SUPREME COURT.

Evening Star, Issue 3633, 14 October 1874, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. Wednesday, October 14, (Before His Honor Mr Justice Chapman and a Common Jury.) His Honor took his seat on the Bench at 10 o’clock. THE ONEGO AFFAIR. Mr Stout : Before the case of Regina v. Dodd is called on, I believe it may be a most important question whether Dodd is a citizen of the United States of America or not; but in the position in which he is placed, no person here can testily to that fact. I therefore move, upon an affidavit which I shall read, that the trial be postponed in order to allow of evidence of that fact being produced to this Court. His Honor: Does it prove that he is a native of the United States ? Mr otout : No ; but he is a citizen of the United States. His Honor : Where was he born ? Mr Stout; He admits that he was born in the Colony of Nova Scotia. His Honor: He cannot throw off his status. Mr Stout: If the Crowa - cho 'ses to admit that he is a citizen of the United States I do not ask for a postponement of the trial. Mr Haggitt; How can I admit that when I know nothing about it ? Mr Stout; If you don’t admit it, I ask that evidence may be produced to prove it The affidavit is a joint one, by Peter Duneau and the accused. Duncan, clerk to Messrs Sievwright and Stout, deposes:— “That I have been advised and' believe that it may become an important question in the trial now pending against me, the said Charles Dodd, in this honorable Court, to prove that the said Charles Dodd is a citizen of the State ef New York, and a subject of tha United States of America” And Dodd for himself says :—“ That lam charged with the murder of one John Green, onboard the barque ‘Oneco,’ and that my trial has been fixed for Wednesday, the 14th day of October, instant. That I was born in Portuguese Cove, near Halifax, in Nova Scotia. That I left Portuguese Cove on the sth day of November, 1863, and have never been back there since ; that I was naturalised and became a citizen of the State of New York, in the United States of America, in resident in the said United States of America; that in otder to obtain the necessary papers and documenfs evidencing my naturalisation as a citizen of the State of the United Scates of America I shall require to send for them to the City of New York ; that the barque Oneco is a United States ship, registered in the city of New York aforesaid, and sailing under the flag of the United States of America ; that I am entered in the books of the s aid barque Oneco as a citizen of New York ; that I am a stranger in the Colony of New Zealand, and no one, so far as I know, in the said Colony can testify to my being a citizen of the State of New York, and a subject of the United States of America.” The cases are abundantly plain that the absence of a material witness is a good ground for postponement of a trial.—(Roscoe, 190-1: Archibald, 82.) ’ His Honor: There is no doubt about that,: but is the fact of his being naturalised material ? Mr Stout submitted that it was.

His Honor: The fact of his being naturalised does not prevent him inheriting or holding real property in England. ' Mr Stout: If the Crown chooses to admit, that Dedd is naturalised, I do not press for a postponement. Except that is done, I submit I ought to be allowed to prove it, for the fact may have an important bearing upon the case.

His Honor; T doubt whether the fsct is material; and it must be a material fact. Mr Stout : If it is not material, then I presume the Crown can admit it, and I shall have no objection to the trial being proceeded with.

His Honor : You want to include as one of the points in arrest of judgment ? Mr Stout: Exactly, your Honor. Mr Haggitt was sorry he could not consent to the application, to do which meant postponing the trial for ever, so far as the Courts of this Colony were concerned. Nearly all the witnesses against the prisoner, were seamen on board the Uneco, and it would be impossible to detain them and the vessel here merely for the prisoner's convenience until the papers re mired had been, sent for from New York, which would involve a delay of seven or eight months, at the very least.

His Honor i During which time the prisoner must lie in gaol, Mr Haggitt: Of course ;. but that is an objection I cannot urge. His Honor : But it is a point I can consider.

Mr Haggitt urged the objection that it would be impossible to keep the witnesses together during such a length of time that would necessarily elapse before the documents referred to could arrive here. He could not consent to admit as a fact, if it was a fact, that the prisoner was a naturalised subject of the State of New York, because he did not know whether it was a fact or not.

His Honor : The most important question for the prisoner is the fact that this occurred on board an American ship, Mr Haggitt : That of course I can admit, because there is no doubt, about it. But it seems to me to be entirely immaterial whether ho was naturalised iu New York or not. He admits in his affidavit that be is a British-born subject ; and a man cannot throw off his allegience to his own country by becoming naturalised in another. His Honor ; I don’t think he can. I will tell you, Mr btout, what I eonsider your best course is. Ido not intend to grant a postponement of the trial, because I think the fact to b<s immaterial; bub in moving for arrest of judgment, you can take advantage of it, having moved it. Mr btout repeated that if it was admitted that Dodd was a naturalised citizen of New York ou the date mentioned he had no wish for a postponement of the trial. But in a case like this, with such law points to be raised, it was his duty to the prisoner to see that every point was brought out. His Honor : You have good reason to ask for a postponement of the trial upon a material fact, but I don’t! think this fact material.

Mr Stout: If it is not material, I submit the Crown ought to admit it. Mr Haggitt: Hew can I admit what I don’t know ?

Mr Stout; Tn a case like this, where a man is seized on an American vessel, which is not like being found in England or in British dominions, I submit the fact requires strict proof. If it is not proved, and afterwards becomes a material fact, it deprives the prisoner of the benefit of it.

Mr Haggitt: I cannot contradict the affidavit, which must be used for what it is worth.

His Honor: You will understand, Mr Stejit, that I have refused the application on the ground that I think the fact is not material. I think place of birth determines his status. You may take advantage of this, If it is a mis-conception of mine on a point a law, in moving for arrest of judgment, though it does not appear otherwise than on my notes and in the affidavit. On you*

mere suggestion I have include! that doubt in the point raised. I should have stated a case for the Court of J ppeal, even if you did not move for arrest of jdgment. lam not quite sure whether a statement of the case would not bo the b< St m de of raising the whole question of law, upou woich 1 confess I have considerable doubt.

MrStf uc, upon the question of jurisdiction, was prepared to argue that the Court had none ; and said he held a strong opinion upon the point. His Honor: I shall not determine that point, but shail allow the case to go to trial, having made up my mind to state the case, whether you move for arrest of judgment or not. Supposing the prisoner ii found guilty, I sha 1 not take upon myself the responsibility of hanging him without the opinion of the five Judges. A t Mr Stout’s suggestion, bis Honor took a note that the jurisdiction of the Court was objected to. Charles Dodd was then placed in the dock and indicted with having, on September 17.wilfully, maliciously, and of bis malice afore thought, killed one John Green. Mr Stout drew his Honor’s attention to the form of the indictment, which did not aver that the alleged murder was committed at any place. His Honor ; Is it not mentioned upon the high seas. Mr Ha r gitt: No ; that is not necessary. Kis Honor ; No; I believe it is not necessary now, . The following were**th(fn chosen as the : J'*hn Qarratt (foreman), Peter Power, Peter Hrycei Charles Lorimer, Charles King, William Inglis, John Anaerson, DonahLMunro, Robert Sheriff, George Heads, John Hardy, arid Peter Dunop. I. J. Eagerty was challenged. - The Crown Prosecutor told the jury that if they believed from the evidence that prisoner maliciously killed Green,, it would be their duty to find him guilty upon the indictment as it stood ; if they thought he did not do *io maliciously, they might find him guilty of the lesser offence of manslaughter. Bartholomew James Henry, captain of the ©neco, repeated the evidence given by Him at the former inquiry, and added : Second mates on American vessels often take upon themselves topunish seamen without consulting the captain. When he was second mate he had done so. He did not think there was anything unreasonable in sending a man on the gallows for half-an-hour or even an hour, but he could not stand on them. An ordi* nary man could not stand on the skids on the night of the 17oh September. An acrobat might stand there, but not a sailor, especially bucli a clumsy sailor as Green was. ( aughter.) Mr Stout asW that the jury might be allowed to S'.e the gallows. His Honor did nut see the necessity for them doing so. Mr S out mentioned that he went on boird the Onecp after the evidence was given at Port Chalmers, and he thought it might widen the facts. . His Honor decided to hear the evidence. The Crown I rust cutor produced a photograph of the barque whh the gallows in the foreground. W itm as, on looking at the photograph, said that it looked like the deck of the Oueco. Green was sn the articles as— — Mr Stout objected, on the ground that the witness could not speak from his own knowledge as to what countryman Green was. His Honor told witness to send for his logbook. b The witness was not cross-examined by Mr Stout. Daniel Sharp, ordinary seaman, repeated the evidence given by him at the Magisterial inquiry. John White and George Campbell were also examined. [Left sitting.]