SUPREME COURT.

Wellington Independent, Volume XXVI, Issue 3141, 7 March 1871, Page 3

SUPREME COURT.

CRIMINAL SITTINGS.— Monday, Mch. 6. (Before Mr Justice Johnston.) The names of the Grand Jurors were as follows :— Messrs W. B. Rhodes (foremau), E. H. Hunt, D. M'lntyre, W. Johnston, J. A. Allan, John Martin, D. Anderson, N. Marchant, A. P. Stuart, H. A. Owen, P. 0. Kreeft, J. E. Nathan, J. R. George, F. A. Krull, T. M'Kenzie, R. Port, T. Mason, E. Miller, 0. J. Toxward, L. Levy, R. Lambert, C. Tringham, J. Yule. His Honor proceeded to address the Grand Jury. Ho did not propose on that oocnsion to make any general observations with regard to the state of this portion of the colony. Respecting the offences which would be brought before them, there were one or two points to which he would have to call their specific attention. His Honor then proceeded to comment upon the cases in the calendar in the order in which they appeared. In the first case, the indictment would be presented for house-breaking and larceny ; and if the facts of the case were as set down in the depositions they would experience very little trouble in finding. It simply amounted to this. The keeper of a house left her shop) unprotected, and on coming back found certain persons inside drinking. If they were satisfied that the faetening of the door had been broken, it would be quite competent for them to find a bill for larceny, or for breaking into the house with intent to Bteal. The next case would require more of their attention, but still was one peculiarly fitted for a Grand Jury to deal with. Maurice Mulcahy was charged that he 6id shoot at another person with intent to murder, or with intent to do him some grievous bodily harm. The question for them to consider would be to decide on the nature of the act,— to say whether it was a voluntary act on the part of the prisoner or not. If they thought the evidence did not fully establish that charge, and that it was in all probability an involuntary act, they would perhaps think it unnecessary to inquire any further into the matter, although it did not by any means follow that it was not a very proper oase for such a prosecution. The ca3e, however, possessed another aspect, as the prosecutor admitted that he was the aggressive party. Still, counidorable additional light would be derived from the evidence of the woman who was present, as she was perfectly sober, while the others were very much advanced in drink, and they would thus be enabled to decide whether in their opinion the act was voluntary and intentional, or involuntary and accidental. He need hardly point out to men of their sense and reflection, that a man must be taken to have intended tLat which was the inevitable or highly probable consequence of the act which he committed ; as if a man fire a gun in the direction of another, and that he duly charged the gun, there could be little doubt that ho intended to kill him. However, aftor the Grand Jury took a large and comprehensive view of the matter, if they thought a further investigation desirable, they Ought to find a true bill. There were certainly circumstances which justified a man in shooting, such as the protection of his life and property. But the law, in providing for the weakness and frailty of human nature, qualified its general proposition upon this subjeer, ; and although it held that a man was sometimes justified in going to extreme violence, yet if he took the life of another, he did it at the risk of being obliged to show that in self-defence it was necessary to inflict death. No idle alarm, or fear oi vengeance for some act previously done, would be a justification for such offence. In a case like this, where it was admitted there was aggression on the part of the prosecutor, it might be regarded aa the striking of the first blow as it were. Yet if a person went and procured a deadly, weapon, and having no necessity to discharge it in order to save his life, did deliberately discharge it at his aggressor, he was guilty of murder. If, however, there had been immediate provocation, and no time sufficient for a complete coolness had elapsed, and he should search for a weapon or get one close at hand, and discharge it, and Buch an act were committed in the heat of the blood, it would possibly be regarded as manslaughter ; but if a reasonable amount of time elapsed to allow of the excitement passing away before commission, then the act was murder. As regarded their duties in this case, if they were satisfied that the act wa9 voluntary they need not trouble themselves aboat the intent. If they were of opinion that the act was not accidental, that it was not absolutely necessary in self defence, he would advise them to find a true bill. Hid Honor then recapitulated the leading points of the evidence in the depositions. The next case was that against Francis Rochez alias Manila, for a breach of the existing Arms Act, laid by the Inspector of the Police. Before explaining thi6 case it would be necessary to point out to the Grand Jury a question which had not occurred to himself before in discussing points in the Arms Act, and that was, that if the facts as set down were proved they would constitute felony. His Honor then explained the various alterations made in the Arms Act from 1860 to 1869, in which year the original provisions of the Arms Act were continued for five years longer, and by which the Court had power to imprison with hard labor for a term not exceeding two years. "Under former provisions it was necessary that the prosecution should be made by an official j and although proceedings in this instance had been taken by a duly appointed officer, it was no longer necessary, as anybody might prosecute ; but inasmuch as the transaction in question took place since the passing of the Act of 1869, that would give rise to a questiou which he might have to consider hereafter; but the jury would simply have to determine from the evidence whether a prima facie case was established, and find accordingly. The matter was of that nature that did not requiro there should have been a transaction of that sort that would properly be called a sale. Any kind of a transaction by means of which one person parted and another person procured possession would be sufficient to satisfy the statute, and he waß not quite sure whether also lending a gun to another person would not be held equally liable. Therefore, if they were .satisfied that the prisoner Induced the Maori to give his horse in exchange for the gun, that •would be sufficient disposal within the meaning of the statute. It appeared that in this case Rocbez, finding that he waa likely to be in jeopardy, mado some arrangement which re. suited in the horse being returned ; but with that they had nothing to do. They were to deal Bimply with the intention oi the person at, the time of the transaction. If fche intention was to give the gun for the horse by one and to take the gun for the horse by the other, then the person was guilty. It would neverdo to say they had one law for foreigners and another for Englishmen. If people came here to reside under our laws, whether naturalised or not, they became liable to our laws and customs j they enjoyed the protection afforded by our laws, and they must become a 8 responsible for a breach as ourselves. The next case might possibly involve a question of law. Tho person, Morton Quin, appeared to have been an office-bearer in a volunteer fire brigade, and was, in addition, treasurer of the brigade, and in that capacity had received certain moneys on behalf of tho brigade. According to the provisions of the Volunteer Act, all proceedings in such cases, whether of a civil or criminal nature, could be taken by the superior officer of the brigade, who could sue forthepropeity as his property. As Morton Quin was an inferior officer, and also performed the duties of treasurer, it became part of his duties to receive moneys on behalf of the brigade and pay them away in a certain manner. It might be asked whether Quin, being a member, could embezzle any money in which he was to some extent beneficially interested ; it was also to be considered that tho property was vested in the superior officer of the brigade, and that any person, even though a member of the brigade, appropriating or not accounting for sums of money might be held liable.

He did aofc speak with the greatest confidence on this point, but, as &t present advised, it would be competent for the jury to find a bill against this inferiorofficer for embezzling money ho having received it on behalf of the brigade, and subsequently misappropriated it. With reference to the second charge against Quin of larceny, as a bailee, his Honor explained the difference between the crime of obtaining and keeping possession of money which had never passed into the hands of the rightful owner, and that of abstracting property in the possession of the owner ; but any question which might arise on this point need not trouble the jury fas it would be argued at another time. The jury must recollect that there might bo entries in the accounts of moneys received and yet bo misappropriation. On the whole, if they were satisfied that having sums of money given to him which he used for himself, they must accept it as a prima facie case and find accordingly. The next oase was not an ordinary one. It was a case arising out of bankruptcy, and was the first case of the sort he had had in this province, although there had been several of the sort elsewhere ; and the point on which it chiefly hinged had been recently decided on m the Court of Appeal here. With regard to certain fixed principles in the bankruptcy law, there could be no doubt that any system which afibrded facilities for practices of a dishonest character— for getting credit and then übusing it by defeating creditors— that such a system must be vicious. He was happy to say that he had not here seen many cases in which even strong suspicions had arisen against the parties ; but there were many iu3tances of parties having been unduly trusted and been by that means led into difficulties. In order to prevent such practices, it was the public duty of persons connectad with transactions of this sort to take the trouble — which he regretted to say they were not generally too apt to do — to bring forward any case that called for an investigation. It was most wholesome, wise, and necessary that if there was a good reason for believing that anything like misappropriation had taken place, that it should be publicly exposed and punished ; as everybody connected with these matters must understand that the relief to be given to a bankrupt is to be given only in certain cases. Any bankrupt who took steps to defeat his creditors by diminishing his assets was not only guilty of a crime but helped to bring the administration of the Bankruptcy Court into discredit, and the person who did so deserved punishment, and an example should be made, so as to deter others. His Honor then gave a minute explanation of the provisions of the law of bankruptcy, and the facts of the case before the Court. (The particulars of the case, as disclosed in the evidence taken before the Resident Magistrate, on which Anderson was committed, have appeared so recently in this paper as doubtless to be still fresh in the minds of our renders). His Honor, in conclusion, said it would be for tho jury, on hearing the (Mtimony, to say whether there was not good and prima facie reason for believing this man to have voluntarily and intentionally defrauded his creditors by omitting from his statement a certain balance which he retained at the time he failed.

The Grand Jury then retired. On the return of the Grand Jury into Court the foreman announced that they had found true bills in tho i olio wing cases :— Maurice Mulcahey, shooting with intent to kill ; Morton Quin, embezzlement ; Morton Quin, larceny ; Francis Rochez, alias Manilla, breach of Arms Act ; John Anderson, breach of Bankruptcy Act. In the case of Thomas Daly and John Gill, charged with breaking into a dwell-ing-house, the indictment was ignored. SHOOTING WITH INTENT TO KIKD. Maurice Mulcahey was charged with having, on the 21st November, 1870, fired a gun with intent to maim, and further, with intent to do grievous bodily harm to Vernon Jameß Campbell. The charge having been read over to the prisoner, he pleaded " Not Guilty." Mr J. G. Allan appeared for the defence. A jury having been empanelled, of which Mr Bowater was chosen foreman, the facts of the case were stated by Mr Izard, the Crown Piosecutor, but as the publio are already acquainted with them, it will be unnecessary to recapitulate them hero. The following evidence was given : — Vernon James Campbell, sworn, deposed : — lam a bullock-drivor. On the 21st November, I was employed by prisoner, who is manger of Ohanga station. On that day I arrived from Castle Point. When I arrived, I went to the house, where it was usual to have meals. I saw there Mulcahey and Mrs Action, who was at the station on a visit during prisoner's absence a short time previously. Prisoner asked me why I was not home the night befoie, which I explained by having been thrown from my horse on the road. I asked him if I should yoke up the team to go up the hill, and he said no. At that time I gave him notice that I was going to leave his service, stating that my reuson was that I was about to enter into business on my own account as a carrier. He said that if that was my intention he would make me a present of a pair of j steers. We were on amicable terms at tins time. We afterwards had a few drinks together, and then went outside and had a fight. The dispute was in reference to a man named Cain, a good Bet to being the result. The fight lasted about ten minutes, and we were pre-ty equally matched. I then went towards the woolshed and prisoner went into the house. I afterwards returned towards the house though Ido not exactly know what for. I was very much excited when I returned to the house consequent on the struggle and having taken the drink, I cannot say whether the door was open or shut. lam not very clear about how it was that I was shot. I first saw the prisoner with the gun at the door of the kitchen. He told me to go away. 1 was advancing to take hold of the gun when I was shot. I made no attempt to strike him before be shot me. I could not say in what position the gun was when I was shot. The contents were lodged in my face. I was badly wounded, and was ill for come time. Doctors Grace and Smith attended me. Crossexamined by Mr Allan : Couldn't say how muoh I had had to drink. After the fight the prisoner went into the house. The reason I returned, after going away, was to get something I had left behind. I tried to get into the house, but did not break into it I was close up to the door of the house when I saw the prisoner with the gun. We were about two yards apart when I was shot. When I saw the prisoner with the gun, I struck at him. lam not positive about this. [The evidence of tbe witness not being clear, the depositions were read over to him, the judge advising him to be very careful in his statements.] It is impossible for mo to Bay how the gun went off. I never touched the gun at all. Wo were always very good friends previous to this. Re-examined by Mr Izard : I was about one and a haif yards from the gun when it went off. I am not quite positive whether I succeeded in striking him or not before he fired the gun.

Mary Ann Action, examined by Mr Izard : On the 21st November, I was at Ohanga Station. I was at the house when Campbell returned in the morning, which was between ten and eleven; When he arrived, he opened his swag, prisoner being present, and the two had a glass of grog. They dined together between twelve and one. Between the time of arrival of prosecutor, and dinner, the two and the shepherd drank a bottle of pale brandy among them. There were five of us at dinner, and more drink was consumed. The prisoner and prosecutor were still on friendly terms. After dinner there were no persons present but myself, tbe prisoner and prosecutor, when high words took place about some bullockß. Prosecutor told prisoner he wished to leave his service, but would not leave him in a shabby way. In the conversation Campbell said something about Cane, when Mulcahey became very irritable and caught hold of Campbell. After he caught hold of him they went outside together, where

they both fell down, and prosecutor was beating prisoner on the ground. Prisoner then rose up, went into the house, and shut the door. I remained outside when they were ffghting, trying to separate them. After the fight I still remained outside. Campbell put on his coat and went away. Prisoner went inside, shut the door, and afterwards came out with a gun in bis hand and told Campbell to clear off the premises. He then went inside again, but came out two or three minutes afterwards and stood on the step of the door, Campbell having returned, being about three or four yards distant. Prisoner had tho gun in his hand when he came out, and it went off quickly, Campbell being about three or four yards off. The gun was quite Btraight, and pointed at Campbell. Prisoner held the gun in both hands. When the gun went off Campbell was walking up to the door. He did not seem excited, and no words passed between them. When the gun went off Campbell fell, and prisoner went inside. I immediately started off to tbe nearest accommodation house for assistance. When I came back, I found that prisoner had taken Campbell inside, and was attending to him. Crossexamined by Mr Allen: When they commenced fighting outside I was quito close to them. Campbell was beating the prisoner about the face and the eye 9. I said to Campbell, " You will kill him if you don't get up." They then got up of their own accord. I had been trying to separate them. After the fight, Campbell did not try to get inside, but was very close to the door. I will swear that Campbell did not try to break in the door. I never have »ade such a statement. Campbell never went within three or four yards of the door after the fight. When prisoner oamo out, Campbell stood quite still, and made no attempt to advance towards prisoner. I made every effort to get Campbell away. Prisoner was pointing the gun horizontally at Campbell. I had no thought of fear at the time myself. I did not make any attempt to runaway untilafter Campbell was shot. Campbell made no attempt to wrest the gun from prisoner. lam positive that the muzzle of the gun was three or four yards from Camp- j bell. [An ocular comparison reduced the distance to about eight feet.] I never said to Dr. Grace that Campbell rushed up to prisoner and seized the gun. lam positive of this. r lhe butt of the gun was towards prisoner's Bhoulder, but I cannot say whether it was touching or not. John Smith, examined by Mr Izard : lam a duly qualified medical practitioner, residing at Greytown. On tho 23rd November last I was called to Dr. Grace's station to examine Campbell. The man was suffering acutely from wounds in the face and head. I only succeeded in extracting one shot, which was near the surface. There were about twelve shots in his face, some of which I could not extract ; they are in his face still. I considered the case a dangerous one. All the shot were lodged about the nose, some of them having passed through the roof of the mouth, and lodged deep in tho tissues round tho nose. There was no trace of wadding. I apprehended hemorrhage, inflammation, and fever. There was great constitutional disturbance. By Mr Allan: The forehead was very much blackened by powder. The ahot passed through the roof of Campbell's mouth downwardß. He must have been stnoi ing at the time he received the contents of the charge. There were two small openings in the front part of the roof of the mouth. The skin of the nose was very much swollen and discolored. From the appearances I should suppose the gun must have been at some little distance when discharged. There was no wadding in the charge or it must have killed prosecut r. Re-ex-amined by Mr Izard — From the distribution of the shot and the fact that the flesh was only blackened and not scorched, I reason that the gun must have been discharged at a distance of a few yards. I consider the wounds in the face to be such as would be inflicted by a small charge of powder and shot without wadding discharged at a distance of about three yards. Jas Donnelly, examined by Mr Izard : I am constable at Mae(«rton. I produce the shot extraoted by Dr Smith from Campbell's face. It is a No. 1 shot, large size. Thisclosed the case for the Crown. Mr Allan submitted that there was no case to go to a jury. His Honor overruled the objection. M. S. Grace, examined by Mr Allan j Tho general character of the prisoner is very penceable, though he sometimes gets drunk. I am not aware that he is quarrelsome. He has been in my employ off and on for six years. I went up to my station on the 23rd or 24th November, in consequence of what I heard about this case. I saw Campbell. I examined him carefully. I found he was not seriously injured. His face was blaokened with pow-, der, some being buried under fche skin. He had three or four grains of shot in his upper lip, and five or Bix on the nose and about the nose. The face was swollen, red, and apparently singed. I felt sure that he was in no danger. He told me that he had a shot or two in the roof of his mouth. I examined his mouth, but could not discover any shot. The question as to the distance at whioh the gun was discharged puzzled me, because of the distribution of the shot. Either there was no wadding between the powder and the shot, or tbe charge was delivered point blank clobo to the skin. I am positive the gun must have been discharged close to the face. lam distinctly of opinion that Campbell only reooived a portion of the charge. The appearances were quite consistent with what I should expect if a man were to run towards another who held a gan, and it die- j charged. I cannot conceive it possible that if a gun were discharged at a distance of three or four yards there would be any powdor buried in the skin. The greatest limit I think it possible for powder to carry in a body and bury in the akin would be twelve inches. In explanation of the circumstances of the caße, Mrs Action told me that Campbell had nearly killed the prisoner in the struggle between them. She distinctly told me that Campbell had tried to break into tho house three times, and that once he succeeded. I do not remember whether she said this was before the fight or not. Re-examined by Mr Izard : Mrs Action told me that when she interfered Campbell got outside, and afterwards demanded admission, and on prisoner refusing Campbell broke into the house. If there had been wadding in the charge, and it had been fired close to the skin, it would have made a hole in Campbell's face, though in this case the gun may have been discharged close to the face in an oblique direction, and the wadding so have escaped. The wounds produced were such as might do grevious bodily harm. This was the whole case. Mr Allan said he rose with some anxiety in defence of such a charge as that brought against the prisoner — a charge equal to one of murder. He felt sure that when the jury were called on to express an opinion they would feel satisfied that there was no intention on the part of tho prisoner to inflict that bodily harm with which he Btood charged. They had heard from Dr Grace tho character of the man, and he did not think they would find him guilty of such a charge as that of wilfully attempting to take away the life of another. Dr Grace himself hod told them that he was a person whose character justified the placing of him in a very responsible poai tion. Ho could not think it possible that they would find him guilty of a charge tantamount to tbat of murder, for he considered that a man who was guilty of shooting with intent was quite as culpable as a man who succeeded in carrying out an intention of the kind, for tho miscarriage of tho act was no mitigation of tho object of its purpose. On the other hand, the two had been living on amicable terms ; the evidence Bhowed this. Unfortunately they had had some drink together, but it was clearly proved in evidence that Campbell was the aggressor ; that ho threw prisoner down, and had inflicted a severe beating upon him ; naturally enough, on receiving suoh provocation, the prisoner rushed, in hot blood, for a weapon of retalia-

tion, and proof bad been given, that immediately on hie appearance with a gun in his hand, Campbell had immediately rushed at him to seize the gun, and in the struggle it was discharged. There was no evidence that Campbell had made any effort to get away on the appearance of the prisoner with a gun in his hand. The inference to be drawn from this was that Campbell had rushed forward and the gun was dischargod in the struggle. To find prisoner guilty it was not sufficient to show that the gun went off in the struggle ; it must be proved that prisoner pulled the trigger, or that he was instrumental in its dischnrge, and that his intention was to do the prosecutor grievous bodily harm. A discussion arose 08 to the law on the question of intent, his Honor pointing out to the Crown Prosecutor that it might be necessary to find whether the prisoner actually intended by the firing of the gun to take the life of the prosecutor. His Honor also pointed out that this was a distinction which might only apply to the higher charge of murder, and in that case it would be advisable to withdraw the first count on which the prisoner stood charged. Mr Izard thereupon abandoned the first count. His Honor again pointed out out that even if it were admitted that there was no intention on the part of the prisoner to kill, if it were proved that the act was a voluntary one notwithstanding, it would at least be the duty of the jury to find a verdict of unlawfully wounding, because no ground of justification could be urged. Mr Allen then said that the contention of the Crown now was that the prisoner did an act which he could not jusify, but that hypothesis implied that there must have been some intention to do bodily harm. As the case now stood it was for the jury to say whether the discharge of the gun was a voluntary act, or whether it was an accidental occurrence. To find the prisoner guilty of the intent to do bodily harm, there must be some intention shown. The evidence of Mrs Action could not be relied on, because she had admitted that she wn« exoited, and had also admitted that her first version, that the shot was discharged at a distance of three or four yards waa incorrect, and had toned it down to from one to two yards. Her evidence was contradictory in so many particulars that her whole story was incredible. Then, again, despito tho medical evidenco, there remained the incontrovertible conclusion that the gun had gone off in the struggle which had taken place between the two. Irrespective of fche medical evidence, it could not be doubted that if the gun had been deliberately pointed, an had been alleged, the prosecutor must have been killed. The more probable conclusion was, that the prisoner was holding the gun in a careless way with the intention of frightening the prosecutor away, and that in the subsequent struggle the prosecutor had received a portion only of the discharge, which was purely the result of accident and not of deliberation. All other portions of tho evidence ■pointed to one inevitable conclusion, that the discharge of the gun was the result of a simple accident on the part of a person who bore no kind of animosity whatever against the prosecutor. Mr Izard addressed the jury on behalf of the Crown, and his Honor summed Up, reviewing the evidence in the case. The jury having retired, returned into Court after an abpenoe of about three quarters of an hour with a verdict of not guilty. The prisoners in the other cases on the calendar were placed in the box, and in answer to their several charges pleaded not guilty. Tho Court then adjourned at 5.15 p.m. till 10 o'clock next morning.