Supreme Court of New Zealand.

Hawke's Bay Times, Volume 7, Issue 349, 12 February 1866, Page 2

Supreme Court of New Zealand.

MONDAY, sth FEBUUASY. (Concluded.) WILETO iIUKDEE.

Johk Moses Bateson, deposed: I am a surgeon, a member of the Apothecary’s Society, and a properly qualified medical prac)itioner. I mm-m-------ber being called in to attend Mr loan, at about 10 o’clock on tho morning of the 19 th January. When I first saw him ho was lying on the sand. I immediately placed my hand on ids pulse, which was very weak, and so slow as to be scarcely perceptible, and found that he was suffering from extreats collapse. I then drew up Ins shirt, and dis*

sSßvri;d two nOuudo, OnO Ou each slue of the abdomen, almost horizontal. The wounds had the appearance of being caused by a gunshot. On the right side there was a small circular wound with the edges inverted, and on the left a much larger one, having the edges everted. The omentum, or coat of the bowels, was protruding from the left side. The shot must have entered on the right side, and issued from the left. A man could not shoot himself in that manner with his hands, he must have used some mechanical contrivance. The size of the wound precluded the possibility of it having been inflicted with a pistol; After a cursory examination I recommended his removal. He was accordingly taken into bis own house and placed upon his bed, when I found him suffering from great internal hamiorrhage. I, therefore, administered a full dose of opium, with small quantities of brandy at intervals,Jand remained with him till he died at about 20 minutes before 12. The effect of opium on a person in extreme pain is only to reduce it; it does not injure the mental capabilities of the brain. I gave him opium to make his faculties more clear. I did not tell him that death was approaching. He several times remarked that my attentions to him were useless. I was there when Mr Lee drew up a will for him. I think he fully understood what he was doing. Some time after he died I made a post mortem examination of the body, and found the cause of death internal hamiorrhage, caused by the passage of a foreign body through the abdomen. I think Loan was a little above the average height. The wound was through the middle of his body and almost in an horizontal direction.

Henry Williams, being sworn, deposed: Foan was my partner. The first I saw of him after he was wounded was when ho was being carried into his house. He saw me, and I think he spoke first. He said “O, Harry, I’m a dead man.” They were his first words. He seemed to have an idea ho would not live. He said “O, Harry, this is my doom.” He said “ I am in great pain.” I told him that the doctor considered it a good sign. He said in a hopeless way “ I hope so, I’m sure.” I remember a will being drawn npTor him. I believe it was Mr Coleuso who first said to him “ Have you anything to say to your partner, Mr Williams, respecting your affairs?” He said “ See that my father gets everything, Harry.” I did not know that Mr Colenao said anything of a religious nature to him.

William Coleuso, sworn deposed: On the 19th January, I saw some persons taking Foan into his own house. I was in his house after he was put on the bed. I said to him “My friend, put your trust in God, man can do nothing for you.” I believe he said “ Yes.” On the entrance of his partner, Mr H. Williams, he opened his eyes, and said “ Harry, I’m a dead man.” That was about ten minutes after I told him to put his trust in God. I asked him various questions after I told him so.

His Honor said that he had had to make up his mind from the evidence on a difficult subject, —whether or not the deceased Thomas Foan was in immediate anticipation of death at the time when various statements were made by him, and consequently whether or not such statements were admissible as evidence. He had come to the conclusion that the deceased was in such anticipation at the time, and therefore witnesses might now be recalled, to be examined on that particular.

George Edmund Lee, recalled, deposed: When I arrived at Farrell’s yard I saw Foan lying on the ground. After ho said “A doctor could do mo no good,” I said “ This is a bad case, Foan j how did it happen ?” Ho said “Dick has done it.” I asked “What Dick?” and ho replied, II Dick Farrell.” I again asked how it happened and he said “ He came to me and said * Here’s your rifle,’ pointed it at me, and fired. O, Dick, Dick, what have I ever done that you should put an end to mo like this ? Mr Lee, I can’t understand it I can’t understand it.” Afterwards a doctor arrived, and ho was taken into his own house. I went to my office and returned immediately. Shortly afterwards the magistrates arrived, and statements were made by him which were written down. I did not hear all that passed. I heard distinctly the first answers, but his voice soon became so weak that I could not hear what ho said. Mr Golenso Was beside him, holding np his head, and repeating his words so that tho people in tho room should know what he was saying. He was not on oath. About six weeks before I heard a quarrel between Foan and Farrell. Farrell’s fowls had eaten some of Foan’s potatoes, and there was some loud altercation. Farrell leaned over the fence and said to Foan, “ I’ll strike you down.” Foan then threatened to kick him.

Prisoner : The quarrel was about a barrel which I wanted to get, and we had a few words. That was three months ago. Witness, continued : If it was about a barrel the fowls were also mixed up in it. Henry Williams, recalled, deposed: Afterwards deceased said “ Harry, what does this mean r” I can’t understand it. What have I done to the old fellow? He pointed the rifle at me, said * Here’s your rifle,’ and fired.” They were on good terms and had been so for some time. I remember a quarrel they had some three months ago about some kegs which prisoner had lent him, and which he very improperly wished to gain possession of without giving any notice. I know the number of Foan’g rifle. I recognise tho ono produced as being his. I remember him lending it to Farrell, in whose possession it remained for some time, but finally came into the hands of tho police. I got it from them and put it into the workshop, Foan being out. Farrell had access to the workshop. Next day I missed the rifle from the workshop where I had put it, and asked Foan if he bad got it, telling him I had brought it back. He said that it was all right. I used to see the prisoner almost daily. I saw him on tho 18th ult. I had noticed for some time that he had been talking incoherently about Fenians, and also that he was suffering from a peculiar tremor I do not know whether or not he was under the influence of delirium tremens. He used to break out drinking about once a year, and keep on the spree generally about a fortnight. He had been recently drinking, but had left off for three or four -'days. Ho was generally pretty sober in the morning, and drunk at night during his drinking-bouts. He la a cooper by trade, a bachelor, and has al-

ways oorne me reputation oi being a very harm> less inoffensive man. He has always been very kind to me, I had seen him on the evening of the 18th and believe he was then sober.

It being now 20 minutes before 2, his Honor adjourned the Court for half-an-hour. At 210 his Honor again took his seat. William Colenso, recalled, deposed: I asked Hoan “ Who did it r” and he replied “ Dick Farrell.” I asked him “ Have you had any quarrel s ” and he replied “ No.” I asked “ Have you had any words previously ?”' He said “ No.” I then, to put the matter beyond a doubt, asked him “ Have you had any quarrel yesterday ?” Ho replied “ No.” The next questions were put after the arrival of Mr H. Williams, his partner. I have some medical knowledge.> I felt Foan’s pulse, and found him to be sinking fast. It was rapidly abating. On the arrival of Mr Williams he opened his eyes, and said “ Harry, I’m a dead man.” I asked him if he had anything to say to Mr Williams about his property, and soon after a will was drawn out by Mr Lee. The Justices afterwards came. i. asked thedyingmanquestions which elicited the answers contained in the deposition I was ou one knee on the ground, supporting his head. °

Upon the prisoner being asked if he had any question to propose to the witness, he asked “ Didn’t Foan tell you twice that it was done accidentally?”

His Honok : Up to this time, Farrell, I have carefully excluded all evidence bearing on matters of opinion, leaving them for the jury to decide. I have done this on both sides, prosecution and defence. Of course, if you press this question you are entitled to an answer, but it will entitle the prosecution to bring evidence of a similar kind to tell against yon. Foan did not know whether it was done accidentally or wilfully ; it was a mere matter of opinion on his part, and if opinionative evidence is admitted there will be a great deal that will tell against you, Do you press the question ? Pkisoseh: No.

Hehny Stores Tiffen, being sworn, deposed: lam a Justice of the Peace of the Colony. I remember being called to take Foan’s declaration at his death. It was about 10 o’clock the messenger arrived, and lat once wont to the house. It was a little place, about 10 feet by 9 feet, and was already crowded, so that I had some difficulty in getting in. When I entered, I sat at the table, intending to take his depositions, I saw by his glazing eyes that death was approaching very rapidly. His voice was so weak that I could not hear what he said, and therefore I requested Mr Colenso who was close to his head to put questions to him, and tell me the answers. I have kuown'the prisoner several years. I saw him on the 18th and with your Honor’s leave, I should like to state what took place on that day. His Honor : Farrell would you like this witness to state what took place the day before Foan’s death ? Prisoner : Ho.

His Honor : This evidence, I believe would be of great advantage to you. It tends to support your defence that on the day in question you were not in your sound mind. Will you not have the manner in which you acted that day brought before the Court in evidence ?

Peisoneb : No. If I said anything the day before, it might be something wrong. I don’t want to hear it again.

His Honor : I do not believe that a judge was ever placed in a more trying position than mine is at present. I am precluded, from giving the prisoner any advice, from my position as judge. Is there no person here who can give him advice P What minister attended him at the gaol ? Doctor Saywell here came forward and spoke to the prisoner. His Honor : I put it to you for the last time —Will you or will you not have Mr Tiflen’s evidence ? If you do not, and you are found guilty and condemned to death, if either you or your friends attempt to prove that you were insane at the time of the murder, unless they can also prove that yon are insane now, a thing which no one here believes it can be shown that you had ample chance given you at your trial, and that the very witnesses who were called to support that defence you refused to have examined. For tho last time, will you have Mr Tiffeu’s evidence or not? The Prisoner muttered a reluctant consent.

Mr Tiffen continued : On Thursday morning about 11 o’clock, the prisoner called me out. He told me that he had come to me as a magistrate and a friend, to protect him. I said, “ Nonsense, Farrell, who’s going to hurt you?” He said “The Fenians.” He said that he had taken the oath of the brotherhood, and that they wished to take from him the medals ho woro at his heart and deprived him of his pension, for which cause he wished to get absolved of his oath. They refused to receive his resignation and appointed one of their number to kill him. He said they were watching him, I said " Nonsense Farrell, there are no Fenians here. You have been on the spree, and these ideas have got into your head.” He said “ Will you just come over to Campbell’s (the -Albion Hotel) to speak of my character ?” I said “You go, and I’ll come across in half-an-hour.” He pointed towards the Masonic Hotel, saying “ They are waiting there to shoot me ; I shall be dead in half-an-hour.” I talked to him of Church matters, and lie answered me rationally. I spoke to him of sundry other subjects, on of all which he spoke sensibly, so I fancied there might be some truth in what he had been telling mo, I said again “ There are no Fenians.” He said “ All the Scotchmen are Fenians, with the Superintendent at the head of them. The Resident Magistrate is a x ! eniau, and so are you.” X sent him away, promising him that I would go to the Albion Hotel shortly. - I went over in about a quarter of an hour, and saw Farrell there. I went witlx Campbell into a private room and I said “ O, Farrell, your life is safe enough ; we’ll look after you.” He appeared quite calm, and so I left him. Since the murder I went with the Inspector of Police and Mr A. Koch, the surveyor. I was checking the plan which Mr Koch was drawing. The Inspector showed Mr Koch a place where a'paling had been removed. I saw Mr Sargent point out a place outside the fence. I saw Boyd and Cleary point out two spots, and a third was pointed out by Boyd. All these were marked by Mr Koch

in the plan, Dimbrick pointed out the spot B. Heney Saegent, being sworn, deposed: lam a bootmaker. On the 21st -u.lt., I went to look for the bullet with which Foan was shot. I found a bullet about 20 yards from the fence. I noticed a mark in, a paling the paling now produced is the one.

Inspector Scully, deposed: I got the rifle from either Mr Limbrick or Sir Cleary, I forget which, I understand something about guns. The flattened bullet seems to hare been a conical one, flattened by striking the sand. The mark on the paling appears to have been produced by a bullet but it might possibly have been produced by a stone. I have known the prisoner for 3 years. I lately heard that he was in the army, but I do not know it for a fact. He gets drunk about once a year and then goes on the spree for four or five days. He began drinking this year somewhere about New Years’ Day, and on the 2nd January he was sent to the lock-up for drunkenness, again on the sth ; and on the 10th for discharging a rifle at night- I heard the report of the rifle about ten o’clock and went to his house, which was locked up. Upon my knocking, however, he opened the door, I took possession of the rifle, which I found to be Mr Foan’s. It is the same one that is now in the Court. On the 17th he was taken into custody for breaking Knowles’ window and taking therefrom a jar of salt. He appeared to be sober, and when taken before the magistrate his excuse was that he wished to get rid of his pension, which was more bother to him than it was worth. I noticed something anxious in his appearance. On the 18th I saw him with some bank-notes in his hand. He said he was going to pay all his debts and begin life anew. I advised him to go home and take care of himself. I saw him again at midnight on the 19th. He was in his coll in prison. He was sitting on a pile of blankets, and when he saw me he said “What’s up?” That was all that passed. Peisonee : If you had locked me up for a fortnight when I broke that window of Knowles’s, I shouldn’t have been here now.

E. H. Limbeick, recalled: I pointed out the spot where Foan was lying to Mr Koch. William Palmee, sworn deposed: I saw the prisoner twice on the 19th January, The first time was about halt-past 9. He appeared quite in his usual manner, and asked me a question about a horse, I saw him again about 5 minutes past ten. I was serving at the bar of the Masonic Hotel when the prisoner came in. He was very excited, and asked for a glass of rum, which I gave him. He drank it, and went out. His Honor : The case against you is now closed. You are now at liberty to make any statement you please in your defence, or to call any witnesses you choose. Prisoner : .1 am of opinion that Foan fell over some hoops in the yard. I saw the gun go off, and I saw him fall. I picked up the gun, and that is all I know about it.

James Watson, deposed: I am Staff-Assistant-Surgeon. I have watched the progress of the case and seen the prisoner, and have no doubt that he is at present sane. The evidence which I have heard in the Court to-day is quite consistent with the supposition that he was suffering from delirium tremens at the time of the murder.

His Honor here read an extract from a work on medical jurispudence, which stated that delirium tremens was a formed organic disease of the brain, caused by alcohol, that it was distinguished from other kinds of delirium by the shaking of the hands, that the patient suffered from hallucinations chiefly of a horrible kind, that he was particularly liable when in that condition to commit murder or suicide, that the disease being an organic one, and not a mere stupifaction of the functions of the brain by inebriation, was held in law to render a man irresponsible for his actions. It was further stated that the disease was usually caused by the reaction of a sudden abstinence from alcohol after longcontinued intoxication.

Witness in reply to a question, stated his belief that in this case prisoner was suffering from formed organic disease of the brain, caused by drinking, and not from mere intoxication. I consider that the complete want of motive to commit the murder as another proof of the disease existing I might define delirium tremens as a disorderly state of mind, accompanied by great irritation of body, and caused by drunkenness. I imagine that at the time of the murder his mind was off its balance, and am of opinion that he has now recovered.

Prisoner asked that Dr. Hitchings might be examined as to his state of mind of mind at the time of the murder.

Thomas Hitchings, sworn, deposed : I am a qualified medical practitioner. I heard the greater part of the evidence given in Court to-day, and it is my belief that the prisoner was suffering from delirium tremens at the time of the murder, and was consequently irresponsible for his actions. Delirium tremens is generally caused when a person leaves off drinking after a long spree. The withdrawal of the stimulant so affects the brain as to produce madness. His Honoe then charged the Jury. The particulars of the case were no doubt well known to them before the trial took place, and the feeling of horror which the event had occasioned had not passed off their minds. Occurring, as it had done, in the midst of so small a community as this, it would make it a more than ordinarily difficult task for the jury to divest their minds of any personal or local consideration, and to pay their undivided attention to the evidence which had been brought before them. He had no doubt that many people were strongly biassed either in favor of or against the prisoner ; but if any of them had such a bias, they should cast it aside, and fairly and impartially investigate every question which had been brought before them. The present case had bofin a particularly difficult one, as, from the paucity of lawyers in the province, and one of them being a principal witness against the prisoner, he had been placed in tbe particularly awkward position of having to afford the prisoner every assistance in his power, consistently with his position as Judge. The defence of the prisoner, as they were all aware, was one suggested by himself, —that he was of unsound mind at the time of the deed, and, therefore, that point would have their most serious attention. What they had to study was whether the prisoner's defence wai

boms out by surrounding circumstances, and if they found that such was the case, their clear duty -was to bring in a verdict of acquittal on tha ground of insanity- Both of the medical gentleman—one who had been requested to watch tha case and give his opinion at the end, and one who had been called at the prisoner’s own request—had given it as their opinion that at the time the deed was done ha was out of hia mind. If the jury accepted the evidence of the medical practitioners, who, as scientific men, might be supposed to know more about insanity than private individuals, they could have no alternative but to find the prisoner not guilty; bat if tlic-y concluded that, by the esercise of their common sense, they could judge better on the subject than men of science who had had experience in dealing with the disease, and that the prisoner, at the time of the murder, was of sound mind, and knew that he was committing a crime against God and man, they must find him guilty. Murder is, in law, when ona man wilfully slays another, and is distinguished from manslaughter by the fact that there is malice aforethought. But, however, there had been no attempt to prove that it had been done accidentally, a thing which was most improbable. Again, it had been stated in evidence that the prisoner had suggested that I'oan had dona it himself. This has been proved by medical evidence to have been impossible ; and, therefore* the only defence is that the prisoner was out o£ his mind at the time of the perpetration of tha act. He would now read and comment upon tha evidence. * * His Honor concluded his address by hoping that the Almighty woidd so dispose their minds that the verdict given should ba a true one.

The Jury then retired, and His Honor left his seat at 5‘15 p.m.

During the absence of the jury many people left the Court; but about a minute before they entered the people began to pour in till, on their arrival at 6 50, after an absence of an hour and 33 minutes, the Court was densely packed. His Honor, having taken his .seat, asked the verdict of the jury. The Foreiiak : GUILTY, your Honor. His Honor then put on the black cap and thus addressed the prisoner :—Prisoner at the bar, after a long and patient hearing of your case, iu which everything that could be done in your favor has been done' for you, the conclusion has been come to that you wilfully took the life of Thomas Foan, knowing that you were sinning against God and man. I have now to do my duty to my country, and I entreat you to employ the time you may have left in making your peace with God. It only remains for me to pass upon you the awful sentence of tho law. The sentence of this Court upon you is that you be taken from hence to the place from whence you came, and there hanged by tho neck until your body be dead, and that your body be buried within the precincts of the gaol,—and may Almighty God have mercy on your soul. The prisoner was then removed, and His Honor discharged the Jury with the thanks of the Queen and the Colony, and adjourned the Court till eleven o’clock nest day.