SUPREME COURT.

Globe, Volume XX, Issue 1367, 3 July 1878, Page 2

SUPREME COURT.

CRIMINAL SITTINQ-S. Tuesday, July 2. [Before His Honor Mr Justioe Johnston, - ! The following is a report of the proceedings of the Court after we went to press yesterday : LAECBNY I'EOM A DWELLING. John Brookes was indicted for having stolen certain articles from the house of Charles Boyd, at Lyttelton, The prisoner, who was undefended, pleaded “Not Guilty.” The case for the Crown was that on or about the 4th March, 1877, the prosecutor, Boyd, had in his possession a gold chain, about two pounds of tobacco, and two boxes of collars, which articles were in his house at Dampier’s Bay. The prisoner was seen to go into the house of the prosecutor, and afterwards the chain, which was identified by the prosecutor as his, was given by the prisoner to a housemaid at the Albion hotel. The prisoner’s defence was—The wife of the prosecutor, who had asked him up to her house, and had accepted spirits and money from him, had given him the chain. The jury, without leaving the box, returned a verdict of “ Not Guilty.” His Honor— Prisoner at the bar, you now see the danger of taking presents from other men’s wives. The prisoner was then discharged. UNLAWFULLY WOUNDING-. Samuel Badham was indicted for having on the Bth May unlawfully and maliciously wounded Edward Hughes with intent to do grievous bodily harm. The prisoner, who was defended by Mr Izard, pleaded “Not Guilty.” The case for the Crown was thf,t the prosecutor, who is a sergeant of police, went to arrest the prisoner on a warrant dated July, 1876. The constable had not the warrant with him when asked for it by the prisoner. The prisoner resisted the constable, and with a knife, which he had in his hand, stabbed him. Ultimately assistance was procured, and the prisoner arrested on a charge of stabbing with intent. His Honor—Do you intend to contend, Mr Duncan, as a point of law that the constable was entitled to arrest the prisoner ? Mr Duncan—l don’t think, year Honor, that as a matter of law, the constable was entitled to arrest the prisoner without having the warrant, but I shall contend that this was no reason for the prisoner to take a knife to the constable. His Honor—Then you go on the question of excess of resistance, Mr Duncan? Mr Duncan—Yes, your Honor. His Honor was not quite sure that a person, knowing that the trespasser is a constable, that a warrant is out against him had a right to resist him. He should direct the jury, that assuming the constable had no right to arrest him, having no warrant, the prisoner if he had a knife in his hand had a right to resist the arrest. That was after the prosecutor had been asked to withdraw, being a trespasser. This was the direction he should give the jury and reserve the point if necessary. The case then proceeded. Edward Hughes, Sergeant of Police at Christchurch, the prosecutor, deposed to going to the house of prisoner on Bth May, 1878, to arrest, him on a warrant issued in July, 1876, for wife desertion. He had no warrant with him. The prosecutor then told him to go out of the house, threatening if he did not to use a knife on him. Witness told him that the warrant was at the police station, and that he would wait until the prisoner had finished his supper, when he had belter go quietly. Mrs Badham, at whose instigation the warrant had been issued, took the poker and put it up in witness's face. The prisoner had a knife open in his hand, an ordinary pocket knife. Witness arrested him by putting his hand on his shoulder. Prisoner made a slashing cut at witness, going through jumper, trousers, and shirt, and inflicting a wound on the thigh. The prisoner made other cuts at witness, but ho got him fast by wrist and arm,, Witness then received a second cut in the belly from the knife produced, The wound on the thigh was three and a half inches long by one-eighth of an inch deep. Witness called for assistance, which came, and the prisoner threatened to serve them the same. Witness had seen the warrant issued against Badham. His Honor—Why did you wish to arrest a man who was living comfortably with his wife ‘ — -"nva after ? LVW j,, Witness—l cannot explain why. Badham went away to America. Tli« TTrvnor—Why did you want to arrest cO cxei• , 'ra' for 'he of ***> 1C ,- u ; »• Honor : . " "•HiC' "■< „ Gut Mr Du.-i.dn, Badham. You apt ‘od a felony p , , i leL o ■'lice «. ■ a : I

contend, to execute any warrant which was running and not executed. His Honor—Witness : Did you ascertain that the prisoner’s wife was willing to withdraw the charge? Witness—No, your Honor, His Honor—But you knew that she weut to withdraw (he charge of wife desertion. Witness—l heard so, your Honor. His Honor—All that lie was liable for, even if he had been brought up on this warrant and convicted, was to forfeit £5 and provide for the maintenance of his wife. On cross-examination by Mr Izard, the witness said ho had told the prisoner’s wife to go down to the Court and withdraw the warrant if ho was living with her. To this she made no reply. His Honor—Who was it told you to arrest the prisoner P Witness—l know the warrant was out, and it is the duty of a constable to execute all warrants as speedily as possible. His Honor—Then, without consultation with the magistrate or with the inspector, you proceeded to execute a two-years-old warrant for wife desertion, when the parlies were living together. Witness—l thought, your Honor, that if they were living together Badham’s wife would, after I had told her, come and withdraw the warrant. Cross-examination continued —Badham did not strike witness until he arrested him He only threatened. Witness’ weight was about fifteen stone, and he was a much more powerful man than the prisoner. Mrs Badham was inciting the prisoner to resist the arrest. Dr. Coward, the surgeon to the police force, detailed the appearance of the wounds inflicted on the prosecutor. His Honor asked Mr Izard if he had considered the point as to how long these warrants continued in force. Mr Izard replied in the negative. There was nothing in the Act about it. His Honor quoted from Burns’ “ Justices of the Peace” on the subject of warrants, on the point of the necessity of a constable arresting a pex-aon being bound to show his warrant when asked for. Mr Izard quoted a case of Oodd v Kaye, 45 L. M.C. 101, as showing that a constable could not arrest a man on a charge not being felony without having the warrant in his personal possession. In this case the resistance to the arrest was hold to be legal. [Case cited in judgment Galliard v Luxton 31 1.J., M. He would also quote another case Reg. v Bull. The case of Galliard and Luxton was on all fours with the case now before the Court. His Honor—Will you contend, Mr Duncan, that the arrest was legal after those two cases ? I was not aware of these two cases at the time the matter was before me. Mr Duncan—l do not think your Honor, after the judgments in these two cases, I shall contend t hat the arrest was legal. His Honor—Then you abandon that point. Mr Duncan —Yes, your Honor; and shall go on the point of excessive resistance by the prisoner. His Honor—Do you think that there is evidence enough to go to the jury, Mr Duncan, after the evidence of Hughes as to the relative powers of the men, that Badham could have resisted successfully the illegal arrest of Hughes ? Mr Duncan —I think so. Mr Izard —What! against fifteen stone ? His Honor—But leaving that on one side, I shall direct the jury that if the prisoner did not go away to fetch the weapon used, and they believe that he could not without assistance have successfully resisted Hughes’ illegal arrest, the resistance was not excessive. Mr Duncan would dix-ect the attention of his Honor to the case of Regina v Rachel Cox, F. and F., vol 1, 664. [Quoted.] His Honor said that the cases were not analogous. There was no question of excess of violence raised in the case quoted by Mr Duncan. It was a case of intent, and the question of excess of violence was never mooted. The cases, therefore, did not agree. In the present case how was the prisoner to put Hughes out P Hughes was admittedly the more powerful man of the two, What he was now prepared to direct the jury was this, that the arrest had been admitted as illegal, and the prisoner was justified in using all reasonable violence to eject him. If he had a knife in his hand at the time he would he justified in using it to a reasonable extent to eject the intruder. It was in evidence that he did not use it until he was assaulted illegally by the sergeant. Could Mr Duncan dispute that law ? Mr Duncan thought not. His Honor then proceeded to address the jury, pointing out that it was very wrong on the part of the constable to go to the prisoner’s house to arrest him without having the warrant. It was very necessary that the police should be aware of their powers and duties, and he might point out that the law required that the police should when arresting a man have the warrant with them. There was no doubt about it that the constable was a trespasser just as mxich as any one out of the street, and it was for the jury to say whether the force used by the prisoner to eject the trespasser from his house was excessive. The jury, after a short deliberation, returned a verdict of “ Not Guilty.” The prisoner was then discharged. LARCENY. William Hatch vims indicted for having on the 20th May, 1876, stolen certain jewellery, the property of David Thow. The prisoner, who was defended by Mr George Harper, pleaded “Not Guilty.” The case for the Crown was that the jewellery had been lost by Mrs Thow in the Foresters’ Hotel, where the prisoner was engaged as barman. After some considerable time had elapsed the jewellery w'as found in the possession of Mr Berti, of the Foresters’ Hotel, who had purchased it from the prisoner. For the prosecution, Mr Duncan called Mrs Thow, the prosecutrix, and other witnesses. Mr Harper called witnesses to character for the defence, and also addressed the jury. H!s Honor summed up, and the jury returned a verdict of “ Not Guilty.” The Court then adjourned xxntil Thursday, when the cases of Hunter and Tarnouaki will he taken.