SUPREME COURT.

Globe, Volume VI, Issue 637, 4 July 1876, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. Monday, July 3. [Before his Honor Mr Justice Johnston.] BIGAMY. Thomas Moore was indicted for haying feloniously intermarried with one Lilias Worrall, his wife Emma being then alive. The prisoner, who was undefended, pleaded " Not Guilty." Tbe facts of the case were that the prisoner was married in 1871 to one Emma McDermott at Hokitika, by the Ven Archdeacon Harper ; and that after living some time with her left her. In February, 1876, he was married to one Lilias Worrall, his wife Emma being then alive. For the Crown the following evidence was called, viz : Patrick Dooley, who deposed to being present at the marriage of the prisoner with the first wife at Hokitika. The Crown Prosecutor put in a certified copy of extract of marriage certificate. J. W. Parkerson. Registrar, at Ohristchurch, deposed to marrying the prisoner to one Lilias Worrell, on the !sth February, and R. L. Thompson deposed to being present thereat. The jury after a short consultation returned a verdict of " Guilty." His Honor sentenced the prisoner to three months' imprisonment with hard labor, remarking that the circumstances of the case were such as to render it almost a venial offence, and that therefore he would inflict as light a seutence as possible, consistent with the ends of justice. LARCENY IN A DWELLING. Louie Scott was indicted for having on the 19th May last stolen from the dwelling house of one T. A. W. Parsons in Lyttelton one pewter silver coins to the value of £lO. The prisoner, who was undefended, pleaded •'Guilty." His Honor sentenced the prisoner to nine months' imprisonment with hard labor. MALICIOUSLY WOUNDING. Alfred Bishop was indicted for having on the 2nd June maliciously maimed one sheep, the property of J. M. Watt. The prisoner pleaded " Not <3uilty," and was undefended. It appeared from the evidence that the prisoaer was employed as slaughterman at the Belfast Meat Factqry. 'On the day named iu the indictment the prisoner, who was killing sheep, cut off the nose of the sheep referred to therein, and also took out its eyes, leaving the animal to go adrift while'he killed nine or ten other sheep before he slaughtered it. Mr Duncan led evidence for the Crown to prove the facts abova stated. Detective Kirby deposed to the arrest of the prisoner at Lyttelton on the 30th June. Robert Caldwell deposed to seeing the prisoner gauge out both eyes from the sheep, and slash it over the face with his knife several times, leaving it in that state until i e had slaughtered nine others. The prisoner flashed the knife about and swore at thesheep. One of the men remarked that it was a shame, and prisoner replied that if he would come ani lay down there he would cut his throat.

James Sloanes and Win. Buckler gave corroborative evidence as to the conduct of the prisoner The prisoner addressed the jury, but did not deny the testimony of the witnesses. His Honor having summed up. the jury, after a short consultation, returned a verdict of «'Guilty," His Honor, after expressing the abhorrence he felt at the unmanly outrage of which the prisoner had been guilty, sentenced him to three months' imprisonment, giving as a reason for inflicting so light a punishment, that the time when the sheep was killed after the offence, waß in a measure short, and that it was not such an offence as usually came under the statute. At the same time he could not help expressing the feeling, almost of horror, which every right minded man must feel at such torture being inflicted on a dumb animal, merely as a vent for a feeling of passion against some of the men working with the prisoner, TEUE RILLS. During the day the Grand Jury returned into Court with true bills in the following case« :—Regina v Patrick Gordon —Obtaining money under false pretences, and larceny as a bailee (two cases) ; Regina v Allan Wright, forgery; Regina v Thomas Moore, bigamy; Regina v Louie Scott, larceny ; Regina v Alfred Bishop, maliciou3ly wounding an animal ; Regina v Wm, P. Townend, manslaughter ; Regina v Matthew Smith and Richard Nixon, burglary and larceny ; Regina v Joseph Catchpole, arson. NO BILLS. The Grand Jury returned no true bills in the following cases, viz—Regina y Albert Rhodes, horse stealing ; Regina v Margaret Catchpole, arson. DISCHARGES . Albert Rhodes and Margaret Catchpole, against whom no bills had been found by the Grand Jury, were brought up and discharged bv proclamation, The Court adjourned at 6 p.m. till 10 ft.m. this day,

Tuesday, July 4. • \ (Before his Honor Mr Justice Johnston.) The Court reopened at 10 a.m. MANSLAUGHTER.

William Potter Townend was indicted for having on the 20th May feloniously killed and slain one male infant, not named, born of one Amelia Isaacs. A second count charged the prisoner with having killed and slain one Charles Harris Isaacs, an infant of tender age.

The prisoner, who was defended by Mr T. I. Jojnt, pleaded " Not Guilty." Mr Duncan appeared to prosecute on behalf of the Crown. Mr Hickinbotham was chosen foreman of the petty jury. Mr Duncan having stated the case to the jury, Mr Joynt said that before hia learned friend called evidence, he wished to draw his Honor's attention to the fact that for the first time he found that the Crown intended to call Mrs Isaacs to detail what had taken place betweeu the prisoner and herself. Sometime back his Honor had laid it down aa a principle that when new witnesses were to be introduced by the Crown the prisoner's counsel should be informed thereof. He had now for the first time heard that Mrs Isaacs was to be called and examined. By the courtesy of his learned friend he had seen a copy of the indictment, on which was endorsed the name of Mrs Isaacs, which gave him no information as to the nature of her evidence. He would submit, with all due respect, that his Honor had an inherent right to make a rule of practice in this matter.

Mr Duncan said that he desired to explain that Mr Joynt had notice the day before of the intention of the Crown to call Mrs Isaacs. He himself had no copy of the evidence of Mrs Isaacs, so that he could not let his learned friend have a copy. His Honor said that in serious cases, such as murder and manslaughter, it was usually held that no new evidence should be introduced without the prisoner's 'counsel being informed of it. As regarded the present case, it brought up rather the quest ; on "of the way in which the prosecution was conducted. He could not make the order which Mr Joynt asked, as be oould not alter the common law. Of course in the hands of the prisoner's counsel the fact of non-information would prove a very strong weapon to the jury. Mr Duncan then called the following evidence:—

John W. Smith Coward deposed that he was coroner for the district of Christchurch, and that on the 25th May held an inquest on the body of a male child. The prisoner was present, and, after other witnesses had given evidence, he desired to give evidence himself. Witness warned him that what he then said might be used against him. The prisoner then gave evidence. [Witness then read the evidence of W. Potter Townend, given at the inquest.] No one could perform craniotomy with those scissors. His Honor—But he did not intend to performe craniotomy. He only intended to kill the child.

Mr Joynt—There is not a word in the evidence as to his performing craniotomy. He "says that Mrs Isaacs's first child had to have the operation of craniotomy performed on it.

Witness—The scissors produced are not instruments such as a skillful practitioner would use to assist birth. They are calculated to kill the child. In case of protracted labour, and there being an obstruction to the birth, instruments such as those would not be used by a skilful practitioner ; he would use the forceps. I do not believe that priscner did what he says he did, or that he oould do it. That is my opinion as a scientific man.

Cross-examined by Mr Joynt—A post mortem took place by my orders before the inquest, by Drs Powell and Campbell. I ordered a post mortem examination because I believed the child had been destroyed unnecessarily by the prisoner. I need not inform the Court that I act on information furnished to'ine by* the polipe'

Mr Joynt—l am not attacking you in any way Pr Coward. Witness—l may say that I am not in the least a partisan in this matter. I did not even know that I was to give evidence. Mr Joynt—l do not for one moment impute partizanship to you Dr Coward. Witness—-I do not know that the prisoner was practising obstetrics Christchurch. I know his brother was. I did not give prisoner notice of the post mortem. I do not recognise him as a medical practitioner. AsaumiDg that rupture was imminent, I should attempt to get the child away alive or dead if I had the means. I might, had I not the beet appliances at hand, use the means I thought would effect the purpose. I would endeavour to get the child born by any means I could. By his Honor—l should consider that if the life of the mother were in danger, it would be a proper course for a medical man to adopt to destroy the child by the best means he might be able to adopt. By Mr Joynt— There are cases in which it is impossible to use the forceps. The difh* culty of labour in some persons is apt to increase with each birth. Harris Isaacs —I am a shoemaker residing in Colombo street south. On the 20th May last I had occasion to go to Dr Townend's surgery in Colombo street. I saw the prisoner there, and told him I wanted the doctor immediately, as my wife was very bad, and that it was a special case. My wife had previously made arrangements with Dr Townend ta attend her. Prisoner said, '' I'm Dr Townend ; I will be there immediately." He afterwards came to my house in a buggy. About a quarter of an hour after prisoner went into the house, Mrs Robertson came out. She told roe something, and I sent in for the prisoner immediately. Etc did not come directly,! but sent out Mib Bnglefield. After she had told me something, the prisoner came out ; I should think about t 1 ref-quarters of an hour had e apsed sioce he first went in. The prisoner asked me what I wanted, and I told him I had been informed that my wife was very bad, and asked him if he thought another doctor was required, as if so I would go and fetch one. He replied in the negative, and said that if I dared to go for another doctor, he would put his coat on and go away, and five minutes afterwards my wife would be a dead woman.' He said he would do the best he could for my wife, and he then returned to the house. Shortly afterwards I was called by one of the women. The prisoner told me to run and get him a pair of forceps from his brother's house. I did not understand the word " being a foreigner, and I got him to write the name of the instrument down, My wife was calling out very much

with pain, and I took the buggy and horaO in which he hai come to my house. I came back with the prisoner's brother, to whom I gave the paper, with the name of the instrument written on it. When I got to the house I heard a cry from the room in which my wife was, which was the cry of a child, but it sounded like a dumb animal. I saw the prisoner when he came out with his brother. They were in the room, about a quarter of an hour o? twenty minutes. The prisoner said he was jorry to tell me that the child would not live over three days, fie said they had had to use certain pressure, and that he did not think the child would live. My wife, when I saw her, was in a very bad state. I saw her about a quarter to one a.m. It was about half-past eight when I first went to the doctor. The child Uvea thirty-six hous; after it died the body was taken to the Christchurch Hospital. It was a male child.

Cross-examined by Mr Joynt—l did not pee Dr Townend that evening when I first went to his surgery, the first time I saw Dr Townend was when he came back with me in the buggy. The prisoner did cot speak load enough when he told me he was Dr Townend for those piesent to hear. The nearest person to him was six feet off. If any one was to come forward and say they heard what he said they would be speaking falsely. He did not say that Dr Townend waa engaged and could not go. My wife waa confined about a quarter or twenty minutes past twelve at night. I got there with Dr Townend about twelve o'clock. My wife has had four children, of which two are living. The birth of the first waa a very difficult one, and had to be removed by instruments. The child waa killed in the birth. I understood the prisoner to mean when I asked him if I should go for another doctor, that if he ltft my wife she would be a dead woman in five.minutes. Amelia Isaacs —I am the wife of the last witness. About three months' prior to 20th May I went and engaged Dt Townend to attend me in my confinement. He had not attended me before. My confinement took place on the 20th May. On that evening I sent my husband for Dr Townend, The prisoner came. When he came into the house I looked up at him and said, '• You are not the doctor I engaged : you are the doctor's brother." Mrs Englefield was present at the time. I said to him " I have no knowledge of you, but at the same time it don't signify so long as you are skilful; when a person is in trouble they don't mind." I was in great pain at this time, such as precedes the birth of the child. The prisoner said "We are all good doctors ; I'll do the best I can." He then made the usual examination. ("The witness then proceeded to describe the subsequent proceedings.] I refused to take the powder the prisoner to, as I thought there waa too much of it—there being nearly a dessert spoonful. I have taken the powder before—three doses in the twenty-four hours, but they die not give me so much pain as this. The prisoner treated me very roughly for some time, and I asked him if he had not an instrument of some kind : he did not answer me. The prisoner used the scissors which had besn placed on the table by the nurse, for ths purpose of delivering the child. When the child was born it cried unnaturally. It waa bleeding from the eyes, forehead, and mouth. The child was not baptized. His Honor.pointed out to the Crown Proaecutoe'tbat thig disposed $t tije, ' count. The child had no name except by repute. Witness —Dr Townend arrived in. time to bind up the wounds made by the scissors. The person with me was not a skilled nurse. Mr Joynt said he would ask his Honor to allow of his conferring with the prisoner' before cross-examining this witness. His Honor would see that this evidence was entirely new, and therefore it was only right before he entered on his cross-examination that he should have the opportunity of conferring with his client. His Honor quite agreed with Mr Joynt as to the reasonableness of the request. The witness had been added to those previously examined, and' of pours'e 'it was only righs that opportunity should be afforded to the prisoner's counsel of studying t;he evidence so given. Perhapa it would be a 3 well if the witness came up for cross-examination at a later stage. Mr Joynt waa quite satisfied tbat thia should be done.

Elizabeth Englefield, the woman attending last witness, deposed to the events taking place during the birth, corroborating principally the evidence of Mrs Isaacs. Dr Parkerson saw the child on the Monday, at 11 a.m.

Cross-examined by Mr Joynt—Dr Townend attended to the child after it was born, in the kitchen. The prisoner had been in the house about three hours before the chil d was born. It was a very difficult birth. It vras between ten and eleven when prisoner gave Mrs Isaacs the powder. Prisoner tried by "all ordinary means to deliver the child for about two hours ; the scissors were then used and the child born. I cannot say bow long after Mr Isaacs went for Dr Towner d that prisoner used the scissors. The body of the child was a clear colour ; the head was dark and swollen.

After the usual adjournment for lunch, Mrs Isaacs, in cross-examination by Mr Joynt, deposed that she was delirious after taking the powder. Her first child 'was 1 tod large to be born. Burrell Parkerson, a duly qualified medical practitioner, deposed to Laving been called to see the child of Harris Isaacs on the 22nd of May, at 11 a.m. Witness did not know the sex of the child. The witness then described the appearance of the child. Cross-examined by Mr Joynt—The child when I saw it was making efforts to breathe, and very imperfect ones, i'think it died of exhaustion; but it is hard to Bay, as'l was not present at the post mortem. The 'child was rather small, but I tihftuld say it wag full grown, though one cannot tell accurately. It is a matter of opinion. By his Honour—l was requested to see the child by the father in the absence of Dr Campbell. I saw that my services were useless. I certainly did not go to see what injuries had been done to the child, as I was not aware there were any, but simply to see if anything could be done for the child." l Donald Campbell,' a legally qualified medical practioner, deposed as to his going to the house of Thomas Isaacs, at the request of his partner, Dr Parkerson, and there- saw the body of a child, which he examined so fay as was pointed out'to him by Mrs Englefield', viz, two wounds above the right eye. He then formed the opinion that they evidently penetrated t* e (kin, which he locked upon as a serious matter for a new born infant; he did not at this time make a minute exaraina.

tion; It looked an ordinary nourished child from the cursory examination made. Mr Duncan here proposed to ask the witness as to the post-mortem examination. Mr Joynt submitted that no evidence of the post mortem could be given, because the coroner had stated in his evidence that he had ordered it to he made in consequence of his having reason to believe that the death of the child was caused by the ill-treatment of the prisoner. The Coroner had also stated that no notice or intimation of holding the post mortem had been given to the prisoner. It was provided by the 22nd section of the Coroner's Act that the accused, where a medical practitioner was charged with accelerating or causing the death of any person should be allowed to be present. His Honor said the objection was a reasonable one, but on the matter of law he was against Mr Joynt's contention, as the law, though saying the accused person might be present, did not say he shall. At the same time it was matter for regret that the ac cused has not been informed of the postmortem so as to be present. Mr Joynt would ask his Honor to reserve the point. His Honor must decline to do so, as he held the law was as clear as the sun at noonday. The law did not cast upon the coroner the duty of informing the accused person, but simply that he should be allowed to attend.

Mr Joynt—But how could he possibly attend if he did not know that the postmortem was to take place. He was as much excluded as if he had been prevented from attending. Ido not wish to cast any blame on the coroner, but I want to shew that from not receiving notice, the accused was as much prevented from attending as though he had been expressly excluded by the coroner. ~ , ~ . . „ His Honor—l have decided the point Mr Joynt, and that is enough. There is no reason at all under the circumstances why the evidence of the post mortem should not be given. The Legislature I point out does not make it the duty of the coroner to give noticejof the holding of the post mortem, to the accused person ; although there is a provision that he shall not be prevented from being present. I therefore, Mr Joynt, rule against you, and decline to reserve the point for the Court of Appeal, as it seems to me that it is perfectly clear. Mr Joynt—Will your Honor allow me to lay that I confess it is not clear to me at all, and I have been considering the point for the last fortnight. His Honor—l cannot alllow counsel, Mr Joynt, to say after a ruling from the Court that they cannot clearly see the point of law which has been decided. NEW CASES. The Grand Jury having assembled, His Honor proceeded to comment on the true bills, one for robbery of cargo from the ship Desdemona, and the other for manslaughter. After commenting shortly on the first case, his Honor said that as regarded the second one, it was for the Grand Jury to consider if the wounding of which the deceased died, was inflicted maliciously, or was a misadventure. At the Bame time they would also have to consider whether there was such gross carelessness exhibited, even by a boy of seventeen, in carrying a loaded gftn as tsqul4 render it qulßahla negligence. He need np.t detain them longer. The Grand Jury then retired to consider the bills presented. BEGINA V TOWNENB. The hearing of this case was continued. Dr Campbell proceeded to give evidence as to the result of the post mortem examination made by Dr Powell and himself. The result of that examination was to convince him that the causes of death was the injury done the skull arid brain and the external wounds. The internal organs were healthy. Mr Duncan now proposed to have the statement of the prisoner read, so as tq have the evidence of this and other skilled wit-, nesses as to whether the treatment of the, child by the prisoner was 'gkilfnl and, proper. ' His Honor granted the application, Mr Joynt not objecting. Witness—From what I have heard read as a medical man, supposing all the facts to be true, including a belief of an imminent rupture, I do not consider that the use of the scissors as described was necessary. If the head of the child was as described, I think it would be the duty of a skilful practioner to attempt to destroy the child in Buch a manner as would be fraught with the least danger to the woman. Where the life of the mother was, as I believed, in immediate danger, I would use whatever was at hand to destroy the child. I think that every medical man should first attempt to use the forceps, but a skilful surgeon should use anything he had at hand when the danger to the life of the mother was in danger. Before using any other means a surgeon should, in my judgment, use the forceps. I saw nothing in the child to lead me to believe that there was anything but the usual labour. I do not believe that the ohild was, as has been stated, because the marks of difficult labour were absent. If the child had been as stated by the prisoner it would have shown marks of disfigurement which it did not show. No operation atall waß necessary if the statement of the prisoner as to the manner of delivery iB true. It was unprofessional in my opinion to make ' the wound in the head of the child as described. If I am giving my evidence on the statement of the prisoner I must say that Mr Townend must have seen the necessity for doing what he did.' I cannot conceive that a skilful man could have believed that such a state of things as described by the prisoner existed, when a'fterwards there were no other" marks than tfhdae I saw. I thinkthat no Bkilf ul person Wpuld, on'the ! facts stated by the prisoner, Baite been apprehensive of an immediate rupture. TRUE BILLS. The Grand Jury returned into Court with true bills in the cases of Regina v William Murray and otherß, lareeny on the high seas, and Kegina v Arthur Rowlands, man"flfs Honor then discharged the Grand Jury, with the thanks of the sueen and colony for their services. [Left Sitting.]