SUPREME COURT, AUCKLAND.

Maori Messenger : Te Karere Maori, Volume I, Issue 4, 1 May 1855, Page 3

SUPREME COURT, AUCKLAND.

Thursday, the Ist March, 1855.

The trial of Walter Huntley, charged with wilful murder, in having slain, in the streets of Auckland, a native of the name of Te Kopi, took place before his Honor Chief Justice Martin, and the following Jury:—Mr. C. O. Davis, acting as sworn interpreter upon the occasion, —-Jury— William Crush Daldy (foreman,) Edward Davis, William Davis, George Croucher, Frederick Wood Dawson, William Cunningham, George Cunningham, Antony Davidson, Thomas Dale, William Davis, William Currie, Louis Davis. The following evidence was given in support of the chargeHemi, sworn,—A native of the Ngatikahununu tribe; resides in Auckland ; I remember Christmas evening last; I knew Te Kopi; I saw him on Christmas evening in the town, in his house; I know the house of the prisoner. I saw Te Kopi there about half-past 7 in the evening; I saw him there about that time) the deceased was standing quietly near the prisoner's house, nearly same distance as from the Interpreter to the witness box; I saw the prisoner; the prisoner said nothing; the deceased was standing quietly talking to me, and to others of his comrades. Whilst he was standing there, he was struck; the prisoner struck him ; he was struck with a stick on the left temple ; he said nothing before he struck him ; the stick was not so thick as my arm—about the length of my fore-arm ; the prisoner was in his own house before. On being struck, he (Te Kopi) did not speak, neither

did be walk away; he fell, he turned over; I and my companions took him into the house; he was insensible; the only mark observed was on his temples jTe Kopi was sober; the prisoner was sober. People congregated directly after in the street; the prisoner was taken into custody; Te Kopi was taken to the hospital j subsequently I saw him last in the Colonial Hospital, dead, at the inquest, on the 27th December. j Cross- examined: There were no drunken Maories at the time I was standing there j I did not see drunken Maories on that day; I was there half an hour; my house is in the vicinity, and I had been there in the forenoon also \ my house is near the prisoner's house; I had not seen drunken Maories there; I was in various places during the day. The distance of Te Kopi's house from the prisoner's was about the distance from the Interpreter to the other side of Queenstreet j I was at Te Kopi's house in the afternoon ; I am not quite certain about the hour, perhaps it was 3 o'clock. There was one bottle of spirits drunk amongst ten, of which the deceased had a portion j he was as sober as X am now, during the time I saw him. We had a glass each ;• we emptied the bottle; the glass was not full; it was after dinner; I did not see him take any more; there was no quarrelling amongst the Maories; I was there the greater part of the day; I should have heard and seen had there been quarrelling or disputing; Te Kopi fell immediately. By foreman, X accompanied the deceased there j I saw nothing to cause the excitement on the part of the prisoner. Wirimu Hunia sworn of the tribe of Hakitai living at Pukaki. I remembered the evening of Christmas day I knew Te Kopi. I know where the Prisoner lived I was near there about dusk \ SaW "^ e near *ke Prisoners house about the same distance as between me and the Interpreter. He was standing conversing with me and others, I saw the Prisoner in his own house, Te Kopi myself and others were standing quietly not knowing that any evil was nigh. The prisoner came out of his house saying "Where is the drunken man," and struck Te Kopi with a piece of wood. It was not so thick as my arm and about the length of my fore-arm. It was in his right hand. He struck him on the left side of the head (pointing). Te Kopi fell quits insensible, I was about 6 feet from him. He was taken into a house. That was the last time I saw him alive, I saw him subsequently in the Hospital dead. I had not been very long with him when the blow was struck, not so long as to go to the Governor's house, I saw him before in the house of Te Kopi's brother, I went with him from that house, I received an invitadon early in the morning from Te Kopi to dine with him I was m his company duriDg the whole of that day

neither Te Kopi nor bis party did or said anything to him. I know well that neither Te Kopi nor any of his party did or said anything to cause the excitement of the Prisoner. Nothing whatever took place between Te Kopi and the Prisoner, had anything taken place Te Kopi would have been on his guard and would not have been killed, Te Kopi was sober. The Prisoner was sober, I went in quest to the police to have the prisoner apprehended, when Te Kopi was struck to the ground his friend rushed forward to break the door open and he succeeded, and he invited the Prisoner to come out and fight with him, I heard him challenge the Prisoner 'Come out of the house that we may fight/ that is all I heard. Cross examined.—ln the early part of the day I was in my own house not far from the Prisoner's, at 6 o'clock in the morning I came to the house on Chapel Hill, at 7 o'clock I left it in company with Te Kopi. At 7 o'clock the bottle of spirits was drunk, I have always said it was 7 o'clock I am certain as to the time because one of the party had a watch. He took one glass out of the bottle but I saw him drink nothing more during the whole of the day. We were in the house of the brother of the deceased until 9 o'clock. We went out in quest of the party who had been invited. We went*out about the town in quest of men; at half past 11,1 returned to the house and remained until dinner time 1 o'clock; after dinner we left the house and went about the town, when we had finished the dinner, I think it was about a quarter to 2. After we left, the man who owned the watch took it on board the Vessel j so I do not know the hours. The sun was nearly down before we came back again. During the time I was in the neighbourhood of the house of the Prisoner I neither saw heard any disturbance. I was not concerned in any quarrel myself, in the middle of the day after the native was taken I saw him led away. I saw a policeman lead a native away. The deceased Te Kopi was not in my company during the time I went out in quest of the guests. The deceased was superintending the dinner. That one glass was the only one I saw him drink. I saw Te Kopi coming out of the house of a Pakeha, I do not know what took place I saw no drunken person; only the native that was taken into custody: lam not certain whether that was before or after dinner when I was in quest of th* fuests. I met the Prisoner with a stick in his and, who said to me 'Go back to your house.' I Haka was the man who attempted to break the Prisoner's house. He was the only one. No attempt was made previously. I heard the Prisoner's Wife crying, I imagine she was wishing to keep him in the house, they were striving together. By Court.—By dusk I mean I could scarcely

Bee a man's features at the distance from the seat of the Judge to the Witness box. By Foreman.—No disturbance took place be tween Te Kopi's friends and the Prisoner before the blow was struck, the deceased came on shore the day of his death. He was working on board of a Vessel. TJtika sworn of the tribe of Ngatimahuta resides in Town. I knew Te Kopi, I reccollect last Christmas day. X have seen the prisoner before, I know where he lived. On the Evening of Christmas day I was near the Prisoners house. In the evening when men's faces were hardly visible, I was with Te Kopi and some others at that time standing"near the prisoner's house. We were not long standing when the prisoner came out of his house, whilst we were standing, the prisoner came out of his house with a stick in his band and said 'where is the drunken man', I did not know who the prisoner alluded to, because there was no drunken man in the party. The Prisoner then struck Te Kopi with the stick he held in his hand on the left side of the head, in falling his right cheek struck against a stone. The length of the stick was about that of my fore-arm. He was quite insensible and did not appear to breathe and was taken to the house : they bathed him with cold water and he did not appear to recover: and I assisted in taking him to the Colonial hospital. The last time I saw him was my going to the Hospital, Te Kopi was not drunk when he was struck. He neither said nor did anything previous to his receiving the Wow. Cross-examined 2—l wv at- the place where Te Kopi was killed in the morning, and was in the neighbourhood the greater portion of the day; I saw no other drunken men; I saw no fighting or quarrelling; I did not hear any shouting; in reference to our party, we were quiet; I saw no disturbance amongst other parties, amongst other natives that day; I saw no native peeping in at the window, or doing any thing to annoy the prisoner. Some time elapsed before Te Kopi was carried to the house,- —longer than the time occupied in my examination. Henry Hardington, sworn, (landlord of the Exchange Hotel:) —I recollect last Christmasday ; I lecollect a noise about half-past eight 0 clock in the evening, in Chancery-street; I went to Chancery-street, and half way down the lane I heard a smash of broken panes cf glass; I ran as fast as I could to see what was the matter, and in front of the door of the prisoner's house, 1 saw a native put himself in a fighting attitude, and challenge the person in the house to come out of it and fight, He said, "Why don't you come oiut and fight like an Englishman, and not nse wood ?" (in broken English); I staid with the native about ten minutes, to pacify him; he appeared to be in a state of excitement, either

from drink or some other cause. After the na-1 live was pacified, I then went into the house,; where the deceased lived, about twelve or fifteen yards on the opposite side of the lane; I saw a native lying there, (I thought. at first from the influence of drinking,) till I was informed he had been struck. He was lying on his back, quite insensible; I directed the natives to give him air, and pour water upon him ; after duing that, I went for a Surgeon ; after I came back, I remained in the house with the man until the Provincial Surgeon came, and gave instructions to take him to the Colonial Hospital; there were four or five natives drunk in the house, insensible ; when the man was making this noise in front, there were a great number of natives who appeared to have been drinking. Cross-examined :—I have seen the prisoner for some time, and he was about three weeks in my service; he behaved very well in the duty he had to do; I always found him quiet; he drove the horses to my satisfaction; I had seen the prisoner that day about four o'clock; he seemed to be sober, I did not see him after. Thomas Powley, sworn, (corporal of Police): — I was corporal of Police guard on the 25th December; I went to the deceased's house about nine o'clock; I saw a native lying on the ground insensible;. I apprehended the prisoner, and took him to the lock-up; he was sober; the native was taken up to the Hospital by order of Dr. Davis. Cross-examined:—There was a Native taken up for being drunk, that day in that neighbourhood. Henry John Andrews, sworn:—l am a Surgeon; I was resident Surgeon in the Colonial Hospital during the month of December. On the evening of the 25th, a native New Zealander was brought to the Hospital about half past ten at night; he was insensible, breathing very hard, both eyes closed, the left lid much swollen, and nearly black, the left eye protruded beyond the socket, but not so as to open the lid; there was a slight abrasion of the scarf skin, just under the right eye; the pupil of the left eye much dilated and not contractible under the light of a candle; I feared, from the smell of his breath, he might have been drinking; I waited for two hours, and finding his breathing getting worse, I applied cold water to the head, and mustard poultices to the calf of the legs, to endeavour to rouse him j I watched him carefully throughout the night, and he died about half past five a.m., 26th. A post mortem examination was held; I was present, and conducted the examination, with Dr. Thomson, of the 58th. We discovered no other external marks of violence, but on removing the scalp on the left side of the head, a little behind the left temple, the skull was driven in on the brain, to the extent of about two and a half

inches by one and a half j the bone was broken in several pieces, many portions of the bone driven into the brain, to the depth of one-eighth, or even one-fourth of an inch, from the surface of the bone; the brain was much torn by these, and under them a little fluid and coagulated blood; no other material injury on the body. From pressure on the brain and the fractured skull, the man died; I have no doubt whatever as to that being the cause of death, speaking as a Surgeon. Either something very heavy must have been used, or great suddenness in the blow; there must have been violence of some kind or other; from the size of the piece of wood the witnesses speak of, I really do not think it could have been inflicted, with such a piece ; to produce such an injury, & very violent blow must have been given. Cross - examined:—l smelt his breath, and thought he smelt of liquor j I doubted whether the injury was produced by mechanical injury, or the effect of liquor. Arthur Sanders Thompson, sworn, (Surgeon of 58 th Regiment):— I was present at the post mortem examination of a native, of which Dr. Andrews has just spoken; I entirely agret; with him in his description of the nature and! extent of the injury done to the deceased; pressure on the brain from punctured bone, was the cause of the deceased's death; it must have been great violence to produce it; his brain did not fmell of drink; if it had been caused by that, there would most probably have been a smell. It could not have been produced by the hand, I think; I have no doubt whatever that a blow with the stick was the cause of the man's death. For the Defence. John Kent, sworn, (labouring man at Matakana)l was in Auckland on Christmas-day last; I was in the neighbourhood of Chancerystreet the whole of the day; the people were not quiet; a disturbance took place about half-past two, with some Maories and a Policeman; more than one Maori were engaged in that disturbance ; I do not know any Maories that were engaged ; I took part, and was assisted in getting the Policeman away from the Maories. After the Police had taken the Maori away, they chased me into my house in Chancery-street, just opposite the prisoner's house; there was no more 1 row after; it was not a considerable disturbance; I do not know who it was chased me into my house; it was a Maori; between 8 and 9in the evening there was a disturbance; a good deal of dancing and hooting, and noise, some Wahu natives and Maories; there were drunken people in that neighbourhood, Maories and Wahus. James Fox, sworn, (a prisoner in gaol, committed. for disobedience on board ship.)—l was in Auckland on Christmas-day; in the evening I was in the neighbourhood of Chanccry-street; 1

k io.w the hou e of the prisoner Huntly ; I saw a great many Maorics in that neighbourhood in the evening; I was in Ragan's house, which is opposite to the prisoner's; I came out and f ;und a number of Maories nnd white people round his door and window; I did not at that time see any person who had been struck, subsequently I saw a man come out of the door of the house, and after that I heard a Maori was knocked down They were making a great noise. Sarah Kent, sworn (wife of John Kent) ; —I was in Chancery-street on Christinas-day; this was Christmas evening; a number of Maories came up to the prisoner's house; I was in Huntly's house; I saw a Maori come in and throw Mrs. Huntly down and give her a kick on the breast, I ran thro' the back door, and then I heard the Maori had been struck.

The following witnesses to character were called on behalf of the prisoner:— Richard Newdick sworn, (resides near Auckland.) —I have known Huntly seven or eight years; I looked upon him as a decent man. David Snodgrass, sworn:—The prisoner was about eight months in my employ, he was sober and steady. David George Smalo, sworn:—l have known the prisoner about eight years j he appeared to be a quiet, well conducted man. Bobert Mitchell, sworn. Thomas Douglas, sworn.

The Chief Justice began by laying down the rules of law as to murder and manslaughter. After explaining at some length, the distinction between those crimes, he proceeded to say : In the present case, the first point for inquiry is, What were the circumstances which attended and immediately preceded the act of homicide ? Now, the evidence is far from precise or distinct as to time or as to the order of events. There is one act of violence sworn to by one of the witnesses, Sarab Kent, directed against the wife of the prisoner, namely, that a native knocked her down and kicked her. As to the extent of the injury done, no evidence has been offered on behalf of the prisoner, and therefore we may safely assume it was not a very serious injury. Now, there is no evidence to show that this injury was inflicted by the deceased. On the contrary, Sarah Kent, who was in the house at the time, does not say it was the deceased, but only that it was a native. Indeed there is no proof that this transaction took place before the blow was given to the deceased. Nothing can be more indefinite than the evidence of Sarah Kent. But if we begin by assuming the case most in favour of the prisoner, and assume that this injury to the prisoner's wife preceded the killing, the ease will stand

tlius :—A blow given to a man's wife in his presence is to be considered as being as much a provocation as a like blow given to the man himself. And a man seeing his wife knocked down, could not be expected to examine narrowly the extent of the injury inflicted before he proceeded to punish the assailant. Yet it is still to be remembered tiiat every person who immediately requites wrong by wrong, is bound to take care there be some reasonable proportion between the injury and the punishment, and that there be (as I have said before) no ferocious excess of vengeance, and also that unless there be an actual danger to the life of the person attacked,! there can be no excus3 for taking the life of the assailant. Whatever would have been the guilt of the prisoner's act even on this supposition, and supposing even that the injury had proceeded from the deceased, it is plain that the guilt cannot be diminished in the case of the deceased bein<r wholly innocent and unconcerned in what had previously happened. And, whilst there is no evidence to the contrary, the evidence of the earlier witnesses is clear, and express that the deceased had no part in it. They tell us that some time elapsed whilst, all was quiet, and then the prisoner came out of; his house, and called out —" Where is the! drunken man ?" These words are sworn to, and! it is fair to infer that some kind of injury or insult had proceeded from a drunken man j though what the prisoner referred to, we do not learn from the evidence. ! Even if, in favour of the prisoner, we take it j to have been the only injury which is in evidence, viz.: that to the prisoner's wife, yet the question arises, What was the time that had elapsed ? whether after the prisoner had not had time to ascertain what harm she really had sustained—and at any rate, whether there could be any reason to regard her life as in danger. If then, under such circumstances, the prisoner comers out, and without waiting to make further inquiry, attacks the first man he meets with, and strikes him, not with his fist, on any less vital pait of his body, but with a billet of firewood which he had brought with him, across the eye and temple, and puts into the blow so much force as to break in the bones which are set to protect the brain, and to destroy his life: then, remembering that this is the punishment inflicted by a sober man in requital fur some wrong which he believed to have proceeded from a drunken man, and considering all those circumstances deliberately, you will say, " whether you do or not find in this case a manifestation of that vindictive and malignant spirit which gives to homicide the character of murder." This, gentlemen, is the great question which you have to answer.

The Judge passed sentence in these words : "You, Walter Huntley, have been indicted for the wilful murder of Te Kopi, but have been found guilty of the felonious killing only. Tuc circumstances which have appeared in evidence have shown a ferocious violence on your part, such, indeed, as to render it necessary that this community be effectually secured against any outbreaks of the like kind hereafter. The sentence of the Court therefore is, that you, Walter Huntley, be kept in penal servitude within this Colony for the term of your natural life."