Hawke's Bay Times. Nullius addictus jurare in verba magistri. TUESDAY, JUNE 20, 1871.

Hawke's Bay Times, Volume 17, Issue 1047, 20 June 1871, Page 2

Hawke's Bay Times. Nullius addictus jurare in verba magistri. TUESDAY, JUNE 20, 1871.

It has bnen our intention for .some days past to make a few remarks on a trial for perjury which has taken place recently in Auckland. A press of other master has, up to this time, prevented our doing so; the case, however, has not lost by the delay anything either in interest oi importance. We advert to it no'v in order to deduce one or two impot'tant practical conclusions from it, and to this end it will be first necessary to ffive an outline of the main features of the case. •..,.■•

The accused person, William Percival, was, in the month of June, 1867, paymaster of the forces on the East Coast districts, when it appears that he paid an account to a Mr James Russell by a cheque on the Bank of ISew Zealand in Auckland for the sum of J6lo 10s. The cheque was in due course presented at the Bank by a third party, to whom Mr Russell had fransferied it, and was paid. The amount was also entered to the debit of Mr Percival in hU pass book, but this, it seems, was left at the Bank, and, together with the cheque itself, temporarily lost. After some time Mr Russell seems to have forgotten the circumstance of his being paid, and again applied to Mr Percival for the money. Mr Percival believed that he had paid it by cheque, as in fact he had, but did not teel certain about it; at all events he refused to pay it again until after a reference to the Bank. Pie accordingly applied to the manager for his pass book, and the production of the cheque which it was said had been paid ; but the Bank was not able to find either after repeated appli cations. He was accordingly forced to admit Mr Russell's claim, and sued the Bank in the Resident Magistrate's Court for the amount.

It was during the hearing of this case that the alleged perjury occurred—Mr Percival stating upon oath, and without the slightest hesitation, that he had never signed the cheque in question; and as a matter of course he gained his case. However, but a few days after this, the Bank came across bolh the pass book and the cheque it-elf in a cup board, and on its recovery took proceedings against Mr Percival for wilful and corrupt perjury. For the defence it was proved, by medical evidence, that at the time of the signing of the cheque, the accused had been for several months suffering from illness occasioned by indulgence in alcoholic liquor, and that as the cheque in question was but one of many signed about that time—both on the Bank at Aupklaud and on that at Taranki —it might well' be believed that he had forgotten it, espe daily when taken in connection with the denial of Mr Russell, and the in- , ability of the bank to produce the cheque. These things together, it wa«s . urged, were sufficient, to induce the conviction in his mind that he was

stating the truth. Mr Russell was no fc ! brought forward, as.he was proved to be under medical treatment and unable to • thinly the case'should lfa| e l>een Adjourned, antTnot-liave been concluded untif his evidence wa& taken. After the summing up of the evidence by the Judge (Sir Gr.Amey) the. jury retired for the space of an hour and-a-half to consider their verdictj when it appeared that 7 of the 1$ were in favor of a verdict of acquittal, the remaining 5 being for one of guilty, fhey retired again for another threequarters of an hour without producing any change in their opinions- : After this they were locked up for the night without any kind of refreshments, and at 10 o'clock the-next morning it was found that the majority of 7 had ghen way, and, as it would appear, been starved into agreeing with the minority of 5. The above case teacher, in the most lorcible manner, the necessity of a reform in the laws relating to juries. Tbe forcing a number of men to come to an agreement by means of starvation is nothing more nor less than a relic of the barbarism of a bygone age. It proceeds on ihe principle of making men agree together by force of .circumstances instead of by the force of evidence ; and when we reflect on the well-known influence the condition of the stomach has over the mental- states, we shall be convinced that it is not too great a stretch of the imagination to assume that :'.f that jury, instead of being locked up with empty stomachs, had been provided with food, they would have been able to > iew the case from a more unbias.sing position, and the result of their deliberations would been the contrary to what it was.

Do we deduce from the above case an argument for the abolition of trial by jury? By no mpans. We think that no one man should hold the responsibility of determining at once the guilt and the punishment of an accused person, or be in fact at the same time both juiy and judge. Of all parties (except indeed the accuser) the judge is the wrong*person to decide on the question of guilt or innocence. It is quite true that judges do not now accept .bribe** to influence their actions, but it is no less true that they are liable to be misled. In proof of which *ve need go no further back than the case of Walter Tricker, when a learned -judge was evidently mistaken in his conclusions, but who, nevertheless, adhered to tliem persist-. entlv for a number of years. But we are taught the necessity of a jury reform. As it is in almost all other cases the decision of points depending on evidence should be decided by the majority of voices Such is the possible near approach to certainty. To say the very least it is more likely that the truth ot a question shall lie in the view taken of it by the larger rather than by the. .-mailer number of those to whom its decision is committed ; and from the very nature of questions depending in theirn essence o motives and states of mind that are necessarily secret from man, absolute certainty is often impossible. If, however, an ob jection be raised against a decision by the majority of a jury and it be shown that its unanimity be essential to justice, the remedy will be found in the discharge of that jury which cannot agree and the summoning ot another, and even continuing to do so ■until a unanimous one be found. It will be admitted that it is the aim of the law to supply evidence to a jury sufficient; to guide it in its decision, and its intention is that juries should art ire at the truth as deduced from the evidence

supplied. It is obvious therefore that every biasing circumstance should as far as possible.be kept from exercising any m#uense oyer them, buch a biasing circumstance hunger unquestionably is, especially *oii minds lacking a high degree of conscientiousness, And as it , : #eems to lie pretty much in the discrotion of the judges k> decide as to the question of the necessity of food or o+herwise in such cases we" fciel that at least sufficient should be allowed to a jury under such circumstances as would suffice to prevent the diversion of their minds from the important matters submitted to them.