SUPREME COURT.

Evening Star, Issue 3238, 7 July 1873, Page 2

SUPREME COURT.

CRIMINAL; SESSION.

Monday, July 7. (Before His Honor Mr Justice Chapman.) His Honor took .Ha seat* on ike bench at ten o’clock. 1 , The undermentioned' gentlemen having befen sworn .of the Grand Jury Messrs Henderson LaW (forkmankJ. X- Butterwbith, H. Calder,‘W. S. Hoiijglas, Jimes Galbraith, , • Gray,. Alex. Oumi. CUak. R. EEoiwden, R,)Howlmsop, damps Kilgour, A. H. Burton, George Matthews, N. J. B. Macgregor, James Booul&r, fi. Stey, Edmund'Snifth, and John M. Williamson—His Honor delivered' "the following charge Mr Foreman and gentlemen of the; Grand JLuiy, there are seven indictments to be presented, to yon on this occasion, and X am sorry to say that two of them-are of a aeriods character. The rest of the cases are of sucha nature that they will Require very little comment from me, because they relate to those ordinary offenbes against propCHy with which by tHa fcime you must be * very The firat v case to which I shall cill attention is that of William >Atkins ; land it is very peculiar in its nature. The man is imlioted for murder; and undoubtedly, if all the facts come out . tp. your satisfaction, and to the satisfacftdn ultimktely of the petty jury, the leading features of the case <will amount to the legal crime of murder. What the Crown proposes to prdte by the witnesses that will be sent before you amounts to this : a vfoman, whose' name was Eliza Mains, visited the house of the prisoner, who is a carpenter, living at or near Clyde, and there she was ultimately found in a state of helpless intoxication. What is imputed to tlie prisoner is that be made her drunk for the purpose of haying sexual connection with her. Novy, under ordinary circumstances, supposing she had not died, that' alone 1 Would cottrfitute rape. If death ensues under these circum-stances,'-tob 1 having * intentionally made her drunk, it would Amount to murder. The foots show, according to the hypothesis pf

■ fc ■ ‘ the Crown, that her death was cn need by two circumstances combined—both the act of the prisoner, tbo one giving her large quantities o! brandy to bring her into a state of intoxication; the other that bo had sexual con section. If from tbo combination of these two, both of them unlawful Acts, you are satisfied that death ensued, then it will con stitute murder. Under another aspect of the case it would constitute manslaughter. We will suppose, for instance, that you aro not satisfied the intoxication was intentionally produced by him for the purpose of committing a rape. We will suppose that the evidence leaves a doubt Upon the point, but shows this: that she herself voluntarily produced this state of intoxication, or, in simple words, was drunk; and that the prisoner, taking advantage of her under those circumstances, had connection with her. That undoubtedly constitutes rape. The distinction for the purpose of this indictment between manslaughter and murder will be this; no jury in the world would suppose that having had connection with, the Woman in a state of intoxication, the combined effects of both haying produced such a state of the brain as to cause death, no one would say he intended, to kill her; therefore, “ malice aforethought, n as it is called, would be stripped from the case. But the law as to manslaughter is this Although a man may have no intention to kill another, yet if death ensues in the prosecution of an unlawful act, then it constitutes manslaughter, . . . rtbink/therefore,"yod will under* stand the distinction in this case. I believe it is the intfution iof the Grqwu Presenter to send before you two bills: one for murdto, for manslaughter. Therefore, I Woold jtist givs yon this hint respecting them; that that degree of doubt wohld justify the pretty jury i u&dqtiitflng the prisoner of eVCn Chri mionr offence is just that degree of doubt which would justify the Grand Jury in finding a bill. Why ? Peoause it .ip the dnty of the Grand Jury to see that there is a. prima facie case made out by the Crown which is sufficient to call upon the prisoner to answer. Therefore, although* the Grand Jury may have some lurking dottbta in their own minds, so as to say that' iri all probability when this cash goes beforri the petty jury they will -give effect to that doubt, yet we, the Grand Jury, think the ease ought to g6 before the * petty leaving to bO determined by the petty jury all the ratuunstances which may operate in defence pr excuse of the prisoner, or which may tend to mitigate his offence. The otber case i*«f very great gravity, arid I am sorry to say thatrAlthough generally the degree of crime is diminishing, not only in this Province but throughout the Colony, this offence crimes very frequently before this Court;' ft irrapemporn-tha person of a giri of tender years. Consent or the absence of consent is of no' importance in this matter. I A child under ten years of age is by the: statute now in force in this Colony rendered I incapable of giving consent; therefore, if

Bbe did verbally or by her actions consent,' her giving consent is just as if she had not giyen it. The law disregards that consent. Tie Whole circumstances art that Witfifrai Duffy, the accused, was in a pnblic-hoUae, I, believe at Clyde', ! and in one of the; rooms of that boose a girl and boy, i both of tender years; Wf>re sleeping in bed.' The charge against Duffy is that he gqt| into bed with the children and committed n tape upon the person of the youag girl. The/girl will be called before you, and as far; a* I can glean.; from the depositions, hqtfi the victim of the violence; and tho boy, who; was with her, will identify the person qfi Duffy, and place it. beyond doubt.. Under! the rirenmatonocs* if penetration has- beenj completed,, it constitutes rape ; if not; com ! pleted. it is better to leave the petty jury to determine if there he any doubt as to penetration ; and it will bo competent for them; to throw out Hie indictment for rape, and find Hie prisoner guilty of attempt to commit rape. ; The other three cases are ordinary crimes against property, one being au indictment for obtaining money by means of false, pretences. . . -r - There are two cases, which are novel in their nature, that is toj say, novel so far as tbis Coleny is fcohfterned.j In the coarse of my experience here and my previous experience in another district in the Colony, I hsvonoverhad to try a case of the kind j and 1 da not recollect having seed in the newspapers of a case having befcn brought before any Judge ;of a superior Court in an y part of the Colony. Two per j sowl, Moote . and Colder, are indkted course each is a Separate offence—for a contravention uf the fiOfch.section of the Act regulating elections, or what is called personation. By this Act any peri soniWho ia guaty airing mm* t<j the legal questions put to him—to the ques| tions which are prescribed by the pjgyisionS of the Act—or of pepspnating another person j or of voting twice, is, j .by clausefiO, guilty of misdemeanour, which ispuniahabjfvaaevery misdemeanour is, by fine or impriaoomentor by both, according to the discretion of. .tjie Court. Both of these men went* to one of

the polling places in an election in this dis* trict, and represented themselves to . be som£ other person, and were given into custody. l briieve Hiat r pue pf them was identified on the spot as not being the man—though ', it is almost a bull lb call it identification, when the person is known not to be the man he represents himsclf~ to bo. 'i ho other was identified to be the man he is, and therefore cannot be the niatti he ; rej* presented himself to be. I think that oh the face of the depositions in these cases, which are short, you will have no difficulty ( in r coming' to the conclusion that there is quite a sufficient case to take the opinion of the petty jury npop. There is upon the Grand Jury aMr Calder, who, 1 1 understand, is nearly related to George Calder, one of the accused persons: he should’retire from! the Grand Jury when the case comes on. MURDER. On the application of Mr W. W. Wilson, bis counsel, the trial of William Atkins was postponed tiff to-morrow..