SUPREME COURT.

Globe, Volume III, Issue 260, 12 April 1875, Page 2

SUPREME COURT.

. * CRIMINAL SITTINGS

Saturday, April 9. (Before His Honor Mr Justice Williams.) THE LYTTELTON MURDER. The following is the full report of Mr Joynt's speech on behalf of the prisoner, and his Honor the Judge's summing up of the case. Owing to the lateness of the hour at which the case was concluded on Saturday we were only enabled to give our readers the verdict", of the jury. Mr Joynt said it had now become his dutv to offer a few remarks upon the evidence led by the Crown in this case. He need not remind them that the result of the verdict of the jury might be the death of the prisoner, they would, he believed, give all the care and atti ntion possible t j the case. No one could dispute that the unfortunate girl had been most brutally murdered, and that the murd rer was actuated by the foulest and most diabolical motives. He might say that there were one < r two points in the evidence to which he would refer as bting in his opinion inconclusive. First, he thought, that the evidence as to the knife was inconclusive, and that the Crown had not led evidence to show the possession of the knife. Then, again, as to the identity of the child. The only evidence of that was the mate Allen, and even the captain, Russell, differed as to the colour of the dress. Now, Captain Russell had every reason to notice the girl ; he spoke of it before the jury; yet he was not led to give evidence as to identity. Therefore he concluded that he was justiiied in saying vhat there was a possibility of the mate Allen b iug mistaken. There was one thing about this evidence which he desired to notice, and that was the evident animus with which this man—the only witness as to the identity of the girl—gave his evidence against the prisoner at the bar. Therefore, he thought that his sole evidence as to the identity of the girl on the Saturday night was, to say the least of it, v>pen to doubt. He begged the jury to consider the evidence on tuis part of the. case, which he considered weak and inconclusive. Now, a great deal had been said as to prisoner's clothts. A man was in custody—or at any rate under the surveillance of the police notwithstanding the evident desire of Chief Detective Feast to mislead the jury by saying that he rode in different carriages of the train, but not stating that he had a constable in the same carriage with him. Well, they found a boy stating that the man who was first arrested was very like prisoner at the bar, and like one he saw with a girl on the Saturday. Sergeantmajor O'Grady said that the cut of the beard and the colour of the coat worn by the first man arrested was similar to the prisoner at the bar. Hence it might be that the witnesses had been mistaken as to the identity of the prisoner, as the jury would recollect that the witnesses for the Crown spoke strongly as to the coat woru by the prisoner. Respecting the admission of the prisoner as to his wearing the clothes on the Saturday, he might say that no evidence had been led to show when it was, as the prisoner had been twice ashore. Then again let them look at the clothes. There were hundreds of working men or seamen who wore clothes similar to them, and it was difficult to identify them, particularly when they were common clothes, and soiled such as these were. Now, let them look at the evidence on the question of theclothes. Missßouse told them that shecould give an accurate description of the apparel worn by a man who she only saw passing the window for a moment. She did not alom say that they were like the clothes, but swore positively to them. He (Mr Joynt) could not help thinking that the very pardonable feeling of indignation aroused in Lyttelton by this atrocity had to a great extent biassed this young girl's evidence, as it was impossible for a young erirl to have told in a brief glance like that the apparel and personal appearance of a man. Then Mrs Toomey appeared to him to be very undecided as to the identity of the prisoner. The evidence of the witnesses as to the clothes was not conclusive. The coat, it would be observed, was found at the bottom of the bag, thus proving that, it was some time prior to this time that the coat was worn. Then as to the vest, the witnesses swore that he had on this waistcoat, while Captain Russell distinctly swore that the vest belonged to him. As regarded the occurrences of the 9th, they found that the men got their money at the pay table, and they found that Percy was not fit to be trusted with the whole of his money. Now, how absurd it was for this man to say that 1 he prisoner said that he would get a girl or cut her throat or her weasand. What sense was there in that remark ? Besides this, the jury must remember that there was a feeling of resentment between Percy and the prisoner. He contended further than that, that the witness Percy was drunk. He was never seen by the captain or the mate, and the inference was that he had gone off and got drunk. Yet he comes and tells the jury that the prisoner, who had just told him that he wanted nothing to do with him, and who he was going to knock down, made such a statement to him as he had sworn to. Then, again, with regard to the killing of the sheep. It was true that there was evidence led by the Crown that there was no sheep killed on board the Canterbury, but the Crown never inquired whether any sheep had been killed by the prisoner on board the Cleopatra. Then again the Crown did not produce the man who came ashore with the prisoner and left him at Parsons' Hotel. That man could have given valuable evidence; he could have told them when the prisoner left the vessel, how the prisoner was dressed, who he joined when he came ashore, but he was not brought forward. Serjeant O'Grady told them that he might have had a conversation with the man, but would not swear either one way or the other. The police, he contended, should have brought this man forward But while he said this, he must say that the police deserved very great credit for the care and trouble expended by them upon getting up the case, and attempting to bring the murderer to justice. As this was not done, the inferencelefton hismind wasthattheevidence of this man would have thrown a doubt upon the other witnesses for the prosecution. Now as to the identification of the knife, his learned friend had spoken in terms of high commendation of the evidence given by the lad Sheehan. Now, despite the sharpness of this he was keen as a razor—he tripped when he said that the prisoner pulled out his knife to look in his pocket to see if he had money to send for beer for the men. Now there was only one man in the house, and when spoken to about this the boy said perhaps he meant his mother, He

asked the jury to dismiss from their minds the evidence of this boy, who swore positively to the knife from a moment's scrutiny. So with regard to D'Arcy ; he swears to the knife, but what did they fiod, why, that he was so dubious of his ability to identify the knife, that he made a private mark upon it. Then again the only opportunity that Percy had of seeing the knife was some five months back, when he user! it for 'ome short time peeling potatoes. He asked the j'.iry, therefore, to difcr-jdit the stories told by Sheehan, D'Arcy, and Percy, as to the identity of the knife. The findin of the knife in the coal tub was not at all evidence ; if the prisoner wisheo to dispose of the knife, would he not have thrown the knife into the water of the hirbor, where it never would have been found. So, too, with regard to the clothes, which the Orown wished the jury to believe had been thrown over by the prisoner. Would the prisoner have thrown over his in* side flannels only and retained the only clothes which could convict him, upon which, if they believed the Crown, were the stains of his crime. But what did they find? Why that the clothes were in the bag belonging to the prisoner, which was handed to the police by the prisoner as soon as he was asked for them. Now, as regarded the blood on the clothes of the prisoner. If the blood had got on to the clothes on the Saturday it would have been fresh on the Monday, but they had the evidence of Dr Powell that the blood was dry. They would recollect that the prisoner had to assist to bring on board a half of a bullock, which Captain Kussell said was fresh killed, while Allen, whose evidence must be received with great caution, stated it was quite dry and lnrd. Now, the day before Christmas the prisoner was handling a large m«s of meat wet with blood, and it was perfectly possible that the blood might have got on the prisoner's clothes from the handling of the bullock at the Pelorous Sound, as Captain Russell swore that the m"at had been killed that morning. He (Mr Joynt) wanted the jury to dismiss from their minds any feeling as regarded the statement made by Captain Russell with respect to the case at the Buller. The learned Judge would tell them that the hearsay evidence was perfectly unreliable, the more so as it came from the mouth of the mother of the girl. If the prisoner had done this no doubt he would have been arrested. Now, looking to the fact that Captain Russell had a special reason for looking at the girl, and had done so, it was most remaikable that the police had not taken Captain Russell to the dead house and got him to identify the body of the girl. They bad heard the evidence of Dr Rouse as to the gorse prickles. In answer to a quesfrom himself (Mr Joynt), Dr Rouse had stated that he had confined his researches to gorse prickles alone and had not, as he contended he should have done compared other descriptions of prickles with the gorse. It was quite as easy for the prisoner to have got those prickles on the Sunday as on the Saturday night, as no evidence was given as to where the prisoner was on the Sunday, He was glad to say that no evidence had been adduced that attempt had been vnade to violate the girl ; but it seemed to him that the uncovering of the limbs of the girl which had been spoken ot, must have been 'observed by the boy who first found the body, but such was not the case ; it was only after the constable, Wallace, came up that the discovery of the body was noticed. Now as regarded the scratch on the prisoner's face, when Mr Feast in that poetical manner spoke of the brand of Cain, the prisoner explained it by saying that he had got it on board the ship. He did not think it necessary to trouble the jury on any other points. The parts of the evidence alluded to by him were what he thought were the weak points of the case for the Crown, and the jury must be satisfied beyond a shadow of a doubt that the prisoner was the guilty man. It would be observed that the identity of the prisoner was not clearly established, as the witnesses differed as to the color, and not only so, but they must remember that a boy had said that the man first arrested was like the man he had seen with a little girl. He would not impress upon the jury the responsibility of this question, that the life or death of the prisoner at the bar rested on the verdict, and that the blood of the prisoner would lay at the door of those who had sent him there if their verdict were not such as would be in accordance with the facts and guilt. But he knew that their verdict would be a just one, but he wanted to impress this upon them, viz, that already one death had taken place, and that it was necessary that every point should be weighed by them, so that another death would not take place of an innocent man. He might have made a sensational defence; he might have brought before their notice the numbers of cases in which men had been tried and found guilty upon evidence strong as human foresight could think possible, and yet after their being hung they found that either the real murderer had made confession, or circumstances had come out which proved the innocence of those who had unjustly suffered. But his duty was not to conjure up to them any horrors on this score. He simply begged them to give the case that careful attention he felt sure they would do; that they would consider all the points that His Honor, the Crown Prosecutor, and himself had brought before them, and upon this return their verdict. He left the case in their hands, feeling confident that they would do so, and that he had done all he could on behalf of his client.

His Honor summed up to the jury. He said the issue which they had to consider in their verdict was, if they thought the evidence led to the conclusion that the girl waa murdered by the prisoner they must find him. guilty ; but if on the other hand they had a reasonable doubt that the prisoner was the man then they must acquit him. Let them now trace the actions of the prisoner during that day. [His Honor then proceeded to comment on the evidence given by the various witnesses as to the movements of the prisoner during the Saturday afternoon, reading extracts from the evidence as he proceeded.] He might say that he joined with the prisoner's counsel in the regret expressed that the Crown had not produced the man who left the vessel with the prisoner and D'Arcy, who was the last person in whose company the prisoner was. It would have been far more satisfactory to them had the Crown produced this man. Commenting on Mrs Toomey'a evidence, he might say that there could be little doubt that the man whom she savr coming out of the Parsonage garden was the man who had committed the crime. The jury would recollect that Mrs Toomey described the appearance of the man, though not his countenance, as he was too far off. Skeet's evidence went to prove that he saw a man coming out of the Parsonage grounds, shaking his coat, as if he had been lying

down. As was the case with Mrs Toomey, Skeet had an idea when he first saw the man that he was tipsy. The time of the man passing Skeet's house was fixed by the fact that he deposed to his going by after the train leaving Christchurch at 5.20 p.m. had come in, so that it would be between 5.45 and fi p.m. that the man went by. He would also point out to the jury that Skeet recognised the prisoner when he weDt into the Mitre at once. There could be no doubt that the evidence of Skeet was very strong indeed. The fact that there was blood on the prisoner's cheek, or a scratch—which, as regarded Skeet, was one and the same thing—was borne out by Rußsell, Sergeant O'Grady, Dr Rouse, and Detective Feast, who all observed the scratch on his face. He would point out that on all questions of identity p rsons were often misled. They must see this in the ordinary routine of life, as two or three people giving an account of the same occurrences would vary very much. What they had to consider was whether the evidence as to the identity of the prisoner was conclusive, and it was for » the Jury to consider whether the statements of these witnesses agreed in the main points, and only differed where the common observer might reasonably be expected to orr. Now, as tw Russell's identification of the prisoner, that, he thought, was complete as to the prisoner getting into the train, and also as to tlx- hlood on his face and hands. There was quite lime, he thought, for any one walking in a hurry like the prisoner was described to have been, to have caught the 6 p.m train. He did not think the evidence of the boy Sheehan was material; but U'Arcy, it would be remembered, spoke positively of the prisoner having a knife on board the Cleopatra. The great question was whether the girl seen with the prisoner by Allen and Captain Russell was Isabella Thompson, the girl who was murdered. Now the counsel for the defence pn this point had called attention to the animus existing between prisoner and Allen. Of this he would speak presently. As regarded Captain Russell j.e must ask the jury to discard from their mind any idea as to the event spoken of by Captain Russell as having taken place somewhere else. This it would be unfair to import into this case, as all they had to consider was the surroundings of this evi nt. All that Captain Russell swore to in his evideuce was that she was a little girl in a light suit, and there was no attempt on the part of the Crown to identify the girl at the dead house as the one he saw with the prisoner. Generally respecting the evidence of Captain Russell all he thought that they could take were broad facts which no one could possibly mistake. He now came to the evidence of Allen, which was most important; more especially where he stated that the prisoner overtook the little girl, and walked alongside of her. [His Honor then read the evidence given by Allen.] That evidence being that of a perfectly independent witness was very streng indeed, that the girl seen with the prisoner was the girl Isabella Thompson. Regarding the animus spoken of by the prisoner's counsel, it was for the jury to consider whether the evidence led was sufficiently strong to warrant such an hypothesis as had been raised by the prisoner's counsel. There had been a good deal of evidence as to the prisoner's clothes being stained with blood. The evidence of Dr Powell was that the blood was that of a mammal, and the prisoner explained the presence of blood by saying that he had been killing a sheep. The defence commented on the fact that though no sheep had been killed on board the Canterbury, yet there might have been sheep killed on board the Cleopatra; but D'Arcy, who was with the prisoner, was called, and it was quite open for the defence to have asked the question. Now he wanted to point out this—that none of the witnesses spoke of seeing blood on his clothes before the time of the murder. As to the knife the prisoner carried, two or three of the witnesses called had spoken of the knife produced. Whether the knife produced was or was not the one, there was no doubt that he had one very much like it. If they believed the evidence of the boy Sheehan, then they had the fact that on the Saturday night the prisoner had the knife in his possession—a knife which, from the medical testimony, was similar to the instrument used to do the murder. As to the medical evidence regarding the gorse, they heard what Dr Rouse had told them on this subject. He thought, perhaps, it would have been more satisfactory if the Crown had got Dr Rouse to have got the thorns of other plants, and place them on a microscopic slide for comparison. Dr Rouse's evidence as to the prisoner's coat being found with thorns in it, gave additional weight to the revelations of the microscope. The day after the murder a man was taken into custody on the charge, and a boy stated that he had seen a man like the prisoner in company with a girl on the Saturday afternoon. This, he thought, told as much against the prisoner as for him. He did not attach any weight to the underclothing found in the water. If the prisoner had intended to dispose of the evidences of his crime, he would have put the clothes found in tiis bag overboard . The summary of the case was this: — At a little after five o'clock the prisoner was seen going towards the scene of the murder with the girl, that shortly afterwards he was seen coming towards the railway station, and that the place where the body was found was full of gorse prickles, and that the body of the prisoner, and that of the deceased also, had a number of prickles identified as similar. As regarded Percy's evidence, heithought that it was just what a sailor in that state would have done. The words said to have been used by the prisoner to Percy were very peculiar, and he noticed that he adhered to the statement both in his evidence in chief and cross-examination. This statement they would see, if they believed it, showed a malicious intent on the part of the prisoner. As to their duty as jurymen; if the evidence and facts laid before them were such as to exclude all reasonable doubt of the prisoner's guilt, then they were bound to find him guilty. If, however, on the other hand, their opinion of the evidence was that there was a reasonable doubt of the guilt of the prisoner, they were bound to acquit him. They must, however, remember that to acquit upon light or frivolous grounds was as much a violation of the oath of a juryman as to convict against evidence and against the facts. They would now be pleased to retire to •onsider their verdict, taking care to dismiss from their minds anything they might have heard respecting the prisoner elsewhere. The Foreman of the Jury—Your Honor, the jury wish to know whether they are to take into consideration the case spoken of by Captain Russell in his evidence as having occurred at the Buller ?

His Honor Certainly not. Gentlemen, you must dismiss from your minds everything

that you may have heard respecting the prisoner at any other time, except as refers to the case now before you. The jury then retired at 3.55 p.m. to consider their verdict.

At 4.5 p.m. they returned into court. The Registrar—Gentlemen of the jury, have you agreed upon your verdict 1 Do you find the prisoner guilty or not guilty of the offence with which he stands indicted ? The Foreman —After a careful consideration of the evidence, we find the prisoner "Guilty." On the delivery of the verdict of the jury, the prisoner was quite unmoved, but a buzz ran through the court, which was crowded to excess.

The Registrar John Mercer, you have been indicted for the wilful murder of one Isabella Thompson, and on your arraignment pleaded " Not Guilty," and for your trial put yourself upon your country, That country has found you guilty. What have you to say why the judgment of the Court should not be passed upon you to die according to law ? The prisoner, who spoke in a firm voice— I don't blame the jurymen for v-hat they have done; bui if fifty jurymen were to say I was guilty, I should still say I was not. I never killed that child. You can do what you like with me. In answer to the Registrar, the prisoner said that his age was thirty-one. His Honor—Prisoner at the bar, after a long and careful trial and an able defence, you have been found guilty by a jury of your countrymen of a most brutal murder, committed by you, a strong man, upon an innocent and unoffending child. You must know that as you showed no mercy to her, so you can not expect mercy to be shown to you in this world by the society you have so outraged. The judgment of the Court is that you, John Mercer, be taken from the place where you now are to the prison from whence you came, and thence to the place of execution, and that there in manner and form by law prescribed, you be hanged by the neck until you are dead, and may God have mercy upon your soul. The prisoner was then removed, and the Court adjourned until 11 a.m. this day. Monday, April 12. The criminal sessions of the Supreme Court was continued this morning at 11 a. m., at which hour his Honor took his seat on the Bench. OBTAINING GOODS UNDER FALSE PRETENCES. Thomas Weir was indicted for having in the month of February, 1873, falsely pretended to one Kobert Wilkin that he had 2000 bushels of oats for sale ; that he had a farm at the Selwyn, and that he had sixty acres of oats, and that by means of such false pretences he obtained from one Kobert Wilkin 250 corn sacks. The prisoner, who was undefended, pleaded "Not Guilty." Mr Duncan conducted the prosecution on the part of the Crown. Mr John Bligh was chosen foreman of the jury. The facts of the case were as follows :—ln the month of February, 1873, the prisoner went to Mr R. Wilkin's office in Hereford street, representing that he had a large quantity of oats to dispose of, and that lie was a farmer in a large way of business. On the faith of these representations Mr Wilkin gave him a number of sacks, in all 250, for the purpose of containing the oats said by the prisoner to be possessed by him. The oats said to be in possession of the prisoner were purchased by Mr Wilkin, and 250 corn sacks delivered to him. The oats not coming forward, Mr Wilkin made enquiries, and found there was no one of the name in the neighbourhood. Ultimately it was discovered that the prisoner had disposed of the sacks at one of the auction rooms of the city, and pocketed the proceeds.

Evidence in support of the indictment was led by Mr Duncan, Mr Wilkin and the storeman deposing to the delivery of the sacks to the carman, and the latter to their delivery, according to prisoner's orders, at the White Hart Hotel for the prisoner. Mr Thos. Preece also gave evidence as to having bought a number of corn sacks—2so—from the prisoner, in March, 1873. The jury, after a short retirement, returned a verdict of " Guilty." Shortly after retiring, the jury returned into court to ask the name of the gentleman with whom the prisoner alleged he had grain transactions. The prisoner stated the name of the person with whom he had dealings. His Honor sentenced the prisoner to twelve month's imprisonment with hard labour. THE GRAND JURY. The Grand Jury re-assembled at noon, and proceeded to consider the case of Regina v Gustavus Fox, bestiality, and after a short consideration returned into court with "No Bill." The prisoner was then discharged. The Grand Jury then retired to consider a bill presented in the case of Regina v James Campbell for forgery and uttering, in which they returned a true bill. The Grand Jury, who made no presentment, were then discharged. FORGERY AND UTTERING. James Campbell, alias Cook, was indicted for having on the 3rd April, 1875, forged and uttered a cheque for £l3 7s 6d, purporting to be drawn by Henry Joseph Hall on the Union Bank of Australia. The prisoner pleaded " Guilty." The facts of the case were that prisoner went to the shop of Mr Cohen, pawnbroker, and purchased goods there to the value of £i Is 6d, tendering a cheque purporting to bf. drawn for wages by H. J. Hall, on the Onion Bank of Australia, Christchurch. Ultimately the cheque on presentation was found to be a forgery, and the prisoner arrested ; Mr Hall stating that he had not authorised the prisoner, who was in his employ, to draw any cheque. The prisoner was also indicted for having been previously convicted at the sitting of the Supreme Court, on the 3rd September, 1868, and 6th December, 1870, for felony—to which he also pleaded " Guilty." His Honor sentenced the prisoner to penal servitude within the colony for seven years. On the application of Mr Duncan, the sum of £5 found on the prisoner and the clothes purchased with the forged cheque were ordered to be given up to Mr Cohen. Mr Duncan said that the police had been unable to arrest John Ray, and therefore the the time of the recognizances of the witnesses had better be extended until next session. His Honor granted the request. The Court then adjourned sine die.