POWELKA ACQUITTED.

Dominion, Volume 3, Issue 829, 30 May 1910, Page 8

POWELKA ACQUITTED.

ON MURDER CHARGE

THE SCENE IN COURT AT THE END,

PRISONER AFFECTED.

*By Telegraph—Special Correspondent.) Palmcrstori North, May 28. After , a sitting extending over four Hays, the trial of John Joseph Powelka, charged with the murder of the late Sergeant Maguire, on April 10, concluded to-day, prisoner .being acquitted on the capital charge. The jury also added a . rider .relating to , the part played by Detective Quartermain lon the night of -the tragedy., .

COUNSEL FOR THE DEFENCE. Mr. Moore, in addressing the jury, first assailed the. Crown case as to Powelka's alleged whereabouts -on the Sunday. Then there was the key. That ■was the only clue that the Crown had to - accused breaking into Farland's house. If the jury found that the key -did not belong to Mrs. .Farland, andthat she was wrong in identifying, it, t!iey would haVe to find/accused had not broken into Mrs. Farland's house. If so, one of the very strongest points jf. the Crown's case had gone entirely, ■ for the Crown's theory was that tho cap found on Hampton's lawn was stolen from Farland's by the person svho broke into the house. Then camo Hampton's experiences of Sunday night. Hampton had said that when he heard the thud of a man jurapiug the fence on the other sido of the road it was about 7.15, and hd recognised (that man..' • Counsel contended that it a.IS that night it was quite dark. Tho iWitnesses called by the defence stated that, they had' made demonstrations, and even 011 a moonlight night it was impossible to, recognise a man aftor he %ad'got inside the gate.

Hampton's Evidence Assailed. Counsel now- proceeded to deal with the affair, oil .the. lawn and Detective •Quartermain's part in it. ''Ho-con-tended that the statement given by Q.uartermain : immediately after tlie occurrence to Dr. Wil.-on was more likely "to be the accurate one. Counsel ridiculed Hampton's statement that he beard a cry from the intruder which he recognised as accused's voice. That,, bo. alleged, was a little more of Mr/ Hampton's'padding. When Quartermain and Hampton came on to the, lawn in response to Maguire's cry, counsel contended there was no evidence to show how. far off they were from the two men struggling on the lawn. ,As far.. .as the . evidence was concerned -it was absolutely unreliable, and it ,was just' as likely, that Hampton and < Quartermain might have .lira right: into the-other two before the shots were'fired. There was contusion as to the number'of shots fired. Maguire' said Quartermain "had fired two or three." Krivan said he : only heard two, and Quartermain stated to Dr. Wilson that the assailant fired a shot, and he (Quartermain) had fired two at the flash.

Two Important Matters. TJie question of ammunition was nest flealt, with, and counsel said, Tisdall's ■evidence was that the appropriate am-, munition for Quartermain's revolver 'was one of two kinds, and the bullet •found in deceased's body was onp of those'.kinds. Why ; did not the Crown . call Mr. Purdy, the owner of Quartermaun.;* revolver,/,to say absolutely that he had given the revolver to Quartermain hut no ammunition with it Till . that was done counsel said that avenuo -iad.not. been closed, and alleged'there was still a possibility of Quartermain being 'responsible.' . Tho blow from the handcuffs next camo under review, and counsel pointed — out that the first thing the police would ha ve done when accused was arrested \ was to look for a mark on his face, or any other scars on him. ■ But no ovi- ' ' denco whatever had been given on tnai point. .The. slightest mark found would •Lave been surely mentioned by the :polico. But they were silent. Sergeant Maguire's statement made it clear that tho assailant was wearing a hard hat; if so, then the cap found had no significance. After leading at length with the ; weighing of the bullet, counsel went on to say that it had to be proved absolutely that bullets found in Powelka's revolver. were identical with that extracted from the body -of deceased. That was the main strand in the ' Crown's rope. If that went then the rope would go too. The Police Impugned. : The next point dealt with was the Richards incident, and counsel considered it peculiar that the police never looked, for a man with a scar on his face. Regarding the "gallant arrest" of -accused, counsel considered there -was nothing gallant at all about it. Ac- : , . cused was asleep at the time. He was worn out with long travel and the stout he had drunk had sent him into a sound sleep.: If accused had been the desperado he was made out to be, he would not have been arrested so easily or without bloodshed. Continuing, counsel said that in working up tho defence he had received every consideration from Detectives Cassells and Biddells, '■but he had to protest against what he termed the gross unfairness of the arresting police in questioning accused when they knew he was to be charged witlr murder. Counsel did not think the jury would believe for one moment that accused had made the. remark attributed by the police.

MR. LOUCfiNAN'S ADDRESS. . Counsel for tho prosecution tlien addressed the jury. Mr. Moore had stated that ho would bring cvidenco to show that Quarterrnain had purchased cartridges in Palmerston. Ho had, however, since recognised tho futility of adopting that course. • As to the key, it was common ground ■ that it fitted Mrs. Farland's lock; it was found on the accused. The cap found on the lawn was undoubtedly taken there by the man who murdered Maguirc; it came from Farland's. The third point in the central group of circumstances was that of the bullets, and all three pointed strongly in a certain direction. Counsel for tho . defence had argued that the presence of a boy's hat in Farland's had shown that the theft had been committed by a boy. But the logic of the thing was just the opposite. The person wno had come there did not' want a boy's hat, so he had left it and taken a man's in its i place.

Hampton's Credibility. Regarding Hampton's ovidenoe, counsel said he was with his learned friend when ho stated that before he saw tho man corning to hia house he had accused in his mind.' If Hampton had not seon The man coming he must havo invented the facts when he said that lie saw tlie man jump, straighten himself, and then put his hands in Ins pockets. . If he had invented them ho was an untruthful witness, and could not be' relied on in any particular. This incident seemed to be considered one of great magnitude by the defenoe, for a lot of evidence had been led to attempt to disprove Hampton's statements. Regarding the tests as to light mado, counsel considered it was extraordinary that those tests were not made at tho proper hour, but considerably latoi.

• Dr. Wilson's statement of Quartermam's account of the proceedings had 110 significance. Even if Quartermain had fired at the flash, as stated, it would have uo. significance .if thero was no connection between- Quarterniain's ammunition and the bullet found in the body. Dealing, with the-weighing, counsel "said that Tisdall's weighing of tho bullets in his own ■ scales and the weighing of the bullets in Leary's scales had agreed. Only two bullets bad been weighed in both scales —tho one taken from deceased's body and one from Powelka's revolver. Tho weights, Cotinstl submitted, were as far as they went conclusive. ;

The Richards episode next camo under review. Mr. Richards had told a consistent story throughout, and counsel for the defence had referred to the state of affairs prevailing at Terrace End at the time. The Key and Cap. This concluded the review of the defence, and counsel then turned to his own cast:. Tho central aspect of the matter was the. identification of Mr. Farland's key, the cap, and the bullet. The general appearance of the key with tho rust partly rubbed off enabled Mrs. Farland to speak to the key, consequently "the export frankly admitted that he would not like to say a person constantly using it could not identify it. Then Mrs. Wilson had been, asked about a key on a nail in her shed, but she had denied that it was there. Counsel pointed out that tho accused had no koy when lie. left tho cells in Wellington. Tho key fitted the lock from which it was missed. The cap was next dealt with., Robinson had no doubt that tho cap was his. It was missed from Farland's, and was 'found 011 the lawn. If the sergeant was right 111 saying his assailant had a hard hat, it was quite possiblo that he could also have had a cap. It was perfectly immaterial whether he was wearing a hard hat. It was not necessary to prove that the cap was worn by assailant. It was.only necessary to prove that it had been left by him.': The Fatal Bullet Not Quartermaln's. The bullets, were next dealt with. The weights taken yesterday showed that four bullets takpn from- L.C.-F. cartridges in Powelka's possession only differed in-one-grain, the.lowest being 82 and the highest 83. The; bullet taken from the deceased's body weighed 82 ounces, and wap entirely different ill every' particular to any of Quartcrniain's'; ammunition. Further there was the evidence of the scorched clothing, showing that the fatal shot must have bo<:n . fired at very close range and there! was no suggestion that Quartermain was at close range when he fired. . Counsel dealt further with the incident at Farland's, and laid down tile theory that as' soon as accused got away at Ashhursti he made liis way through.!the willows' along the riverbed, found Mmself in the- vicinity of Palmerston, and .being under the necessity of providing for his bodily- wants went to a handy pisoe, which happened to be. Farland's. '..Tile finger prints at Slattery's showed Kft was in tho vicinity of Farland's that night. Counsel was with Iris learned frieaid in tho breach of justice committed by a police officer in askuig an accused man questions. . But in the present instance this had not been,;,done, for Constable Thompson had clearly stated that he did riot know that accused was to be charged with murder' 1 when he asked him. the question "Who shot poor Maguire?" There was nothing to lead the jury to conclude that the story had been concocted by the constables. Counsel "asked was the answer to the question consistent - with guilt? If Sojr.it was-strong oorrobo.ra.tion of the other evidence. If not it did not in any. way weaken the other evidence.

HIS HONOUR SUMMING UP. His Honour commenced his'summing up after tho, luncheon, adjournment. The .case, lie said, depended on circumstantial evidence... Such evidence might be likened to a rope, each strand of of which, though not strong enough to .stand alone, might' still'' be strong enough to stand when "'the several strands .were together. Still, circumstantial proof of the guilt must be such as to exclude every possible chanco of the prisoner's innocence. Of the various matters entering into 1 the case there were one or two circumstances which were undoubted. .- One was that the late . Sergeant Maguire had been shot while in the execution of his duty on the night of April 10. "The Crown contended that Powelka' had fired that shot, and the dcfence was (1) that Powelka was not the man, .and (2) that there was -a reasonable possibility of Detective Quartermain having fired it, Dealing with the latter he' (his Honour) would point out,'there was . a strong body of evidence that Quartermain couid not have been the one who shot M'Guire —there was Hampton's evidence and then Quartermain's. Their accounts were not precisely similar, but they were substantially the same. Also from Maguire's evidencOj it seemed impossible that Quartermain had inflicteo the wound as Maguire was lying on tho ground at the time, and Quartermain fired at a man who was standing. Moreover, the condition of the clothing was of great importance, as it tended to show that the fatal discharge had been made at very close quarters. Doctor Martin had placed the distance as five feet at tlie very farthest, while Tisdall had sworn that the shot must have been fired when practically touching tho clothing, as it would not have scorched if fired at more than six inches distance. Another strong feature was the fact that tho bullet extracted from the body of deceased did not correspond with calibre of tlie detective's revolver. .

Judge Traverses the Crown Case, But, oven if they found that Quartermain had not fired the shot, thoy would still have many things to weigh before finding accused guilty. His Honour then proceeded to review the evidence of the Crown which claimed to trace the accused to Hampton's, all of which circumstances went to establish the probability of the accused's presence on the lawn on the night of tho tragedy. Respecting Hampton's alleged identification of Powelka on that night tlie jury had to consider three things: —(1) The honesty of the witness, and his Honour saw no reason to doubt the honesty of any witness in tho case; (2) tho opportunities of identification; (3) whether there was anything distinctive in the identification. Regarding the tests which had afterwards been made in the locality, it ,was unfortunato that they hod not been made at a time nearer to that of the hour of the shooting. The Marks From the Sorgeant's Handcuffs. ■ Concerning tho marks on the face of Maguire's assailant it might bo that llaguire had been mistaken about striking tho man with his handcuffs, while other evidenco was of such an extremely cogent naturo tha tit excluded the hypothesis that Powelka had recovered from those marks before bo was arrested. Then there was the fact that a man had stuck up Richards, and that person had a mark on his face, and it was a coincidence that that man had revolvers. Richards had sworn finally that the man was not Powelka. There waa also the man who had.been seen by Ashliurst people when he boarded or wanted to board their carts. Respecting the bullet question, the missile found in Maguire's Jiody correspond in type, character,-, and weight with tile bullets found in I'owelka's six-chamber I revolver.

Final Words to Jury,

His honour did not propose to go further; lie had placed the salient facts before the jury, and their duty was to consider that evidence 011 the whole, taking into consideration the matters which he had pointed out in the prisoner's favour, 11s well as those which weighed against him. "If," said his Honour, "vou have a reasonable doulrt as to whether the Crown had established the case against the prisoner, it is your dutv to acquit him. Yi 0 havo not in New' Zealand a verdict, such as in Scotland, of 'not proven,'- and our law did not allow, as the law of some Continentiil countries allows, to convict 011 suspicion." Jury Retire: Police Warn the Spectators. His Honour's summing occupied an hour and a half, the jury retired about ten minutes to four. In the time which intervened before they returned, Powelka's most anxious time was spent. He bore up well, but the strain, it- was observable, was telling .011 him, and lie went once quietly. Sub-Tnspector O'Donovan addressed the auditorium to the effect that, whatever the verdict, they were not to make ;inv demonstration.: Two hours after retiring the jury returned. .

The Finding. "Gentlemen, have you brought in a verdict?" said tlio Registrar, asking the formal. question. "We have," replied the foreman. : "What is your verdict gentlemen?" "Not guilty, sir." It was further stated that the verdict was arrived at on' grounds of insufficient evidence. "Let the prisoner be removed, and clear the Court," said his Honour, and the crowd filed out quietly. ■ Detective Quartermain Exonerated. Tho foreman then stated that tho jury wished him. to make a pronouncement that they exonerated Quartermain. • His Honour: "Yes, I tliink it is due to Detective Quartermain." The following was the written exoneration: "Tho jury unanimously agree in exonerating Detective Quartermain from all blame in connection with the shooting of Sergeant Maguire." His Honour said that he would forward that on to the Police Department. Powelka broke down afte,r the verdict was given, , and it was obvious his nerves were temporarily upset by the reaction. . He seemed to be- somewhat convulsed, and wept somewhat, but not at all violently, and his Honour directed that he should be taken into another room until ho had recovered. '■