ; the rail upon which the gun rested was about the same height as the rail round the witness box. When he fired, I jumped over the fence and ran down one side of the fence, andheonthe other. There was another fence outside mine, running at an angle. When the prisoner fired at me the second time, he put one knee on the lowest rail, and rested the gun on the second rail. When the prisoner ran away, I observed that he was loading his gun. Raniera Taura and Hori Paengahuru was on the other side of his fence, when the prisoner was loading his gun. I called out, "I am bad " (i.e. wounded). I saw that my thumb was wounded, and felt the pain, but did not see the blood. I did not feel any pain in my thighs, I called out to the people, " I am bad." I then went to Hcrni's house, felt heavy about the thighs, and thought 1 was wounded. Heini's houso is .about the width of two acres from my house. When I got to Hemi's house, I found it was locked. I kicked it open, and took up an axe, and broke the two windows. When I came out of Hemi's house., Eaniera took hold of me. Henri was coming towards me, when he had reloaded the gun, and Eaniera took the gun from him. Kaniera also took the axe from me. Prisoner then went round his house, and brought out a bill-hook llemi stayed about the door of his own house ; there were a good many people about the door of the house at the time. I picked up a tomahawk in Hirini's house, but staggered, and became dizzy. Hemi then made grimaces at me, and danced with glee. I fell down in Hirini's house. Hemi was glad, he did not begin his grimaces until I staggered. I felt my right thigh, that the ball had not passed right through it. I called to the people, Hirini came, and cut the ball. out of my thigh. The wound is now well. Hejtni and 1 had had two quarrels, before this happened, but I did not know that this was his pretext for what he did. I had been admonishing Hemi two weeks previous about a woman. We had a fewwords the previous evening. By the Court,— On being asked what he mean by the words » It is my murder ;" witness replied that he had seen his spirit in a dream : we had n quarrels with the exception of those I have men tioned.

The prisoner disputed, the accuracy of the whole statement^ but did not cross-examine the witness. Mata Patene deposed,— lam a Christian. I am a married woman, and wife of Riwai Patene. I remember Hemi coming to my house on the 28th January, very early in the morning. He came to the whare, and cried " Mata, where is your husband 1 and said again « Mata, where is your husband ? My husband went outside, and cried, " here am I." Hemi then replied, " here am I " I saw both Hemi and my husband. Hemi said to Riwai, "presently you will be afraid," Riwai said, « I shall not be afraid. Hemi again said. " Presently you will be afraid, » Riwai said, " No, I shall not be afraid." Hemi fired, and aimed at his head, that is, at his forehead. He did not wound Riwai then. Hemi said, « has anything happened to you?" Riwai said "No," Hemi then came closer, to within tenor twelve feet, and nred again. Kiwai jumped over the fence. Riwai said, "I am tad."

By the Prisoner,— I saw. you pick up your gun, ana come towards the fence . Alexander Johnston deposed,— l am a member of the Royal College of Surgeons. On the lltu Febuary, I examined Riwai Patene; He had three wounds one passing through the thumb at its juncture with the hand, another passing superficially through the left thigh, and another in the inner side of the right thigh. The wound on the outside of the left thigh was the commencement of the wound on the inside of the right thigh : it was "a contused wound. I did not consider the wounds dangerous, jf it had burst the artery, it would have caused death in two or three n .routes afterwards. Considered that the wounda were caused by a gun shot. By the Court.— I heard Riwai Patene give hia evidence, and observed how his hands were placed, and think that the wounds could be inflicted from the position he then stood in; I think to inflict the wounds, the gun must have been slightly depressed. The wounds were not at a very considerable angle, not more than an angle of 25 degrees The incised wound on the inside of the right thigh was not made by a bullet, it had evidently been made lor the purpose of getting the bullet out. The Court then adjourned for five minutes. On resuming — Hibini Wiimiu Te PEHi,^depbsed to having cut the bullet out of Riwai Patene's thieh; The bullet was produced. Hori pAENGAiroiuj, deposed— l know Riwair Patene and I also know Hemi. I was in their company the evening before Riwai waa ohot They wore quarrelling, it was concerning Jack Webb s wife. They threatened they would strike each other seriously. I heard Riwai talking to some people, I was outside and we listened. The natives did not wish that Hemi should have anything to do with Webb's wife. Hemi had had connexions tvitb. her, but had not lived together as man and wife. Riwai was finding fault with Hemi about the woman.

Cross-examined by the prisoner,— T did not hear Riwai admonish Hemi, but I hoard them quarrelling ; I only heard the strong language ; luwaisaid "Why do you persist?" Hemi said, 1 Why should I not persist"?" One said to the other, I will beat you severely; Riwai told Hemi, he must not remain where he was ; Hemi said he would not hearken to that; Hemi said you did not let me have the ground, the land is Mathew's ; Riwai was in Herini's house, Hemi just outside ; Riwai said, if you do not hearken, I will break your house ; I heard Riwai say, that when Hemi had gone to cut his wheat he would break his house.

Eanihebi Tauba, deposed,— l remember the morning Biwai Patene was shot ; I heard two gun reports, about 6 o'clock in the morning, • and thought it was an European out shooting ; when I heard the second report I went outside and heard the people crying, I went to Henri's place and the people were crying. Heini had a double barreled gun in his hand, he was coming to ' shoot Kiwai, who was in Henri's house. When Hemi came up to his own house I took hold of "- thebairelof the gun and after a struggle got it from him. Hemi run round to the back of the house ; Kiwai came out of the house, he had an axe in his hand ; I threw the gun down and grasped the handle of the axe. Hemi cameiup with a bill hook in his hand. Henri was coming up to finish Riwai ; I called out to the people to secure Henri. I was with my back to Riwai driving him into Hirini's house. Henri followed me. Hemi said, 41 take Riwai away to Porirua, or I will kill him." By the prisoner,— l was not a long time in taking he axe away from Eiwai. By the Court, — Hemi said " let Riwai come on." This closed the case for the prosecution. The prisoner then addressed the jury in his defence. — He said we commenced the quarrel at Pakurataki, when Mr. McLean went to Wairarapa. I was not talking to Riwai, I was talking to Teringi. I was talking good. Mary said I was to be summoned before the Runanga Maori. Teringi said no. = That woman was given over tome. Riwai was angry with me, because of the woman, 1 >' asked Riwai, " why he was -angry with ' me, and ■ he said. •« he would drive met away from Pakuratahi,"— l said 4< I would not be driven away ?" I got angry— j stood up least .-he Bhould strike me while 1 was sitting. I then A picked up a stick and struck at Riwai, which he - warded off; he closed upon me and I took hold of his hair, and tried to throw him down. He* -V; caught hold of my thigh and threw me. l{opa f =: took hold of my leg, and I said let go my leg* andjv " h take hold of Riwai. This quarrel occured two"- S weeks previous to the Bhooting, That was all that ; » ; occurred. then.. About a week after 'that, r wefcifc , ■V* to take his money to him, We came back to OKi^&f '. :^ I commenced cutting my wheat. In the^Y^TOgS I went to Errofconga ; at 7 o'clock I ret^ed^b^ttSStf

I returned Kiwai had come to Hirini's house. I heard Riwai talking to some person in Hirini's. If Eiwai had given a faithful account, I would have said nothing about it. He came to that part where he said he would drive me away. I then said, " Who was he about to drive away?" — those words were left at Pakaratahi— they were left behind. Eiwai eaid, " I will drive you away" — I said *' I will not hearken, because this place where my house stands is not your property. Matthew gave me the ground." Kiwai said "he would break my house," I eaid, " if you do, you will be the payment for it." He said, " yes, I will be the payment for it." I said, " No, come and break the house now." He replied, " when you have gone to cut your wheat, then I will come and break your house." That is all about the second quarrel. This was two weeks after the first quarrel. On the morning of the 28th January, I had been to the Errotonga to get some fish ; when T got to my gate, I went to Eiwai's house, and called out Mata ; there was a fire in Riwai's house, Riwai came out. I said, "it is not fair that you should let me pass your house to cut my wheat, and then for you to break my house ; it is daylight ; you had better do it now." I went to my house, and fetched my gun, and locked my door. I returned to Riwai's house, and called out Mata. Kiwai came out determined, and I fired at him. 1 asked him " was he hurt, how are you ?" — he said "no." I fired again, and Riwai jumped over the fence I went towards my house ; I met Martin, who tried to wrest the gun from me, hut he did not succeed. I went to my house, and Raniera took the gun from me ; Riwai was in my house ; I heard the glass of my windows break. Raniera took the axe from Riwai ; I then went to the back of my house for atnll-hook ; Riwai had a tomahawk, with a four feet handle, in his hand ; I then went away, and the woman pelted me with stones, one of which struck mv in the hack.

Riwai, recalled by the Court, — When Hemi came to my house, I had a knife in my hand. I simply held it in my hand, 1 did not threaten Hemi with it. The knife was about 8 inches long, with a wooden handle ; it was a knife for cutting food with. Hemi did not say that morning that it was not fair to_ let him go and cut his wheat, and then break his house. I did not say that morning that I would break his house, I said it the day before. When he first fired at me, he lifted the gun up fair to his shoulder. He fired it directly he presented it. Hemi is accustomed to a gun. I stood at the door of my house, I did not go towards Hemi. Hoko Mongomongo, deposed.r-^They were at my house at the Pakaratahi. Riwai sat my side of the house, and Hemi and Teringi' were sitting on the other. They commenced about a letter received from Mary Webb. Hemi said that the Maories had nothing more to do with Mary. Biwai made an expression of dissent. Hemi said "be quiet, lam not saying anything to you ; I am talking to Teringi. Riwai said to Hemi, "you are getting foolish over the European's wife." Hemi said, " what is my folly ?" Eewai said "I do not wish you to have the European's wife, because she is a married woman." Eiwai said again, "it is folly for you to have to do with a European's wife " Riwai said Anawhi. Hemi said, "do it then." Hemi took off his blue shirfc, I put my arms round Riwai's neck. Hemi picked up an axe handle, and struck a blow at Riwai's head, Riwai warded it off. They then wrestled together, I had hold of Hemi's leg, they were afterwards parted. His Honor then carefully summed up, and explained the law of the case, the address being interpreted to the prisoner, sentence by sentence, as his honor proceeded. The jury then retired, and after a short absence, returned into court with a verdict of guilty of wounding; with intent to kill and murder. His Honor then enquired if any person in Court could speak to the character of the prisoner, previous to the commission of the crime. The prosecutor and a native assessor, both gave him a (good character up to the time of the quarrel with nis brother. His Honor then admonished the prisoner, .upon, the enormity of the offence of which he had been found guilty, and sentenced him to three years imprisonment and hard labour ; stating as his. reason for giving so lenient a sentence was becanse he thought that the natives were not * co well informed with regard to European laws, as he hoped they shortly would be ; and they had been too much under the impression that they could commit these acts of violence among themselves with impunity — and also with a view to save the prisoner from the contaminating influences of being mixed with felons of the worst class — but his Honor wished it to be thoroughly understood, and hoped that those natives present would tell all their fellow natives that although the Court had endeavoured to obtain eveiy tittle of evidence that could enable it to exercise its large discretionary powers of clemency in this instance, yet that they must by "no means expect similar punishment to follow should any of them after being thus informed commit such offences. This case terminated the Criminal Sittings. The Court was then adjourned until Saturday next, the Bth inst,, at 10 a.m., when the Civil Sittings will be holden.