SUPREME COURT.

Wellington Independent, Volume XXVI, Issue 3295, 6 September 1871, Page 3

SUPREME COURT.

CRIMINAL SITTINGS.— Tuesday, Sept. 4 (Before His Honor Mr Justice Johnston ) JtUKDER. John M'Kenzie M'Donald was charged with having caused the death of Peter Phin, by wilfully and maliciously setting lire to the Caledonian Hotel, at Wtvngaehu, near Wangnnui. Mr Izard, with Mr /Han, appeared for tlio Crown ; Sir T ravers defended (ho prisoner. llr Izard opened the case for the prosecution. Ho stated the facts in detail, and concluded by reading a case bearing on the law of homicide from Forstor. Mr Truvera contended that, on (ho facts as opened, the charge would not amount to ono of murder. The learned counsel sfafed the legal position as laid down in Ruseell, on crimes. It was there laid down that if a man were stealing poultry, and in shooting at them he were to shoot a man that would be murder, bi cause of the presence of a felonious intent. The prisoner in the present case was indicted for wilful murder in having eet firo to the house, his intention being to kill. The intent to kill c-'iild not bo shown, and ho contended that the setting fin. to his own liouso by any person was not an offence in law any more than if he were to pull it down. There must be the presence of a malicious intent to bring home a charge of murder. Ho showed that if a person set fire to a house, not knowing that there was any person inside, and if a person inside were killed, then that would only amount to manslaughter, because there was absence of any felonious intent. j After a yery lengthened argument between ' Mr Travers and his Honor, the objection to the framing of the indictment was over-ruled.

The evidence for the prosecution was then proceeded with. Francis William Knowlee, surveyor, gave evidence as to the accuracy of maps of the sceno of the fire.

George Beaven, Wanganui, merchant and agent for tho Victoria Fire and Marine Incur ance Company, proved tho insurance of the property by the accused, to the amount of £250.

Joseph Chad wick, auctioneer, narrated a conversation with the prisoner before the fire, ns to the value of a receipt for insurance. The prisoner expressed himself dissatisfied at not having a policy. Witness told him tho receipt, was equivalent to a policy, and the prisoner expressed himself satisfied, stilting thai the hotel had already been once on five. Roderick JManion, who had slept in the hotel on the night of the fire, described tho dress of tho man who, with himself and Henry Davis, painter, slept in tho hotel. When the alarm of fire was given during the night by tho prisoner, he (the witness) endeavored to assist the man towards a windo\v,by which he himself escaped, but, the man was stiff and stupefied, though alive and capable of moving his arms. He placed the man against the table while ho got out by a small window which the painter had broken to enable them to escape, leaving, the man and the painter in the room, but when he got on the verandah lie was forced away by the fire. He jumped from the verandah,, and the painter jumped afterwards from another place, breaking somo of his ribs as ho fell. The prisoner had no boots or hat on, but was otherwise completely dressed, with his watch in his pocket, "fit (o attend Divine Service." He described the discovery of human remains among the ashes, tho circumstance of carrying a bedstead to Elliott's place, of Elliott afterwards showing him, among the flux or scrub, a bag containing a gun, a revolver pistol, fluffs, <fee, and a portmanteau containing books and a smoking cup. He related how he told tho prisoner of having seeu those things, and of his belief that the place hud been wilfully set on fire ; how ho called the prisoner an unjust mnn, a person unsafe to live wiili, a scoundrel, and a murderer : how the prisoner, at first cool, became pale and trembled ; how tho prisoner offered him means to go out of tho island or elsewhere; and how he proceeded to Wanganui and gave information of the circumstances to tho police.

Henry PJlliott said that the prisoner and he had together leased a run near the hotel. A few weeks before the fue he noticed in the kitchen of tho hotel from 100 to 150 million haras. During the week he missed some of these, and on the Saturday before the fire tho lot were- gone. On the morning of the firo tho prisoner told him he hud a portmanteau which he wished to sewd to his (Elliott's) whuro. Ho replied that he was going down to tlio run, and that, if it wore not too heavy, he would take it. The prisoner did not say why he wanted it taken to the whare. He took it with him, and left it among some bush. 8 behind the whare. On the following morning Roderick brought to him v stretcher which the prisoner hud promised to send to the whnro. As it was a windy day he advised tliut it should be left beside the truck where they met. On another day the prisoner came to him and requested him to go to a spot a short distance oft 1 where ho would find a b;ig standing. Ho went, found it, and took it to tho bank of tho river. TJio prisoner asked him to take it to the whuro. His reason for not Inking it, was that he thought there was something wrong, seeing .that tho bug was sewed up. He afterwards showed Roderick the bag, and tho latter opened it. and found the articles produced. Afterwards Roderick opened the portmanteau with a epade. Saw the prisoner in tho afternoon. Prisoner asked where the bag was. He told him, and prisoner went for the bag and carried it away — By Mr Travere : Had no business transactions with the prisoner, excepting the lousing of a run. Knew him since October last. Met him first at Turakinu, four miles from Wungacbu. Culled at his house occasionally afterwards. In June or Ju'y last had first transaction with prisoner. That was aB to leasing a small run. Was on his way to Putea to look for a place, when prisoner said thero was a run nenr at hand which might suit. A fi:v,' days after, they niado arrangomenfs. Was to manage tho run, and prisoner was to find him in stores. Was to put sheep and a few catllo on the run. Hud written for money to stock the run. Its extent was GSO acres of very good grnzing ground. Understood prisoner was to boar a Bharo of stocking, but thero was no population of that kind. Prisoner wbb to get one-half of profits, if ho put up a stock-yard, and got sales thero. Intended to stock the ground with 1000 or 1200 sheep. Had no agreement in writing, or any definite arrangement. Had an arrangement aa to tho Icubo with Mr Blyth. After the

fire lived in Watt's houso, -with prisoner, Frasor, Roderick, and the painter. The painter left after tho day of the Cre to go to hospital. On tho night of tho fire slept at the wharo. Did so because ho had started for Mr Blyfh's and for town. Saw the portmanteau that night among tho toie. Intouded to go to town, but it was a very rough morning— thunder, lightning, and rain— and went back to Watt's houso. There was a police constable thero, Roderick and ho (the witness) expressed themselves that there was something suspicious about the fire. Thought it strange tho portmanteau should be sent to such a place as tho whare, bufc said nothing. Said to Roderick, when ho showed him the bng, that ho feared there had been some foul play. When examined before the magistrate at Wauganui, was cross-examined by Mr Cooper. On that occasion Baid : — " lam positive I did not say to Roderick that M'Donald had set firo to tho hotel : I did not say anything to Roderick by which he eouM infer that tho place was wilfully sot on fire." Mr Cooper asked him what tlioy hud been talking about during a conversation which look place half an hour before they went to the bng, and his answer reforrod to that conversation. It was an omission on his part not to say to Mr Cooper that he hud made these remarks while they were at tho bag. It was thero the conversation occcurrcd. Had his suspicions aroused first when the bag was pointed out to him. Thought thero was something strange about the portmanteau, but was not then suspicious. Did not know Roderick w.is going to Wanganui to lay an information. Tumkina was the nearost police station. Gavo informa tion to tho police, but did not inform the police then. When atikod by Sergrant Reid, stated what lio knew. Never haH conversation with prisoner a3 to his means. Know he was doing a good business, and Mr Blj, tli said tho business was worth £1,200 a year. The house had undergone considerable improvements, and appeared to be well furnished. From Sunday, mid -day, until midnight,, never camo out of the house, and knew nothing of the fire until Fraser came and told him of tho fire. Dined at home that cUy. Did not remember the hour. The stretcher was brought on the same day, before bis dinner hour ; and the portiaanteau was . brought earlier. There was no concealment as to the conveyance of these. Thought the portmanteau was quite as well among tho Uox us in tho whare, which was unfinished, and open to tho natives. Took tho portmanteau without making remark, but thought, it strange. Had no private conversation with prisoner as to the insurance of his premises or iurnituro, or about shifting the site of the house. Did not know the prisoner was heavily in debt. Thought he was in flourishing uir cumstances.

Henry Davis gavo oviden.ee corroborative of that of the witness " Roderick," as to the live, and as to circumstances by which it was precoded and followed.

Agnes Elizabeth Davidson, who had been a servant in the houso, gavo evidence aB to the fire which had occurred previously in tho house, but on that occasion tho prisoner was absent from the house for two hours.

The further hearing of tho evidence was then — seven p.m. — postponed until this duy, at ten o'clock in the forenoon.