SUPREME COURT.

Globe, Volume VI, Issue 636, 3 July 1876, Page 3

SUPREME COURT.

CRIMINAL SITTINGS. Monday, July 3. [Before his HonorjMr Justice Johnston.] The quarterly sessions of the Supreme Court were opened this morning before his Honor the Judge, who took his seat at 10 a.m. The Court having been duly opened by proclamation, the following gentlemen were sworn as THE GRAND JURY. Messrs G. Thornton, P. Cunningham, R. F. Holdernesse, E, M. Templer, L. Caro, J. N. Tosswill, A. C, Bain, J. M. Heywood, A. 0. Knight, B. W. Mountfort, T. J. Maling, P. B. Boulton, H. P. Lance, R. M. Bovey, 0. Newton, H. H. Hennah, G. G. Stead, H. F. Knyvett, J. P. O’Callaghan, H. Selwyn Smith, Josiah Birch, W. Buss, D. O’Callaghan. Mr Josiah Birch was chosen foreman of the Grand Jury. THE JUDGE’S CHARGE. His Honor, in addressing the grand jury, said he was glad to be able to say that the calendar of cases before them for trial was not a lengthy one, containing for the most part offences of the ordinary kind met with in the various districts of the colony. Though perhaps they could not boast that they were entirely free from crime in the district, they had at any rate no very great reason to feel uneasiness as t& the growth of a criminal population amongst them. None of the cases would require at his hands any very great attention, or would give them much trouble, except perhaps two of those in the calendar—viz,9 ene of manslaughter, and one of arson. To these he would refer later on, and would now make a few remarks on the minor cases of the calendar. (His Honor then proceeded to comment upon the cases in the calendar.) He now came to the case of manslaughter, which was one of very grave importance, not only to the party concerned, but also to the public generally, and the evidence was such as would require their most careful consideration, to enable them to arrive at a decision as to whether or not a privia facie case of manslaughter had been made out. Of course, as they were aware, it was not their duty to try whether the person accused was guilty or not, but whether there was evidence sufficient to justify them in sending the case for further investigation before a petty jury. He was bound to say that this was a kind of case which it was right should be enquired into by a Grand Jury, because there had been no previous investigation in the ordinary way before a committing Magistrate, although an: investigation bad already been held by a coroner, and a coroner’s jury had given a verdict upon the matter. Under these circumstances there was a probability —or possibility—of a certain amount of prejudice being created upon the matter which ought to be guarded against, the more so as an investigation bofore a coroner’s jury was usually of necessity conducted in a more hasty and perfunctory manner than an investigation before the magistrates. The first general principle of law which he would lay before them was, that any one professing an art to the public is bound to bring due and competent knowledge and skill to the exercise of that profession or art, A person professing to practise an art, and who did not evince skill or competency, or take due care, was responsible to the party injured, and to the public, either civilly or criminally or both. As regarded the application of this rule of law to the practice of the medical profession, he was bound to tell them that there was no maxim of law better laid down or more amply illustrated, than that there was no difference in the responsibility of legally qualified medical practitioners and others not so qualified. The legislature of the colony, like that of most civilised countries, in the exercise of a wise vigilance for protection of the lives and health of the community, had made laws subjecting persons practising the medical profession without due technical qualification, founded upon -[he degrees or certificates of learned bodies, to grave penalties. But the law recognised no difference as to criminal responsibility for malpractices between persona technically qualified and others not so qualified; and a moment’s reflection would convince them that it would be extremely wrong that a man professing an art should be dispunishable for conduct which, had he been a legally qualified practitioner, he would have been punishable. It had been a matter of great difficulty to decide cases where a medical man was criminally responsible for the death of a patient. It had been pithily said that it would be a very grevious thing for society, if a medical man had to deal with difficult and dangerous cases, as if he had a halter round his neck, and that the hand of the surgeon might well tremble on the occasion of a critical and difficult operation, if he felt that he would be held criminally responsible if it should fail. Of course, every medical man could not be expected to be a Brodie, a Paget, a Lqcock, or a Simpson, but they were all expected to use the greatest caution and care, and competent skill and knowledge, in the exercise of their profession. Returning to the legal aspect of , the case, he might say that in the cases in which medical men had been held criminally responsible, he found such descriptions of their conduct asjtheae: “ Gross ignorance,” “ gross negligence,” “ gross want of skill,” “ gross want of caution,” “scandalous and criminal inattention,” “misconduct,” “gross and improper rashness.” It would seem, .therefore, necessary, that something more than the mere failure of an operation/ necessary in order to make a medical man criminally responsible. Under these circumstances it was extremely difficult to-give the jury any accurate information of the degree of negligence necessary to support a charge of this nature, and it would be for them, after hearing the evidence, to decide whether there was a prima facie case to go to the petty jury. The next matter of law which he must refer to—inasmuch as the charge in this case was one of the manslaughter of an infant child—was this, that in order to constitute murder or manslaughter it was necessary that the subject should be a living being, and that the destruction of a child in the womb, or one which had

not been born alive, does not amount to manslaughter. But a modification of this doctrine was laid down by one of the most eminent Judges of England (Lord Coke) some 300 years back, to the effect, that if any potion should be administered, or an injury done to an infant before being born, and it was afterwards born alive, and subsequently died from the effects of such potion or injury, that would constitute murder or manslaughter, as the case might be. As far as he had been able to discover from the reports, there had been only one case during all that long perio,, illustrating that doctrine, viz., the case of Rex v Senior, in 1832, reported in J, Moody’s Crown cases, the circumstances of which were, in many respects, similar to the present one. His Honor having read the case alluded to, proceeded to advert to the facts as established, and stated if they were satisfied—either, without or with the introduction of the evidence of the accused, given before the coroner, as telling against him—from the evidence that there had been gross unskilfulness and gross neglect shewn in this case, then their' duty was to return a true bill, but not otherwise. The next case to which he should refer was that of arson, in which a husband and wife were charged with having set fire to a dwelling house, with intent to defraud the insurance company, This case was becoming unfortunately too common in the colony, and should be vigilantly prosecuted, and if need be, very severely punished. In these cases it was not only a great fraud and injury, but was also a matter of danger to the public, more particularly where there were so many wooden buildings as in the towns of the colony. Therefore it was that such a crime as this should at once be put down by the strong arm of the law. In the case now before them the prisoners were husband and wife, and generally, except in cases _of murder or treason, the presumption in law was that the wife was acting under , the coericon of her husband, and was therefore not liable to be indicted, But this presumption might always be rebutted by evidence that the woman was the principal actor or instigator of the offence. In this case from what he had seen of the evidence, there was nothing to shew that the wife was more than a willing instrument of the husband. Therefore, if after consideration of the facts of the case they came to the conclusion that she must be presumed to have been acting under her husband’s coercion, they ought not to find a true bill agairji her. These were all the observations he n«ud address to them. If they would retire to their room the bills would be sent up as speedily as possible. The Grand Jury then retired to their room. PERJURY. Charles McNicol surrendered to his bail to receive sentence in the case of perjury, on which he was found guilty last session, but which had been remitted to the Court of Appeal on a point of law raised at the trial, and on which the judgment had been upheld. The Registrar having read the certificate of the Court of Appeal, Dr Foster appeared for the prisoner to call evidence as to character. Dr Patrick, Messrs P. Thompson, and George Jones, were examined as to the general character of the prisoner, and gave him an excellent one. His Honor, after referring to the heinous nature of the offence, said that had it not been for the good character given to him, the prisoner would have been sentenced to a lengthened term of penal servitude. Taking into consideration the time—six months — during which the prisoner had been under the shadow, as it were, of sentence, he thought the justice of the case would be met by passing a sentence of eighteen months’ imprisonment with hard labor.

OBTAINING- MONEY UNDER FALSE PRETENCES. Patrick Gordon was indicted for having, on the 13th May last, obtained money on a valueless cheque. The prisoner pleaded “ Guilty,” The same prisoner was indicted for larceny as a bailee in two cases of horses obtained, one from Mr E, W. Millett, and the other from Mr John Gay, and pleaded Guilty to both charges, Mr George Harper appeared for the prisoner and said that he had advised him to plead guilty. He wished to ask his Honor to deal as leniently as possible with the prisoner who was a gimtleman by birth, but had unfortunately fallen into evil ways since his arrival in th< 5 colony. His Honor, after remarking on the pain j.t gave him to ;see a person like the prisoner in so degrading a position, sentenced hilth -tp two years’ on. each charge, the sentences tbs run concurrently, or.two years’ in all, J' / FORGERY.. ' .Jf Allan Wright was indicted for haying, on the 21st of April lost, forged the.'Signature of one Henry Windsor to a withdrawal notice of the Post Office Savings’ Bank at Christchurch for the sum of £2s. .. • The prisoner, who was-"-undefended by counsel, pleaded “ No-guilty.” Mr Duncan proseci ited on behalf of the Crown, .... The facts 0? the' tcare were shortly as follows : prosecut or and prisoner were drinking -\fjpot the; town together on the day previous to the, id ate of the offence mentioned in the indicl ;m ent. On the latter day the prisoner came ■to the Post-office Savings’ Hank, and prese: atcd a depositor’s book in the name of Henry Windsor, and requested £2O from, the account. The clerk, on looking at the receipt signed by the prisoner, re marked .its dissimilarity to the signature oH the prosecutor ; and the prisoner then said that he was brother to the prosccutf >r who was unable to be there owing to illnes u He was then told that he had done wror ig in signing another person’s name, and he then said that he was not aware of it. 3J© then left without the money, and soon afterwards, from information received I, the •. prisoner was arrested. For the prosei jution Mr Duncan called detective JjJeil, ; the prosecutor (Windsor), and Messrs Morr is and Gumming, clerks in the Post-Office Sai zings Bank. > The prisoner c ailed several witnesses, but their evidence wa 9 immaterial. His Honor having summed up and read the evidence over! to the jury, The jury found the prisoner “ Guilty, with a |strong recoma icndation to mercy oh the ground of previor is good character, and the loose manner in i vbich the prosecutor earned bis book about y also, on the ground of their having been felii >w workmen, and the prosecutor allowing , him a certain amount of license. His HonGsr-senfti meed the prisoner to twelve months’ ijaprisooi nent with hard labor, fl* aft Sitting. 1