SUPREME COURT.

Maori Messenger : Te Karere Maori, Volume II, Issue 2, 29 February 1856, Page 2

SUPREME COURT.

CRIMINAL SESSIONS.

Saturday, December 1, 1855. The Criminal Sessions for the District of Auckland commenced this day, before his Honor Mr. Justice Stephen. An unusual interest attached to these sessions in consequence of the trial of Charles Marsden for the murder of the native woman Jierara.

The Court, immediately on being opened, was crowded to excess, but, with the exception of several of the chief men of deceased's tribe—for whom the Grand Jury seals were set apart—there were not many natives among the auditory. The Grand Jury was composed as follows : Messrs. J. W. Bain, J. C. Blackett, Archibald Clark, William Connell, J. A. Gilfillan, James Macky, Henry Matson, JamesO'Neill, Joseph Newman, John Salmon, John Woodhouse Alex. Kennedy (foreman) The Grand Jury having beeen sworn, His Honor delivered his charge to them. He regretted to see that the calender presented so large a list of prisoners and at the same time that so many of the offences were of so aggravated a character. As to the number, it was not so large as might have been expected, considering the space of time—six months—in which they had occured, and since the Court had last ?at. As compared, indeed, with other districts, the calendar presented to tlrem a much less amount of Crime than might have been expected from such a document. And it must be rembered that this accumulation of cases was owing to a cause which every body must deplore—the continued andsevereillnessoftheChiefJustice. There were only two or three cases to which he should draw their attention this day, as It was not possible for them to get through the whole of the business in one day, and as there were several points on which he should have to remark in the other cases. He should therefore only address them to day on those which they would be able to dispose of, and at the conclusion of them they would adjourn till Monday morning, when he should conclude his charge. The first case for their consideration to-day would be that of Charles Marsden, charged with the offence of wilful murder. The distinction between the crime of murder and that of manslaughter was clearly defined by the English law—the former being where life was taken away from malice aforethought, and the other where the crime was perpertrated under the influence of sudden provocation. It was propably, however, unnecessary for him to address them further on these distinctions, as it was the general practice of Judges to recommend the Grand Juries to find for the higher ofifence—leaving it to the Common Jury and the' Court, who would have the evidence brought out more fully before them, to decide the precise nature of the crime. The prisoner would have the benefit of being de-

Tended, and of having ibe evidence of tlie wit. j nesses against him subjected to a skilful cross -examination, while the evidence and defence would be carefully sifted by the Court. It would be sufficient for the Grand Jury to be satisfied that the evidence furnished grounds for the prisoner to be put upon bis trial on one or other of the counts of the indictment —leaving it for the prisoner to try to reduce the offence from the higher to the lower class* He saw nothing in the case to call for further remark, as be thought the evidence that would be brought before them was ofsucb a nature aswould satisfy them that they must find a bill against the prisoner for the higher offence. The Grand Jury soon returned, with a truebill against Charles Marsden for murder, and the prisoner was forthwith placed at the bar. The following petty jury was then empanelled . Edward Gunning, James Hadden, John Hall, W. E. Hanlen, Thos. Hancock, Wm. Hancock, Edward Hammond, Robert Hampton, Samuel H. Hamilton, Frederick Hankin, John M. Hamlin. A. W. Hansard, (foreman.) The indictment was read over by the Registrar. The prisoner, who was defended by Mr. Merriman, pleaded " not guilty." The Attorney General having stated the rase for the Crown, the first witness called was Arthur Walton a boy of 10 years of age (who at first did not recognise Marsden in consequence of the difference in bis appearance caused by bis. beard and moustache being shorn off .J His evidence was the same as that given at the Coroner's inquest. On Saturday, Nov. iO, before breakfast, I was at a place called Kokupaka, and saw a native woman lying dead, and an adze lying by the side of her bead. I was frightened and ran away to Mr. Prior's, who is a bullock driver, and who lives about a quarter of a mile from where I saw thebody. At Mr. Prior's I saw a Maori woman named Temata,wbo lived with Charles Marsden. I told ber that 1 had seen a dead native woman. She cried, and sent me to get some Maories to go to the dead woman. A man called Charles Wood, who is a sawyer, was present at tbe time, also a Maori named Tainati. Two Maori men went, —Tamati and Papahia. Marsden declined to put any question to ibe witness. By Jurymen—l went to tbe bouse where the dead woman waslying, to get some clothes. The body was found in a house in which Charles Marsden and Temala lived, and in

which I also lived. X left Marsden's house on Saturday morning because the Maori woman Teraata and myself were frightened by Marsden, who was going to kill her during Friday night. The woman lemata had left the house on Saturday morning. I had bee i living in Marsden's house about a month. He and Temata quarrelled on Friday night; he was lying on the bed and she asked him to put the blankets on him; be then got up, took a stool in bis hand and threatened to kill her with it. The deceased was not in tbe house at this time, having left again on Friday night to where she lived, because she bad no blankets. There were no intoxicatingdrinks in the house. Marsden was sober; he had been drinking about a week before that. On Saturday morning, before breakfast, deceased returned to the house. She came, on both occasions, to wash. 1 heard no quarrelling between the dead woman and Charles Marsden. When deceased came to the house on Saturday morning, Marsden was lying on the bed. There was an adze in the house at this time. I remained in the house about an hour after deceased entered. Marsden was awake all this time, but never spoke lo deceased. I then left the house and returned in less than an hour. I then saw the dead woman on the floor, inside the door; she was lying on her face, with her clothes on. An adze was lving by the side of her head; it was bloody. Charles Marsden was not in tbe house when I returned. I saw bim as I was going to Mr. Prior's; he was walking about near Henderson's Mill. There was a little bottle of intoxicating liquor in tbe house on Friday; I saw Charles Marsden drink it in the daytime. William Swantson brought it. [The witness here recognized the adze, which was covered with blood.] On cross-examination by Mr. Merriinan, be said, he had known Kerara since she had come to Henderson's bush, about two days. One day before he saw her dead, Marsden did speak to Kerara—said, "Good morning." They had no quarrel; he was not long in the house with the prisoner and deceased; was not an hour—it was some time afterdaylight; the prisoner was in bed; said be was ill; he bad talked foolishly about a week previously. On Saturday was only there in the morning. He talked foolishly the day before the woman was dead. Was quite sure there was no quarrel ~not when he was in the house. By Ilis Honor: Came to Town on Sunday after the Saturday that Kerara was dead. Mardsen had not been at work-that week, but

lie went down to the null three times that week. By ibe Attorney-General: Saw the prisoner everyday that week; he got his meals in tbe house, drank tea and die bread and meat, which was cooked by Temata. He ate and drank the same as usual, and had a little spirits that week; there was some in a pint bottle. Thought this was on Friday , the day before Kerara was dead; did not see more than one bottle that week; it had been brought by Swanston. Mardsen bad been talking foolishly before the- bottle was brought; did not know how many days before —it might be four or five days before. Temata the native wifeof Charles Marsden, was next examined through the Government interpreter. She deposed :1 know tbe deceased. Saw her alive bnfriday last. She came to see me at the house of a man named Prior. I went there from fear • Was afraid of the wickedness of Charles Mardsen ; he threatened to kill me. I left early on Saturday morning. He was in bed. Do not know what took place after. When I saw deceased at Prior's house on Saturday morning, she said she was going to Charles Marsden's house, but did not see her go in. She said she was going to wash at his house. I know the last witness ; saw him at Prior's house on Saturday morningafter tbe deceased went. Sent him to Marsden's house to see if all was right. Sent him because I suspected the wickedness of Charles Marsden, and was apprehensive of somemischief falling to deceased on account of his having threatened to murder me. After a short time the boy (last witness) returned, crying, and told me that Kerara (the deceased) was dead. I am the protectress of the last witness. Had a conversation with deceased on the morning of the murder, and cautioned her not to go to Charles Marsden's house to wash, fearing his violence. She said, " I have no fear of Charles Marsden, he is a pleasant man; the reason he is so violent to you is because you are his wife." I said * * You do not know him, but I do." I wished her to remain where she was. Marsden was kind to me previous to bis going to the diggings. I bad concealed all the weapons in the house, and I think to that caution I attribute my present existence ; my life would not have been spared had I not done so. 1 concealed some in a chest on Friday night. They were edge tools. An adze was amongst them, which I concealed under a basket. Could not swear to the adze. Nothing of importance was elicited from j her cross examination. I

Charles Wood deposed: lam a sawyer residing near Henderson's Mill. Saw deceased alive Ibe last time on Saturday morning about eight o'clock, as I was going home to I breakfast. She was in Marsden's bouse. Charles Marsden was there also. He was in bis bunk awake. Have known him for sixteen'years. Deceased was picking up clothes, j as she was going away, A native man named j Toro was also there, no one else. I saw deceased after she was dead. I remained in the house about balf-an-hour. Marsden was in his bed. 1 spoke to bim and asked him bow he was. He said he was 111. I saw from his appearance there was a great change in him from the day previous j lie said he felt ill and weak. Ido not think he was in bis seuses, be was speaking very incoherently, as if he was talking to some one in the bunk; cannot say what was the cause of bis illness. I have seen bim drunk, but much oftenerseen bim sober; have kown him to be 12 months without being intoxicated, and be has not been drunk within the last month. Always considered his mind was sound until within the last week, never saw him so before. I told bim when I went away that morning that I would call and see bim after breakfast; on my return I called first at Prior's bouse, where I saw a little boy, the first witness who was delivering a message to the witness Temata, to the effect (C thought) that Marsden had done bimselfsome injury; the boy spoke in Maori and I could not well understand j him - I then ran on towards Marsden's bouse; ' on the way, I saw him about twenty yards from his own bouse; he was standing still and quiet; he had nothing in his band. I asked bim how he was; he replied, "I have killed that old Maori woman." I asked him why he did so. He said that if he had not killed her, she would have killed him. He was not the least excited. I went on to his house and he followed. I looked in at the door, and saw the body of the Maori woman dead on the floor; she was lying on her face with her arms under her; an adze was lying on the floor within two feet of her bead; brains and blood were all over the floor. When I spoke to Marsden, be said, "She is dead enough, and it cant be helped." I had never seen the adze before ; it bad blood on it; could not swear to it. I saw the man Toro afterwards at his house; be and the deceased left before I did* By a Juryman.—Knew Marsden when be lived at the Bay of Islands, he did not often I get xlruuk; have not seen him once the

worse Tor liquor during the last twelve months. After be left the Bay of Islands did not see him for fourteen months; believed he Was nt that time in California, he returned to Ibis country in the Tartar sometime in the winter of 1835. He was stupid on his arrival; suppose it was with drink ; when I saw him three months .ago be was quite right. Generally speaking he was a quiet man when sober. I never saw any one laboring under delirium tremens, except Marsden. Monday last was the first time I noticed something strange and peculiar in bis conduct. Never knew him to injure any one. Cross examined by Mr. Merriman -.—The prisoner was ill when I saw him on Saturday morning after breakfast; be did not speak unless be was spoken to; when be was spoken to be answered rationally, but did not seem inclined to enter into conversation. Had seen him on the previous day, he appeared to be very much out of bis mind. Saw bim every day that week; be was going about the house with a Bible, reading and talking, as he said, to spirits. He did not work during the week. Saw a small trifle of liquor in the house on Friday, some three or four glasses, in a pint bottle; bad some of it; & man named Harrington took some of it; saw prisoner take one glass, I gave it to bim, k was about a wine-glassful; gave it to him thinking it would do bim good; lie had not enough to intoxicate him ; did not see any one else have any. Never saw bim like that before. Have known him 16 years, during which be was an inoffensive, quiet man. Prisoner did not attempt to escape after the woman was killed; it would have been easy for bim to do so. Heard him say tbat some persons he knew bad signed a league with the devil. Did not know that he had any quarrel with any one. By bis Honor. I don't know tbe persons he named nor whether they were persons be iiad any ill-will against. Charles Brown, Sergeant Major of the Police. deposed Charles Marsden was brought to tfie Police Guard room on Saturday afternoon, by Charles Wood and Beiyamin Sawyer. They said tbat the man Marsden bad murdered a Maori woman at Henderson's Mill, which is about eighteen miles from Auckland. Took him into custody, and upon examining his clothes found some fresh blood on tbe left leg of his trousers. At the time, he appeared.perfectly sensible. Pat him into tbe lockup and gave the Coro-

ner intimation of the circumstance. During the same night went to Henderson's Mill, and took a coffin, shell, and four policemen; arrived there about half past six. on Sunday morning, and went to Charles Marsden's house, opened the door, and found a Maori woman lying dead, wilh her face on the floor, and a lot of blood and brains scattered about. There was an adze lying near the body all over blood; brought it and the body to Auckland; the adze is the one I now produce. Placed the body in the Guard room. Had an interview with Marsden ; he looked at his watch and told me the time; he has not shewn any s\ mptoms of derangement since he has been in custody. Cross-examined by Mr. Merriman : When prisoner was brought to the Police office, I thought that he was in his perfect senses and that be knew perfectly well what be was about* Mr. Samuel John Stratford, surgeon, gave evidence the same as at the inquest, as follows : I am a surgeon practising in Auckland; have seen the body of the deceased native woman, and find it so much decomposed as to preclude all possibility of a minute examination. On the right side of the ueck I found a terrible wound extending from an inch in front of the outer angle of the inner jaw, to one of the muscles of the back bone, dividing all the large blood vessels and the carotid artery. The wound appeared to have been made wilh an axe or some similar sharp instrument, and inflicted whilst the deceased was on the ground. Such a wound was quite sufficient to produce death. Could not detect any mark of violence from the decomposed state of the body. Cross-examined by Mr. Merriman:—ls it not a common thing for insane persons often to have lucid intervals, during which they are perfectly sane and collected? Such cases have been known to occur in some varieties of madness. Q. Does it not occur in some varieties of madness, that a man will be perfectly sane until you touch on some particular topic, when he at once becomes perfectly insane ? A. Yes; monomania is such a form of the disease. Q. Is not one form of monomania that of the patient fancying he is holding conversation with spirits? A. Yes; but there are also forms of disease besides madness in which such a fancy is indulged. It is the case occasionally in monomania. Q Is not that variety of monomania

particularly susceptible to lucid intervals? Yes; the monomaniac is sane except on that one subject of his madness; but he will rave about it without any person touching upon it. Q. And yet, when the paroxysm is over, lie'will be perfectly sane and collected? A. Yes, that is so. Q. During the time of their delusions, are monomaniacs capable of judging between right and wrong? A. I should say not, I believe not. Q. I believe, however, it is not uncoin, nion with monomaniacs, that you may allude to the obnoxious subject in their presence without it (exciting their madness? A. I could not reply to I his question without being aware of what was said. Q. Well, suppose the case of a lunatic f ringing an action against the keeper of a madhouse and another party, for detaining him in custody—he not being, as alleged, a lunatic ; that, during the whole of the trial, he conducts himself with perfect sanity, even baffling a close cross-examination; but that, on an illusion being made to a corres pondence carried on between himself and an imaginary princess at the top of a tower with cherrv-juice, he immediately goes off into a fit of insanity; and suppose further, that on the occasion of a second trial which he brings against the same parties, be aga'n baffles a close cross-examination by not going off into a fit of insanity when questioned on the same subject of correspondence—would that be a case in point? A. Yes, I can imagine such a case, but I do not see how it applies to this present case. Mr. Merriman:— I will state to the Jury how I think it applies to this case. Mr. Stratford But you are asking for my opinion on a case where monomania existed, whereas you have shown no monomania to exist in this case. Mr. Merriman That is not the questionl am asking you, which is, "Are not all these suppositions, these lucid intervals, consistent with the disease of monomania?" Mr. Stratford I have heard the evidence in this case, and I have heard nothing like monomania proved- I have heard nothing showing symptoms of monomania. Q. What, then, do you consider the evidence in this case does indicate? k. Delirium. tremens. Q. Without evidence of any previous intoxication, how can you say it indicates delirium tremens ? And there has been notlii ng to show imoxicaiion. A. All the circum-

stances, indicate delirium tremens; besides, I heard the evidence at the Coroner's inquest. Q. We have nothing to do with what took place at the Coroner's inquest. From the evidence which has been given here to day, how can you take upon yourself to say it was delirium tremens arising from intoxication? A. I judge from the symptoms detailed by the witnesses, and Ido not think they are consistent with madness arising from any other cause than intoxication. Q. What is there inconsistent with insanity from other causes than drinking, in this man thinking he talks with spirits? A. This form of monomania most frequently exhibits itself under delirium tremens arising from drinking. (The question was repeated.) Such monomania may occasionally occur, but you must show that it has occurred, and more than once, to make it monomania. Q. Do you mean to say there is no such thing as a first attack of monomania ? A. No; but I must be satisfied that it is such an attack before I could believe it. This concluded Mr. Stratford's cross-ex-amination, and the Attorney-General said he had no question to ask in re-examination. The case for the prosecution having closed, Mr. Merriman said he had two witnesses to call for the defence—a man named Prior (who did not answer to bis name) and William Swansion, a shipwright now living in the bush. Mr. Merrimman then examined Swanston, whodeposed :—I live in the bush about five miles from the mill. I know the prisoner slightly; recollect the time thata woman was killed; was there on Thursday and Friday previous to the woman being killed. 1 was in the house of Marsden with three other persons. ~ I bad conversation with the prisoner. He said he was pretty well, only for those confoundedspirils; by spirits hemeant spirits in the air. He said it was "no go;" that if I had anything to say to him, I had better say it at once—the poison was fermenting in his breast, and he was going to die. When I talked to him again, he said he saw tliein put the poison in. I asked him why be drank it if he saw them put it in ? He said he was fascinated, and could not help himself. I did not succeed, in arguing him out of bis fancy. I brought the spirits on Friday Morning ; the bottle would hold about a pint. I had a glass, so had Harrington; Harrington aid that Marsden had had two glasses.

Cross-examined i .Hod known the prisoner two or three months; once saw hinv in Auckland ; be was. tben drinking at the Victoria. His answers about everything except the spirits were rational. Never saw a man cranky before > I gave him the gin thinking it would do him good. The Attorney-General addressed the jury on the case for the prosecution, and Mr. Merriman, afterwards addressed the jury for the defence. His Honor proceeded to sum up. He cautioned the jury against being swayed in their decision by fear. In arriving at a verdict they were not to regard human being, or human consequence. If even they were certain, on leaving thatbox, of havingtheirlives sacrificed, they were still solemnly bound to do their duty to God and to man. The lea rned judge then went into the consideration of the three points, whether Kerara met her death on the day named in the indictment, whether the prisoner at the bar was the means of her death, and whether the deed was feloniously done. The two first points having been quickly decided, his Honor then went minutely and read long extracts in elucidation of the subject. He then recapitulated the evidence of the witnesses, and concluded a charge of great length and ability, which we regret being unable togive, by instructing the jury to find their verdict oirthe points he had named, leaving the question of insanity, if they thought the prisoner was insane, to be dealt with afterwards by him. The jury then retired for the consideration ' of their verdict, and after having been absent upwards of two hours, they came into court in compliance with a request, we believe, from the judge, and informed him through their foreman, that they were not yet agreed, nor likely to agree, upon their verdict. Thereupon his honor told them that he should wait there one hour longer, and if at the end of that time they had not agreed on their verdict, he should adjourn the court till Monday morning and they would have to be locked up-till that lime. The jury retired again to their room, but the Judge had Mr. Hansard, the foreman, recalled and asked him if there were any point of law or evidence upon which they wi&bed for information. Mr. Hansard bowed and retired. His Honor now desired the Government Interperter to inform the Maori chiefs that he wished, if they were disposed to hear him, to address some remarks to them upon'the mode of proceeding in an English Court of Justice, which they had that day witnessed. The

Chiefs replied that they should be glad to listen ; and his Honor then read an elaborate document showing how our law acted and the principles by which it was guided, and it was afterwards Interpreted to thein sentence by sentence, the Chief being furtherinformed that they should be furnished with a Maori translation of it, as well as with an account of the trial of Marsden, which (hey had expressed an anxiety to have. His Honor also told them that he would furnish them, from time to time, with information on the law for their guidance; that if Europeans broke the laws, they were liable to be punished on being brought up; and that he hoped to see the time arrive when the natives had qualified themselves to fill the various offices of the State and the Legislature equally with Europeans. The colloquy was here interrupted by the return of the jury. A breathless silence pervaded the Court. Registrar. How say you, gentlemen of the jury, have you found a verdict. Foreman. We have. Registrar. Do you find the prisouer guilty or not guilty. Foreman. Guilty, with recommendation to mercy on the ground of apparent weakness of intellect. Proclamation having been made in Court, his Honor assumed the black cap, and thus addressed the prisoner -Charles Marsden, you stand indicted for the wilful murder of an aboriginaljnative woman named Kerara, of which, after a very patient and lengthenexamination, the Jury have found you guilty. The learned counsel who defended you urged on your behalf that you were not in possession of your reason: and the jury have so far acted upon this as to recommend you to mercy on the ground of the apparent weakness of your intellect. In this I can by no means concur, and it shall receive no recommendation from me. It is therefore my duty to regard your case as one in which the extreme penally of the law wjll have to be carried out. Whatever might have prompted you to the degree of wanton brutality which yoa so lately exhibited, our du*.y in the matter is clear. What were your motives in sacrificing this female, perhaps God only knows; or you yourself may also know. One thing is clear, that you have cruelly sacrificed a female who never offended you; and, as a just punishment, you will now have to leave this world, and enter into the presence of that God into whose presence you have so lately sent your victim, without a moment's warning, and perhaps

with a'l her sins unrepented of. Without the slightest provocation you did this, and the wanton brutality you have displayed marks you out as an individual whom it would not be safe to ihe community to permit to live. The interests of the community require that you should be sent out of that world in which you have shown yourself unfit to live. It would be dangerous to set you free, and your life must be sacrificed. The sentence I pass upon you exemplifies the humanity of our laws. You sent yo r victim out of the world without a moment's warning ; you will have time given you to repent a longer time, indeed, than would otherwise have, been granted you, owing to the absence of the Governor. That brief lime I hope you will employ in making suitable preparations for quitting this scene, for that you will quit it is certain. I exhort you to improve the short period that will intervene ere you pass into eternity. It would appear from the evidence as if existence had become insupportable to you. Whether you had been drinking hard shortly before ydu committed the murder wej know not, but that you had done so at a former period of your life, and that your apprehensions of spirits was a result of these courses seems to be certain. In my own mind there is no doubt that it was your former drunkenness that brought the demons into your soul, and that the bitterness of these visitations bad rendered life insupportable to you. You would gladly have ended your life, but you dreaded to be a self -murderer: and preferred to die by the hands of the executioner, I have no doubt this was your motive in the perpetration of the horrid deed. You had no feeling of reTenge against any one, and you thought that, as you must kill some one, it was better to destroy a Maori than one of your countrymen. If these were the circumstances, perhaps you are willing to die, but willing or not, your life must come to a close. I trust you will consult with some good clergyman, who will tell you where to find forgiveness, and instruct you in matters which concern the future state of existence into which you will rapidly enter. You have passed beyond human forgiveness, but not beyond that of the Almighty. It only remains for me to pass the sentence of the Court, that you Charles Marsden, be taken back to the place from whence you came, and thence, on such day as his Excellency the Governor shall appoint, be taken to the place of execution, there to be banged by

the neck lill you arc dead, and till you are cold, and may the Lord have mercy on your soul.