LAW REPORTS.

Dominion, Volume 5, Issue 1287, 16 November 1911, Page 3

LAW REPORTS.

* . MOFFITT HOMICIDE CHARGE, LESSER FINDING.

RECOMMENDATION TO MERCY, SENTENCE DEFERRED.

Moffitt's ease was continued at the crim iual sessions .■ the Supreme Court yesterday. The Chief Justice (Sir Robert StouS was on the Bench when the hearing—a charge of manslaughter—began, the Court was crowded. Mr. T. Ncuve, of the Grown Law Office, conducted the prosecution, and Mr. A. L. Herdman appeared for Moffitt.

On the previous afternoon medical evidence and tbo evidence of several bystanders, who had witnessed the street occurrence, as between Moffitt and the deceased, Gunther, bad been tendered by the Crown. • Yesterday morning several more eye-witnesses were placed in the box. 4 i S ere ' Jonn Cu.iing, John Samuel iioole, Richard Thomas, and William Edward Clark. Detective Lewis gave an account of what tooii place on tho occasion when lie and -Detective Andrews had interviewed the accused. Mr. Herdman's Defence. Mr. Herdman, in indicating the line of defence, stated that he would put Moffitt m ™| w>s, and it would then be seen that there was not a great deal of difference between his story and the evidence ot the witnesses for the Crown. After lurther indicating the lines on which evidence would bo led, Mr. Herdman added that, enough no one could help sympathising with the unfortunate man "who had l on i , • nevertheless the young man, who stood m the dock charged with such a serious charge, was also to'bo sympathis- I cq with. Mr. Herdman then called his witnesses.

Wallace Jolm Eowc, of the firm of Eowe and fcons, gram merchants, stated that t,L? f 'ho occurrence on the mght of October 31. He had been standheard Moffitt repeatedly tell Gunther to * G ! ln f i »er did not go, but raised his hand to strike. Moffitt, however, was too quick for him and got the first blow in. Whether Moffitt actually struck deceased or merely pushed him he (witness) was unable to see. It was quite possible VnL£ untae r mig , ht have after Moffitt s hand reached him. Moffitt did just what witness himself would have dono in a similar case. His Honour: You are not tho jury or enough to answer questions and not to express opinions. To Mr We: At, |he time he was standing behind Gunther, and a little to to side, but was not sure whether it was the- kit or the right side ,„,l'n! leSs i V 1 '''"Crated the position, and placed himself on the rHit it ward James Phillips, overseer of machinery at the Government Printing cTaracter™ eV,dCMe aS to - Moffitt ' s S°° d

"What! A Drunken Man Came into the Hotel!" Thomas Thompson, cleaner and presser, ia Hawker Street, stated that, at 9,10 on the night of October 31, ho had been Wh;i ( P nva i t6 ', biu ; of the Ailjo, ' t Hotel. \\ nilc there lis hud noticed (iuuther come in, and all backward while doscendiii" certain steps leading down into the bai" Un that occasion ho seemed • to strike ■■ni k • Ho was ccitaintv ■ drunk, the Chief Justice: Wh.it, a "drunken man came, into the hotel! For what purpose? Did he get drink? ■ Witness: He demanded a glass of beer, but the barmaid reiused to serve him =i,.m , Hoilo JlL r: , Vcl ' 3 ' > ve!l - l illD " «o shall have the barmaid here. In answer to Mr. Neave, witness went 911 to state that he had seen Gunther in the Duke of Edinburgh Hotel at 5 minutes to 10 o'clock, and ho had also noticed, him outside after the hotel closed lo lns.Honour: He identified Gunther ou account ot a Panama hat which he vas wearing. He had bad occasion to .notice Gunther particularly because the latter, on being refused drink by the barmaid,, had invited witness to "have a drink. Moffit Enters the Box, Edward Francis Alofiitt, the accused then went into tho box. Ho stated that ho was 21 years of.age, and had been employed at tho Government Printing Otbco for eight years. His father was (lead, and ..witness and his brothers sunported iheir..mother. He then gave his version of the occurrence on tho night oi October 31. Gunther had asked Clark ',".< ~w " n ess, to g0 rouD(l the corner ol Willis Street to have a drink with him Upon witness refusing to go, Gunther became abusive, and threatened to "punch witness on tho; nose." He pushed Gunther s hand away once, but, as Gunther raised his hand to strike again, witness tolt sure that .ho would be struck, and as a defensive measure, he pushed Gunther under tho chin. Gunther thereupon fell with a crash, and witness, becoming very "fldghteuod, ran away. To Mr. iNeaye: He did not want to go away to evade Gunther by. quitting the corner, as he expected to'meet a young lady (coming from the "pictures'') at the tram stopping-place. If he, had evaded Gunther by walking along Manners Street ho would not perhaps have, been able to keep tho appointment. Afterwards, when Detective Leivis interviewed him, he was naturally very excited at tho death of the man. and could not remember everything. He had never dreamed of such serious consequences happening. He did not "go in for uoxiiig." At the close of the evidence the boots worn by deceased on the night of the affair wero produced. Addresses and Finding. Mr. Hordman, in addressing the jury, drew attention to tho facts that the lieots had sprigs on the heels, and members of tho jury would know that it was an easy matter'to slip on a pavement while it earing such boots. In reviewing the evi-

dence, Mr. Herdman went on to remark that no witness had stated "that lie i.ail actually heard the sound of ,•* blow. It almost seemed as if they had assumed that a blow had been struck merely because Gunther had fallen heavilv. The jury should consider carefully, the evidence given by Dr. Fyffein weighing the question as to whether Moffitt was rcallv responsible for the man's death. Counse'l

then referred to tho definition cf an assault, and contended that Moffitt was (in self-defence) quite justified in what he had done. He was a young man, and could not be expected to show tho same mature judgment as a person 30 or ifl years of age.

Mr.. N'eivc, in Teply, submitted that provocation had not been proved. The Crown had established the assault and tho onus of proving that an act prima facie, unlawful, was, in the circiimstances, lawful, rested with tho defence. Mr. Xeavo

was making further reference to the question of provocation when his Honour remarked that .the defence was not relying on provocation, but on self-protection. Mr. Hcrdjnan agreed that that was the defence.

Sir. Xeave,, continuing, submitted that tho balance of the evidence supporter! tho viow that. Gunther did not threateu accused. In regard to the evidence cf Dr. Fyffe and the theory thero put forward, counsel contended that the evideuce left them without a basis for that theory.

His Honour, in summing up, informed the jury that, if they were satisfied that the accused had unlawful}- struck Gmither, but that the hlow did not cause death, then they could find him guilty of assault causing grievous bodily harm, or of common assault It was the duty of tho jury to see that accused received a fair trial. They had nothing to do with tho question of punishment. That was a matter for the Judge. He had no doubt that, when the accused struck Gunther. bo had no thought of killing him. Tho Crown had never suggested that. His Honour did not know, why tho question of boxing had been introduced unless it was that some of our young men, instead of devoting their time" to study, took up boxing. After reviewing the evidence and referring to the defences set up, Ins Honour said that nothing would excuse Moffitt for striking Gunther, if he (Moffitt) could have cot away.

the jury retired at 1.5 p.m.. and returned just after :) o'clock They found the prisoner guilty of assault, 'causing grievous bodily harm, and strongly recommended him to mercy.

Passing of sentence vac deferred until Saturday morning.

SERIOUS CHARGES. NOT .SUSTAINED IN COURT. A young married man, named William Jc-epn ilwane, J,,, iiiiuiiiriMiit. wha, ihconling t„ hi- own sliiii'iiii-iit, bad I>-<»n "nployed ,„ the l-uiluays. was nbwd in m m H*. il, '\V:f>- charges of indecenev. ->!!•• J. M. \\ill,ii'd ;ipurni'pil fur the accused, who plcnilfvl not puiltv. Tho Court was cleared during (lie hearing uf Hie case.

I he jury reiiroil at .Vio p.m., and retiiMUMl in twenly miuules with a verdict f»l Not guilty.- The prisoner was iii»charg(;ti, ami ""■■ Co " rt adjourned until 10 o clock this morning.

TRIAL DEFERRED. • PRISONER'S STATU OF HEALTH. ; . The case of George Alfred Tracev, who 13 to appear this morning on six charges . or alleged theft, will | ;c set back until . next session, as the prisoner is not in a lit stale of health ta undergo trial. The case was mmtioncd vesterdnv, and adjourned until to-day so that the bail might be renewed when the accused is charged. Mr. T. M. Wilford appeared for Tracey. HOTEL APPEAL. THE CONVICTION HE BARRETTS-. An appeal case—Williams v. Jones—was heard m the Supreme Court vest?rday before Mr. Justice Chaoman. 'This was ai: appeal of Susan Doores Williams against a decision, of Mr. \V. G. Riddell, 'S.M., . who, on July 1, 1910, had convicted tho appellant of permitting drunkenness on licensed premises, Barrett's Hotel. Mr. A. AY. Blair appeared vesterdnv for tho appellant, and Mr. H. H. Ostler for tho respondent. Tiio appeal was made on the grounds that die decision was oi raucous in point of law, and as to the findings of fact, the contention being that there was no evidence of permitting drunkenness or supplying liquor. After hearing argument, his Honour reserved decision.