SUPREME COURT.

Globe, Volume XX, Issue 1452, 11 October 1878, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. Thursday, October 10. (Before His Honor Mr Justice Johnston.) MALICIOUS INJURY TO PROPERTY. In the case against James Fitzgerald the cross-examination of Constable Brooks was continued by Dr. Foster. The witness said that he attempted to get a paper plan of the footprints, but it failed. The other footprints beyond those measured were to the eye similar. The damage done might be completed in half an hour. Witness would not like to do such a thing at all, but if he were doing it for a wager, it might be done in a shorter time. There must have have been considerable noise, as some of the larger branches were wrenched off as well as cut. Prosecutor told witness that the dog had been barking, and that_ he had wakened up in a boiling perspiration, dreaming that he was in the American war. There would be no difficulty whatever in any one getting in or out of Fitzgerald's premises. This closed the case for the Crown. Dr. Foßter called the following evidence for the defence. Q-eorge Russell, who deposed that he reaided in Sydenham. Witness knew the tomahawk, which was Fitzgerald's property. Witness ÜBed the tomahawk last on the 7th September. It was used for opening oysters. The one now produced was not the one used by him then, nor had he seen that one since. Witness knew that prosecutor kept a dog. He had heard it giving an alarm when witness was passing the house of the prosecutor. Frederick Thorpe deposed to residing in Sydenham, at the house of the prisoner. On the night of the 23rd September witness went to bed at 10.30 p.m. Some time after that, about 11.30, Fitzgerald and his wife came up to bed. Witness did not hear any noise in the house during the right. His bedroom was about twelve feet from the bedroom occupied by Mr and Mrs Fitzgerald. Witness did not recognise the tomahawk produced as belonging to Fitzgerald. He knew the tomahawk which belonged to Fitzgerald, which had nine nails in the head of it. Witness saw it a week or a fortnight before the occurrence. Theodore Gunderson deposed to mending a pair of shoes for the prisoner. The shoes produced were the same. He could find a dozen pairs of Bhoes like the ones now produced. Joseph Fuss deposed that ho had seen the garden of the prosecutor. The destruction there would take some two or three hours to complete, even with a good axe. This closed the case for the defence. Dr. Foster then addressed the jury at some length on behalf of the prisoner. His Honor summed up, commenting on the evidence. The jury retired to consider their verdict at 4.15 p.m. At 4.40 p.m. they returned into Court with a verdict of " Guilty." His Honor commented very strongly on the dastardly nature of the offence, remarking that it was an unmanly, despicable piece of revenge. The jury, he felt, were justified in finding the prisoner guilty, and therefore he, the Judge, had nothing to do but to carry out the law. But whilst he was bound to carry out the law he should not give the prisoner the full extent of the punishment he might do. The Legislature had fixed the punishment at three years' penal servitude. He woidd. however, treat it|as a first offence, and though he felt it to be a very mean, despicable, and dastardly case, he would pass a light sentence, viz., six months' imprisonment witli hard labor. Friday, October, 11. The Court re-opeucd at 10 a.m. SENTENCE. The prisoners Belcher and Sorenson, conviclcd of unlawfully killing cattle, were brought up for sentence. Mr Joynt said he had looked into authorities on the subject, and the effect of the rider of the jury was that there was no felonious intent. His Honor said he had no doubt on the point of law that the animals could not bo treated as wild, and all the jury meant was that the animals hud escaped from their proper owners. Mr Joynt submitted that the verdict of the jury meant that the prisoners believed that the cow wus no one's property, hence there was no felonious intent on the part of the prisoners. If the jury found that the prisoners shot the cow, thus believing, he submitted there was no felonious intent. His Honor asked whether it was necessary to prove felonious jutouL Tk,a law paid, t])ot>

the shooting of any animal without, legal excuse was a felony. Mr Joynt said he would like to cite cases to show his Honor that the authorities went very close to his contention. [Cases cited L.R., 1 Crown cases reserved, 1871; Reg. v J. Childs, p. 307; L.R. 2, C.C. Res. Reg. v H. Pembleton,] He should submit that the finding of the jury went the length of saying that the prisoner had no malice. His Honor, whilst not agreeing with Mr Joynt's arguments on the point of law, would pay every consideration to the verdict of the jury. In cases like this the conviction was of far more importance than the length of sentence. Mr Joynt said that he desired to call witnesses as to character. Constable Lamb gave both prisoners an excellent character. His Honor said if there had been any foundation in the arguments of the learned counsel for the defence he should have been very pleased to have reserved the case for the Court of Appeal. This not being so, he desired it publicly to be known that no more dangerous belief could get abroad in a country like this where cattle we re numerous than that persons could shoot cattle which had strayed on to their land and which were treated as wild. The proper remedy was for persons on whoße land cattle trespassed to pound them. It was utterly absurd that people should be allowed to go about shooting i cattle. If this were so, it would prevent people with capital settling down in the country and carrying on what was one of the staple industries of the colony. If they allowed cattle to be shot, treated as wild, they would then have people treating other animals such as sheep, &c. He wished to make this case a warning to all persons in the colony that such a practice would not be allowed, and would in every case be put down by the Btrong arm of the law. In case of any other person or persons coming before him charged with this offence, if he or they were found guilty, the utmost rigour of the law would be enforced. In this case he would treat it as a warning case, and would also give every consideration to the recommendation of the jury. He would not send the prisoners, who had hitherto borne a good character, to herd with the felons and rascals of the country. The sentence of the Court would be that the prisoners be sentenced to two months imprisonment without hard labor, and he trusted that this would be a very solemn warning to all persons who might be in the habit of shooting cattle, with the prevailing notion that they belonged to no one. MTJBDEB. Eckius Hoff was indicted for having, of malice aforethought killed one Thekla Hoff, his wife, at Oxford. Mr Joynt defended the prisoner. Mr Duncan prosecuted on behalf of the Crown. Mr Qarlick was sworn as interpreter of the Bohemian language. Mr Horatio James Wood was chosen foreman of the jury. Mr Duncan having briefly opened the case to tho jury, called the following evidence : John William Lee—l am a saw miller at Oxford. I remember Monday, Bth July last. About half-past eleven on that day my attention was directed towards Hoff's hut. I went from the mill to the hut, the distance being about a quarter of a mile. When I got to the hut I saw it was on fire, and saw Mrs Hoff lying about three yards from the door outside. She was alive and lying with her head towards the door, as though she had been coming out from the door. She did not speak. I do net think she could. I noticed a cut in the cheek, and blood about the head. There was also blood where the head was resting. I did not see anyone at the hut when I got there. I drew Mrs Hoff's body some distance from the door and from the fire. The roof had just dropped in when I got there. I sent a boy, who had followed close behind me, down to the mill to get some more hands. I went down myself and got to the mill before the boy. I returned with others, having sent one man for the doctor. I recognised the body as that of Mrs Hoff. She was dressed in her ordinary clothes. We raised her head and placed some sacks under it, and put some old stuff we found round about the hut over her. We noticed several cuts about her head. In one or two of the wounds I saw the brains coming from the head. I then sent for the police and prepared a litter. I had the body removed to the mill. The doctor arrived before we removed her. The body was placed in the doctor's cart when we arrived at the mill, and taken to the Oxford Hotel. I knew the prisoner lived in the hut that was burnt, and the deceased with him. A man named Barrett lived with them. The hut was built of timber, and was about 10ft. x 20ft. I removed the body at first from the fire, because the clothes were already scorched about the breast I believe. The clothes could have been scorched by the body lying where I found it. Barrett was in my employ. I did not see him that morning. He worked by contract, so that I did not know what time he went to work. I sent for Barrett, and I believe be came just as we were making the litter. It would be about an hour after I first observed the fire. There was no partition in the house when I was there. From the time I first saw the woman until she was deposited in the hotel, she never spoke. She was still alive when we reached the hotel. The time between my findin? her and her removal to the hotel was about two hours. Cross-examined by Mr Joynt—l could not go in to the hut that morning. I had known the Hoffs for about twelve months, and Barrett for longer. I had not seen Barrett that morning until he came up as stated. As far as I could judge I was the first person who arrived at the hut on the morning of the fire. I had heard that Hoff and his wife had had several growls. I never saw anything of them. Barrett lived with them all the time they were in the neighbourhood. Hoff worked for me some time previous to this. He was very quiet while with me. I never saw him out of temper. While at the mill the prisoner worked with four others. I never noticed how Barrett and prisoner behaved towards each other. William Barrett —I am a bushman, residing at Oxford. I lived in a house belonging to myself with the prisoner and his wife Thekla Hoff. On the morning of the 7th July I went to work at half-past seven. The prisoner was in bed and his wife was up. The prisoner was feigning to be sick. His wife was dressed as I afterwards saw her. She was in perfect health, and was about forty-seven years of age. I was sent for, and got to the house about half-past twelve. The house was destroyed and was still burning. I saw Mrs Hoff lying in the garden. She was alive, but not conscious. I Baw a wound on her cheek and blood on her head. A litter was prepared, and Mrs Hoff was carried down and put in Dr. Weld's trap. Prisoner arrived about half an hour after I did. I had been living with prisoner and his wife for four years. Prisoner used to assist me a little in the bush. I let him have a bit of land for his life, and he being dissatisfied, I toid him he might go away from me altogether. There was only one room in the house. There wero three bed places. Hoff slept in one, his wife in the other, and I slept in tho other. My bed was about a foot or eighteen inches from the bed place of Hoff's wife. I intended to build a larger place when I got money. Hoff has accused his wife of infidelity with me. One time Hoff and his wife used to live on good terms and at others they were jarring at eacli other in their own language. I never saw them use violence towards each oilier. Prisoner never accused me personally of infidelity with his wife : he has accused her, but not me. In the room where the fire was I found a kerosene tin. It was in the watercloset in tho morning when I went away, full of kerosene. There was a chop of a tomahawk across tho head of the tin, and the tomahawk was lying alongside of it. The tomahawk produced is the one. It had a short handle when 1 went away in the morning. The tin produced is the one I fo.und. [Kerosene tin produced with the mark of a tomahawk cut in tho top.] Whon I loft in the morning tho tomahawk was undor my bod. There was an axe about the house, but I do not know if it was in the house. The prisoner ueed to use the tomahawk to cut tobacco. The shingle hammer produced was undor my bed waen I went away in, tbe wwi^.

ing. [Shingle hammer produced.] The broken gun produced was under my bed and the meat chopper produced was in the house. On the morning of the fire, I heard Mrs Hoff ask the prisoner if he would have some coffee, and he said no. Cross-examined by Mr Joynt—At Q-lentui, we had separate rooms. We had been living together for four years. I only understood a scattered word or two of Bohemian. The Hoffs used to speak a little English. I was unable to keep up a conversation with them except in broken English. The prisoner was a lazy man, and used to get liquor—brandy —pretty often. About two or three months before the fire, he had a crippled hand, which was badly cut in the saw mill. Before he cut his hand, he used to pretend he was sick. I told him I did not wish him to work if he was sick. I supplied him with food—that is the house. His wife used to cook, and kept the house. The deceased was always kind to the prisoner. Certainly, one moment she would jaw him, and the next she would give him anything. I have seen her strike him four or five times with her hand. I struck him once at Q-lentui, when he made a blow with the axe at me. Deceased and myself together have never struck prisoner. I never struck him except the once I have mentioned. That was in the house. We were on'good terms. I never saw anything wrong with Mrs Hoff, nor were we on any other terms than just her being in the house as a lodger. The hut was built on the part of the land belonging to me. I let the prisoner have the piece of land for his life. He paid me £l4, and I had a receipt drawn up. [Receipt put in.] When I got the receipt I told prisoner that he was to have the land for his life. He never claimed it as his own. I never knew anything wrong of Mrs Hoff. The prisoner was jealous of me, and of other men. He had no cause to be jealous of me. I swear that I never had any connection of an improper character with Mrs Hoff. I have heard him accuße Mrs Hoff of going with other men and with me. I have told him that he was wrong. The man was not afraid of his|life of me. Igavejhim noloccasion to be either afraid of me. At G-lentui I struck him with a piece of stone or brick. This is about two years ago. Prisoner was outside mad drunk, and said that he was going to kill some one. I was going outside the house when the prisoner struck at me with the axe. I knocked it up, and struck him with a piece of stone or a brick. I hit him on the head, and he fell down. I did not knock him down again. That was the only time I struck him. That was the only time I saw his head cut. It was not a matter of common occurrence for Mrs Hoff and myself to have intercourse at night, notwithstanding that her bed was only twelve inches from mine. Hoff made the bed places himself, and put them where he liked. I have heard Hoff ask his wife to sleep with him. I never told Mrs Hoff not to sleep with the prisoner. Prisoner, when not under the influence of drink, was quiet enough. He had not had drink for a week before this occurrence. I have never admitted t 6 anyone that I was improperly intimate with Mrs Hoff. I swear that I have never told any one that Mrs Hoff was an unchaste woman. I never said " What was the use of Hoff killing his wife. Every woman is a w—e, so that every man might as well kill his wife." Mr Joynt said that he purposed to put the case before the jury that the witness and Mrs Hoff were guilty of systematic brutality towards the unfortunate prisoner in every conceivable way ; thus he trusted that if the jury found that he killed his wife they would reduce the crime to manslaughter. Cross-examination continued—l remember being at the Oxford Hotel on the day of the inquest. I saw Frank G-arlick there. I never used those words to him. I lived some week or ten days with King and his wife before I went to live at my own house at Oxford. King did not turn Hoff and myself out of the house. King told me that he heard in Oxford that Hoff had said his houße was a bad house. Hoff never proposed to sleep in the middle bed place in my hut. I did not refuse to allow him to do so. Mrs Hoff used to call prisoner, sometimes Hoff, and sometimes Ignatz. I have heard her call him " old schwine." I know Mr Q. A. White well. Prisoner and myself worked for him at Q-lentui. At the time I struck the prisoner Mr White came over to see what was the the matter. The wound on the head was about an inch or inch and a-half. Hoff did not deny or admit that he struck at me with the axe. Hoff understood what I said. Hoff took out a summons at another time for what he did not know, but the prisoner did not attend. I don't know why he did not go to the Court. He was not afraid of me. I told him he might go to the Court if he liked. I went because the policeman told me I had to go. I have seen Hoff crying. Mostly when he was crying he was drunk. I never saw Hoff crying except when he was drunk. I have no idea what he used to cry about. I do not remember Mr White coming over just before our leaving Qlentui. I remember Hoff's head being badly cut at this time. Mrs Hoff was willing to go away with her husband and leave me when Mr White told them they must leave Q-lentui. I remember the prisoner showing Mr White a piece of wood from his bed with blood spots on it. He had not been beaten with the piece of wood. Two days afterwards Mr White brought his team of horses to remove the Hoffs. There was nothing said then about my going with the Hoffs. Mrs. Hoff did not then say she would not go. I was working at Q-lentui, and Hoff had also been working with me. I remained at Q-lentui for ten weeks after the Hoffs went. During the time the Hoffs remained at Q-lentui the prisoner showed that he was jealous of me as well as other men. When I went over to Oxford I went and lived with them as soon as the house was built. It came to King's ears that Hoff said that Mrs Hoff and myßelf were making a bad house of his house. I gave Hoff plainly to understand that if he went his wife would have to go. I cannot say whether Mr White told me that unless I left Mrs Hoff there would be mischief. He said that if I did not mind Hoff would kill me. Prisoner was of a very jealous disposition. Mr White did not say that it was in consequence of my conduct with Mrs Hoff that Hoff would kill me. I never told Mr White that, on one occasion Hoff was drunk, and I had to defend myself. I did not tell Mr White that the man might go, but the woman would not. I begged her to go away from Qlentui and Oxford Bush. I have told her to get her clothes together and go. I did so because Hoff always accused the woman of infidelity to me. I was'aware that, for years past, the prisoner was accusing tho deceasod of infidelity to him with myself and others. Mrs Hoff did not make any remark when I asked her to go away. I have heard Hoff say, as to Mrs Hoff, " hoff mine frau Bilby'a frau." I have never seen Hoff with lour cuts on his head or his hair pulled aut. I have never offered to strike Hoff when working in the bush together. I did not see Hoff with his face torn and bleeding some six weeks before Mrs Hoff's death. I never raised an axe to Hoff in the bush. We had a few words in the bush, and I sent him home. I know a man named John Habhn being present when we had a few words, and I sent Hoff home. I used no blows or threats to Hoff. I know Ned Porelka. ? have run after Hoff to beat hi mi in his presence. I never told Perclka that I would kill Hoff. I said if I got hold of that old villain, I would knock him down. Hoff and I did live on friendly terms when ho was sober, I have told tho man to go away, and have thrown his clothes out of doors. Eg uaine back, and asked me to take him in again. There wero other pieces of wo.n, in the house besides what has Ynoca, produoed. There were pieces 01 hoop iron in the house. The pieces produced are the ones. I went, ov»r the embers of the fire on the Wednesday, as the fire was on the Monday. The embers wero a good deal disturbed. Tho gun produced belonged to me. I *old it to- prisoner for £1 ss. I broke it, myself after I had sold it; I broke it over a hard stump. Hoff caino in one day f OI . the gun, very drunk, and I took it i'qr gyauted lie was going to shoot Lie wife. _ He did not say so. Mrs Hoff slept sometimes with her head towards my bod and sometimes her feet. She slopt altoner with her head near mine. Tho plan produced is a correct one. [Plan put in shewing the position of tho buds.] 1 have deeds of tha land; Mr Ingram wrote out an agreement Hoff and myself, which was des» troyed, iu the fytft fire. We uped to live, in &

house at G-lentui, rented by me. I do not know that the prisoner objected to my providing the house for them. I told the woman to go away, but she said sometimes she would go, and then again she would not. Re-examined by Mr Duncan—Tho beds were about 2ft 3in, except Mrs Hoff's, which was about 2ft 6in in width. John M'Gerlick—l am a bushman at Oxford. I remember the fire at Hoff's on Bth July. He came to my house at half-past twelve that day. My house is about threoquarters of a mile from his house. When ho came to my house Hoff did not come in. My boy opened the door, and asked him to come in. When he came in he seemed frightened and shaking. He was very warm, and the perspiration was running from him. I said, "Hoff, what is the matter with you ?" He said to me, " Bill Barrett wants to hammer me." Hoff told me he wanted to take the gun and go shooting birds. He had a gun with him, which had been loaded for a fortnight, and wanted me to draw the charge. I said " I have not a screw, but you wait some minutes and the boy shall wash the gun out." He said, "That is all right. I want that. He had the gun in his left hand, and powder and shot in hi 3 pockets.;l then said to Hoff "I have no time; I must go to Oxford. You come to me next Saturday. I will give you something to do." I went to Oxford, where I heard something about Hoff's wife. I went back to my house. Hoff was there. About half an hour elapsed between my going away and coming back. I told the boy to take the gun and throw it away. I went to prisoner and said to him, " What you do that you kill your wife ?" He said nothing to me that time. I asked him again, " What you do that you kill the woman?" Prisoner said "me for that." I understood him to mean that he did it for " that." He did not say what "that" was. He said nothing more to me. I told him that he must go with me to the 'police station. He said, " Yes, I come." I went with him to Oxford, and met Sergeant McDonald, who took him in custody. Cross-examined by Mr Joynt—l know Bill Barrett. I have known him perhaps for eighteen months. Barrett lived with Hoff. Hoff did not tell me why Barrett beat him. Hoff is a very quiet man. I saw Hoff and Barrett quarrelling in King's house. I did not hear any talk about Hoff's wife. Hoff said to me that Bill Barrett wanted to live with his (Hoff's) frau, which means either wife or woman, and that was the reason why they quarrelled. Hoff was not afraid of Barrett. I have been twice in Hoff's house. I have never seen Hoff and his wife quarrelling. I have never heard Barrett say that he would hurt Hoff. The gun Hoff had was a broken one. Barrett and Hoff seemed to be friendly sometimes, and at others they would growl at each other. Alexander McDonald—l am sergeant of police at Oxford. On the Bth July, I proceeded to a house about a mile and a half from Oxford, the property of Barrett. I found the house on fire and partially consumed. I saw a woman lying in front of the burning house, about ten yards from it. She had several severe cuts on the head and one on the face. They were fresh cuts, and they were bleeding. About three yards from the burning house there was a pool of blood, Lee, Barrett, and others were present. The woman was not conscious. She seemed to be in a dying state. From information received, I went to the bouse of a man named McQ-arlick. I met the prisoner! and McGarlick on the way to Oxford. I arrested Hoff, and brought him to the station. I charged him wiqh having attempted to murder his wife. At 6 p.m. I went back to the police station, where 1 had left the prisoner, in company with Matthias Howick, and charged the prisoner with murder. I said to Hoff, " I accuse you of killing vour wife." Hoff said " Ja, ja." I had a conversation with him through Matthias. I searched the premises, which were burnt that evening, and found the meat chopper produced. The next day I found the shingle hammer produced. I received the tomahawk from Barrett. I afterwards got possession of some clothing, which was saturated with blood. There were also some marks of fire. Cross-examined by Mr Joynt -I received the tomahawk from Barrett two days after the fire. I saw Barrett on the day of the fire. I spoke to prifoner in English, when I accused him of killing his wife, and I believe h» understood what I said. When I first charged him I did not know what he said. [Left sitting.]