Supreme Court of New Zealand.

Hawke's Bay Times, Volume 7, Issue 347, 5 February 1866, Page 2

Supreme Court of New Zealand.

THURSDAY Ist FEBRUARY. A Sittings of the Supreme Court of Hew Zealand, for the despatch of Civil and Criminal business, was held, pursuant to advertisement on Thursday, the Ist February, at ten o’clock. The following are the names of the Grand Jury —J. Anderson, S. Begg, G. T. Fannin, M. Hill, A. Irvine, Y. Janisch, A. Kennedy,!. G. Kinross," 35. Lyndon, J. Rhodes, G. E. G. Richardson, and J. Watt. His Honor addressed the Grand Jury at considerable length. He said that the calendar this half-year would have been an exceedingly light one, had it not been for one charge therein contained, —the moat serious one possible,—that of wilful murder. As to the other cases, he must certainly congratulate the Province on not only the present lightness of the calendar, but the very slight indication of the increase of crime. This Province, he considered, was fortunately situated in comparison with other parts of Hew Zealand, where war, rapine, murder, and lawlessness had been rife. He hoped the happy state of affairs existing in this Province would long continue. He would tell them that their duty was a painful one, yet they had not to try the prisoners, they were not to consider the punishment the prisoner was likely to receive if found guilty, they had not to decide whether he was innocent or guilty,—they had merely to decide from the evidence whether it was sufficient to make a pnma facie case against tljp prisoner. If they found such was the case, they had to decide that it was a true bill against the prisoner; if not, that it was no bill. His Honor then illustrated the principle by each of the cases before them. He stated that the meaning of the legal term “malice aforethought" was not confined, as was vulgarly supposed, to malice against any particular person or persons; for that if a person was to fire a gun into a crowd, thereby killing some present, the malice aforethought would be found in his doing such an action, even though he had never seen the person before, and would he quite sufficient to make it a case of wilful murder. After making a few more remarks, his Honor closed his address. FORGERY. During the absence of the Grand Jury,— Joseph ]H' Guinness, who was remanded from last session until a point of law should be settled, was brought before his Honor for judgment, George Edmund Lee deposed :—The prisoner was for some six weeks in my employment as clerk. He was a discharged soldier—discharged on account of ill-health. I had no evidence as to his character when I employed him. Ido not know anything else against prisoner’s character. Thomas Barnabv deposed :— I am in charge of the gaol at H apier. The prisoner was in my charge. His conduct in the gaol was very good. His Honor then addressed the prisoner. He said ho was respited owing to a question of law, which did not, however, in any way affect the moral quality of the crime. The prisoner had acted most ungratefully. He had been placed by a solicitor in a position of confidence,’to transact business in his behalf, and this confidence he had violated, by forging his employer’s name. In this colony, where so many of the transactions of life were carried on by means of commercial documents, the crime of forgery was one of a particularly grave nature, and one which should be put down with a strong hand. Taking into consideration the good character of the prisoner while in confinement, the sentence ho should award was that he should be imprisoned and kept to hard labor for the space of twelve calendar months from this date. The prisoner was then removed. The names of the Petty Jury were then called over, when it was found that two were absent, one of whom was fined 40s. They, however, almost immediately appeared, and were excused from attendance, and the fine remitted. lARCENY. The Grand Jury then stated that they found a true bill against George Wilcox for larceny, hut no bill against John Sweetman for the like offence, in consequence of the absence of two of the principal witnesses in this case. His Honor enquired whether those witnesses were bound over to appear and give evidence ? It being stated that one of them had been bound over in the sum of £25 to appear and give evidence, he was ordered to forfeit that sum.

The following jury was then called :—James Ashton, John Hawkins, John Close, Leonard Roper, Richard Trestrail, Robert Holt, Win, Henry Frame, James Catherall, Gavin Peacock, John M'Farlane, Louis Batcher, Richard Dolbel. John Chambers, sworn, deposed:—l reside at Te Mata. I sent my dray to Napier on the 23rd September, by Nicholas Wilson, to take wool to town, and to bring goods up from Messrs Kinross and Co.’s. I saw the dray when it returned. Several cases in it had been opened, and the contents abstracted. A case of stationery had nothing left in it but some blotting paper, an inkstand, and a ruler. A case of sherry, which should have contained 13 bottles had only 3 left. A case of raisins and a case of currants had been opened. There were also two chests of tea missing. The case containing stationery also contained wearing apparel.

Nicholas Wilson, being sworn, deposed I am a laborer in the employ of Mr Chambers. I took some wool from Mr Chamber’s place to Messrs Kinross and Co.’s. X got some goods from Mr Kinross; altogether, I believe, 13 parcels. In going home I stayed at Mr M‘Moray’s, a short distance from Tareha’s Bridge. I put the dray and bullocks in Mr M‘Moray’s yard, and stayed at his house for the night. I saw the dray in the morning. Several cases were missing. A case was brought by Mr M'Moray, which I recognised as one which had been on the dray. It was broken open. It contained a pile of blotting paper, a ruler, and an inkstand. I saw the Clive policeman, and gave him information. We searched, and in the whare of a man named Sweetman we found some stationery in a handkerchief, and also stascattered about the floor. I saw a bag containing wearing apparel at Mr M’Moray’s. Next day I found a case of currants planted in the scrub about half-a-nrile from Mr M r Moray’s. It was broken open, and the contents had been dis*

tributcd. I also found a chest of tea about 100 yards from the house in the same direction as the currants. The lid had been partly opened. I recognised all these things as having been taken from the dray. I did not see the prisoner at the bar until I saw him at the Eesident Magistrate’s Court.

His Honor said that there was no case to go to the jury. The principal witnesses were absent, and the evidence before them was wholly insufficient. They had no choice but to find the prisoner not guilty.

The jury accordingly found the prisoner “ Not Giulty.” It being now twenty-five minutes past twelve, the Court was adjourned till half-past one, at which time his Honor again took his seat. The Grand Jury brought in true bills against Waata Kohikohi for assault with intent to murder, and for inflicting greivous bodily harm ; and also against Bichard Farrell for wilful murder. WIXFUL MURDER. Richard Farrell was then brought up, charged with the wilful murder of Thomas Foan, to which he pleaded “ Not Guilty.” His Honor ; Do you know what you are charged with? Prisoner: Yea. His Honor : What is it ? Prisoner: Murdering Mr Thomas Foan. His Honor : Have you any counsel? Prisoner; No, sir; there was none to be got. His Honor ; Such a thing as this could not happen in England. It is most unfortunate that there is not a properly constituted bar in this province. If such were the case I would place this case in the hands of one of the legal gentlemen, and leave it to his professional honor to carry it through.'—You are charged with having wilfully taken the life of Mr Thomas Foan ; and, as you say you are unable to obtain counsel, have you, under these circumstances, any application to make to the Court? Prisoner : None, your Honor. His Honor : Do you desire a postponement ? You need not answer these questions unless you like, but I wish every step to be taken in your defence, just as if you were defended by counsel. Prisoner : No, your Honor. His Honor : At the time at which you are accused of murdering Foan, were you in fear of your life from any persons ? Prisoner: No, your Honor.

His Honoe : If you were told that just before the murder you had said you were in fear of your life from Fenians or others, would you remember it ? Prisoner; I don’t know what they (the Fenians) are. When I did it I was not in my right semes. I had the horrors at the time. I would ajt harm a man in New Zealand if I was in my right mind.

His Honor ; I suppose by the “ horrors ” you m?an delirium tremens I Prisoner ; Yes, your Honor.

His Hosoe : If that is the case you should take steps to prove to the jury that you were not in your right mind at the time of the murder, and just previously. Do you know of any person who would be of use to you in establishing this defence ? Prisoner: No, ycur Honor. His Honor : In the law delirium tremens is treated like any other madness, and differently to mere intoxication. If a man is simply intoxicated from voluntary drunkenness, it is considered in law as an aggravation of his crime, but though delirium tremens is caused by a man's voluntary drunkenness, he is in law considered a lunatic. That, therefore, must be your defence. I believe the Inspector of Police saw you the day previous to the murder. Would you like him to attend at the trial on your behalf? Prisoner: Yes, your Honor.

Hia Honor : The course I shall adopt is this : —I shall remand you till Monday next, and request the Sheriff to communicate with the local authorities to procure any evidence in your favor that may be forthcoming, which shall be submitted to you, for you to make use of or not as you choose.

His Honor then discharged the Grand Jury with the thanks of the Queen and the Colony.

ASSAULT, WITH INTENT TO MURDER,

Waata KoMJcohi was then placed at the bar, charged with having on the sth October, 1865, assaulted George Farrow with intent to murder ; also with doing grievous bodily harm to the said George Farrow.

Mr Spenser was sworn to interpret for the prisoner.

Prisoner pleaded not guilty. The following jury were then called:—Thomas Johnston, Richard Dolbel, John Hawkins, James Ashton, William Tillers, Patrick Connolly, Edward Dennett, James Cafherall, John Close, William Henry Frame, Gavin Peacock, Joseph LeQuesne.

John Hashing being sworn, deposed : —I am a sheep-fanner residing at Waipukurau, and have a station at Waikari, of which Mr Farrow is in charge. On the sth October I was in my house at Waikari at breakfast, in company with Mr Aden, and Mr Farrow, when the prisoner, his wife, and several other natives, came into the house. Kohikohi seemed very much excited and charged me (in English) with having killed a goat of his. He can talk tolerably good English. I knew that one of my men had killed a wild goat, and so I offered him a pound to save trouble. He said that he would either have £3 or he would take away my canoe, upon which I went to the river and got into the canoe myself. Kohikohi, with his wife and the other natives followed ; also Farrow and Allen. I sat in the stem of the canoe to prevent him taking it away. I said “Kohikohi, go home, and to-morrow when your anger is gone we will talk the matter over or else refer it to Mr Heighten.” He replied that the Hau-haus had nothing to do with Heighten (Prisoner was a priest of the Hau-haus). Upon this he rushed at me with the paddle of the canoe uplifted to strike me, but Farrow got between and prevented him. Farrow then cut the painter of the canoe to enable me to escape from the prisoner, who at once plunged him into the river, and while there struck him three blows with the paddle on side of the head. 1 saw the blows struck and the blood running into the river. He then reversed the paddle, and struck the handle at Farrow’s eye. The paddle, was .of totara, a soft wood. Farrow did not strike prisoner, or offer to strike 3um.

Prisoner objected to baying been called a priest of the Hau-haus, and witness explained that he had always considered him a priest because he superintended the incantations, and hoisted a flag on the pole every morning and took it down every evening.

George Faeeow, sworn, deposed:— l am in the employment of Mr Harding at Waikari. I saw the prisoner on the sth October last, with his wife, and some other natives, A dispute took place, which resulted in Mr Harding going into his canoe. The prisoner attempted to follow, bat I prevented him. A good deal of loud and angry conversation ensued, to end which I cut the painter of the canoe, in order to set it adrift. I was at this time standing on a shelf of slippery papa at the edge of th» water, which was about 8 feet deep, and prisoner pushed me in. When I rose to the surface the prisoner struck me three severe blows on the side of the head with the paddle making a wound that I could lay my little finger in. It bled profusely, and incapacitated me for work for a fortnight. He then reversed the paddle, and struck the end of the handle at my eye, I warded off the blow with my arm, when ho aimed a second, and his wife prevented him from striking, I did not threaten him, neither did Mr Harding. Mr Harding was a little excited, but I was not until I was in the water.

Herewiki being sworn, deposed:— l am a Christian. On the evening of the 4th October Waata came to me and said " Let us go over to Mr Harding’s to-morrow to talk about a goat.” I consented and next day he and I, his wife, and three other natives crossed the river. We found the three pakehas at breakfast. Mr Harding asked us what we had come for. Waata said we had come to talk about a goat which he had killed. Mr Harding denied having killed it. Waata told him to own that he had killed it. Mr Harding said that perhaps some other pakeha had killed it. Waata said he would take Mr Harding’s canoe for the goat. Mr Harding got up and went into the canoe, every one else followed. Kobikohi got hold of the painter. Farrow came in front of him and also took hold of the painter. Mr Harding told Farrow to cut the painter. Farrow did so and pushed off the canoe with hia foot, which overbalanced Mr Harding and threw him into the river. Waata then threw Farrow into the water and struck him on the side of the bead with the paddle. He aimed again, but missed him. Mr Harding was just at the point'of drowning at the bottom of the river when he was recovered by a native named Pirika, and dragged ashore. Farrow only saved himself from drowning by catching hold of the canoe. The prisoner, in his defence said that he mast talk from the beginning. On the evening before he went to several natives in the pa and asked them to accompany him in the morning to Mr Harding’s place, because he was going to talk about a goat, and he knew there would be a quarrel, for he had had three quarrels before with Mr Harding, and this time he wanted them as witnesses. Accordingly next morning, accompanied by his wife and four other natives, he went to the house.: Mr Harding asked Herewini what they had come for, and he said they had come to talk about a goat. Mr Harding asked who had killed the goat P He (prisoner) replied that Mr Harding had done it. Mr Harding denied any knowledge of it, and said that some other pakeha must hava done it. Prisoner then produced one of the goat’s legs in proof that Mr Harding had killed it, and demanded £3 or the canoe in payment for it. Prisoner here repeated, in English, some abominable language which he alleged Mr Harding had used to himself and his wife. Mr Farrow had a knife, with which he threatened me, and also shook his fist at me. Mr Harding who was in. the canoe, called out to Farrow, “ Cut his back." I would not understand heavy English, but “ Cut his hack” are words that children can use and I understood them. Farrow shook the knil’o at mo saying “In one moment I will cut you.” I then knocked him into the water and struck him with the paddle. My rage was very great. Mr Harding and Mr Farrow denied that any threats were used to the Maori or any foul language. Mr Farrow stated that he had no knife on him but a small penknife, with which ho cut the painter and then he put it again into his. pocket as soon as he had done so. The Jury returned a verdict of guilty of doing grievous bodily harm. His Honor then addressed the prisoner. It was very desirable that everybody, both Europeans and Maoris, should know that if they wished for fair play, they could obtain it in a Court of Justice. The law of England did not allow any persons to take the law into his own hands, and it was not allowable to use violence except in self-defence, and then only so far as was strictly necessary. He had committed a most unjustifiable assault, and if it had resulted in the death of either of those Europeans, he would have been hung for. wilful murder. The sentence of the Court upon him was that he should be imprisoned and kept to hard labor for the space of nine, calendar months.

The Court then adjourned. FRIDAY, 2nd FEBRUARY.

His Honoe took his seat at 10 o’clock, and adjourned the Court till 10 o’clock a.m. on Saturday the 3rd instl SATURDAY, 3bd FEBRUARY. His Honok took his seat at 10 a.m.

The following juiy was sworn in C. J. Gullv, A. Irvine, E. Lyndon, T. Jauisch, W. Maitbj, W. Routledge, J. B. Brathwaite, J. Watt, John Chambers, W. Marsh, T. Powdrell, J. Rhodes. Samuel JBegg v. Agnes Isabella Stewart and Charles M}lntgre,

Mr J. N. Wilson for the prosecution, Mr Lee for the defence.

The case for the prosecutor, as stated by Mr Wilson, was as follows:—James Stewart, who is a bankrupt, was lately an innkeeper in Rapier, and owed a large sum of money, (about £3,500} to Mr M. Somerville, of Auckland. At a sale of his property, which took place a short lime since, only £1,200 was realized, the value of property having decreased much in that part of the town, James Stewart had some two or three years ago, and while owing a considerable sum of money to Mr Somerville, made over a piece of laud valued at

about £BO, to his daughter, one of the defendants in the case, of which piece of land the plaintiff, on behalf of Mr Somerville, wished to obtain possession, alleging that the transaction was fraudulent, Stewart being insolvent at the time. There was also another piece of land, adjoining the former, which it was alleged he had bought of Messrs Stuart, Kinross & Co., for the sum of £3O, in hie daughter’s name, and of which possession was also sought to be obtained. 3Tor the defence it was contended that Stewart was not insolvent, at the time of his making over the- land to his daughter, but that, on the contrary, at the time of the transaction, be had every reasonable prospect of paying his creditor, and that had it not been for the unforeseen circumstance of the depreciation in value of the property, such prospects would most likely have been realized. It was also clearly proved that the piece of land which was purchased from Messrs Stuart, Kinross & Co., was bought with Miss Stewart’s money, and therefore was her own personal property. The following were the issues for the consideration of the Jury in this case : 1. —Was the Deed dated 9th day of May, 1860, in the pleadings mentioned a voluntary settlement made by James Stewart in the said pleadings mentioned, without regard to the means that would be left to him to pay his debts, if any ? 2. —Was the Deed dated the 20th day of September; 1863, in the pleadings mentioned a voluntary settlement made by James Stewart without regard to the means that would be left to him to pay his debts, if any ? 3. —Was the purchase money mentioned in the last Deed of the 26th day of September, 1863, of the monies of the defendant Agnes Isabella Stewart? The first and last issues of the case were answered by the Jury in the affirmative, and the second in the negative. -The case extended over a period of four hours and a half, in the course of which time an immense amount of irrelevant evidence was obtained, and at the conclusion of which his Honor stated that all the facta bearing upon the case which had been brought before him might have been elicited by a lawyer of ordinary capabilities in half-an-hour.

At one o’clock, the Court having been engaged for three hours, his Honor adjourned the Court for half-an-hour, for the purpose of obtaining refreshment. When he again took his seat, at halfpast one, one of the jurymen Mr J.B. Brathwaite, was found to be absent. His Honor said that he should allow him five minutes, and if he did not appear then, would fine him 40s. Not having made his appearance at the specified time, the fine was'recorded, and a messenger sent for him, who was unable to find him. His Honor observed that “he did not think Mr Brathwaite would be pleased if one of his clerks was to appear so long after the time.” After a lapse of ten minutes more Mr Brathwaite made his appearance, and was asked by his Honor if he was aware that he had kept the Supreme Court waiting a quarter of an hour, and if he could show a sufficient cause for 'the delay. Mr Brathwaite pleaded that he was .‘'unavoidably detained from physical causes.” His Honor accepted the plea and remitted the fine, observing that had business been pleaded, he should not have done so.