The Nelson Evening Mail. WEDNESDAY, SEPTEMBER 12, 1866.

Nelson Evening Mail, Volume I, Issue 163, 12 September 1866, Page 2

The Nelson Evening Mail. WEDNESDAY, SEPTEMBER 12, 1866.

SUPREME COURT. CRIMINAL SESSIONS. [Before his Honor Mr. Justice Johnstone. } This Day. The Judge took his seat in the bench at 10 o'clock. The following gentlemen were sworn on the grand jury : — Messrs. N. Edwards, foreman, John Beit, H. Beitt, H. Baly, J. T. Lowe, A. G. Jenkins, J. W. Barnicoat, A. S. Braithwaite, D. Little, F. Huddleston, A. T. Curtis. C. 11. Brown. W. C. Hodgson, H. Goulston, James Watkins, J. F. Bhmdell, A. S. Collins, J. I-I. Levien, A. Muntz. His Honor in addressing tlie jury alluded to the great crimes that had been committed and the excitement that ensued. It was the highest triumph of civilization and religion so to control human passions as to guide them in the promotion of human welfare. It was a great triumph of civilization and law when the investigation of great crimes could be approached in a calm and tranquil manner. Time having been allowed for popular excitement to abate, and opportunity afforded to establish the guilt or innocence of the parties accused, this special sitting of the Supreme Court had been appointed, and the investigation of these great crimes could be approached in a proper manner. His Honor drew the attention of the jury to the Maungatapu murders, and said each separate murder must be made the subject of a separate indictment. He presumed that four bills would be presented to the jury to ascertain whether there was prima facie ground to put the men upon their trial. In reference to Sullivan the jury must consider the case apart from his testimony, to see if there was evidence sufficient without that of the accomplice to enable them to prepare an indictment. The four men had been seen alive near Franklyn's Flat by two witnesses. Shortly after, another person went over the road without seeing the party, and another witness passed nearly at the same time without seeing the murdered party. Shortly after, the bodies of the men were found near this spot; and without the evidence of the accomplice it might be easy to establish a prima facie case of guilt against the accused. , The. previous and subsequent conduct of the prisoners would also be taken into the account. The conduct of the man at Deep Creek, taken in connection with that of his associates, would be taken into consideration by the jury. The men were found in company. They had money, gave false names, nnd made false statements. All these facts, without the evidence of the accomplice, would eiv.ible the jury to establish a prima facie case. In reference to the evidence of an accomplice, unless it be corroborated by material facts as to the identity of the prisoners, a jury would not commit the prisoners on such testimony. His Honor scrutinised the statement of Sullivan, and ask."- the jury to attach what importance to it they thought proper. It was their duty to see if it was corroborated by material facts, liis testimony must be regarded with the greatest care as it must have been given under the hope of pardon and reward. His Honor referred to the murder of Battle, and commented on the confession of Sullivan in relation to it, which stood in a different relation to his former confession. The confession of Sullivan in relation to Battle was evidence against himself rather than against, his associates. The jury were called on to consider the judicial admission of Burgess before the Magistrate, in order to see if all the four parties should be charged with Battle's murder. The jury wore requested to approach their duties in an intelligent and unimpas.'ioned manner. His Honor drew attention to an Act that had recently been passed, enabling the grand jury by their foreman to administer the oath to the witnesses themselves, and thus prevent a great deal of confusion in courts of justice. They would exercise their ju-gment as to the number of witnesses they might think it necessary to examine. Having called attention to some trifling cases that had to come before the grand jury his Honor requested them to retire and take the trifling cases first. The jury then retired. The grand jury returned a true bill against Henry Hall. STBALI-G I- ROM THE PERSON. Henry Hall was indicted for stealing a purse, money and watchchains from Frank Flowers, on the 20th of August last. He pleaded not guilty. The following were the jury: — A. Salmon, R. Lucas, T. R. Fisher, G. Elson, R. Smart, I. Hardy, IT. Hargreaves, G. Marshall, C. Moore, 11. Price, J. Primmer, A. Avery. The prisoner challenged W. M'Gowan, Jacob Baily, John Rose, John M'Ticker, and Alfred Hammond. Mr. Adams conducted the prosecution. Tlie prisoner was not defended. The following witnesses were examined : — Frank Flowers, sworn, said: I am a laborer. I resided in Nelson on the 20th August last, at the London Tavern. I know the prisoner, who lived at the same place. On the morning of the 20th, we went out together. I had about £40 in a pocketbook. There were, I think, six £5 notes and ten £1 notes. The money was in my outside coat pocket. I had two letters and two metal watchguards in the pocketbook. I was sober when I went out. We. went. up to town in the bus afterwards. I was not sober then. We returned together. I lost recollection' after getting to town. I was woke up at Trimble's. My pocketbook was safe in the morning, when I. was on ' the beach. I missed the pocketbook when 'Sir'. Cot-

tanamtKmt9Kmafmmmmmmmmmi^K9MMittuußiiif^.tKMjnmD» rw-ui-_«— i___w»p_w«--i-ww--W)ia— »w_p-ii__ Mm^_ j tier woke me up. ..The money, book and chains were all gone. The ppcketbook, watchguards now produced are mine. To the prisoner : I dont recollect giving yon tlie pocketbook to take care of, nor your bringing meinto Trimble's. Hugh Cottier, sworn : I keep the London Tavern. I know the prosecutor and prisoner, who resided at my house on the 20th August. On that day I went to Trimble's, when I found the. prosecutor asleep in, a back room. I saw the prisoner in the kitchen. Flowers told me he had lost his pocketbook. I went to prisoner, who was asleep; I awoke him, and saw Flower's pocketbook sticking out of his. pocket; I called the cook, and took the pocketbook and gave it to Flowers. It contained no money. I identify the pocketbook. The prisoner called me impertinent for taking the book away. The prisoner followed me toFlowers and said what's all this bother. I said he might know something about the money. . He said the pocketbook was just as he found it. Constable Peter Levy, sworn : On the day in question I went to Trimble's, between 1 and 2 o'clock. I spoke to the prisoner and asked him if he knew that Flowers had lost his money. He said no. I brought the prisoner from the kitchen to an adjoining room, and asked him to give up what money he had. He refused. I told him I would search him. He then took from his trowsers pocket £4 in notes and 3s. 9d. in silver and copper. He said that was all the. money he had. and it was his own. He said this three times over. On searching him, in the breast, pocket of his vest I took seven £o notes, which he said was his own money. This was about a minute after his producing the others. From his trowsers, pocket I took a£\ note and two watchguards. He said he was the owner of a schooner, and I should have between £40 and £50 of his. I arrested him. To the prisoner : Yon were awake when I came in. Joseph Trimble, sworn: I keep the Masonic Hotel. I saw the last witness search the prisoner, and saw the latter turn out £4- and some silver. He said it was his own, and it was all, the. money he bad ob: him. The constable, on searching him, found the money as he had described. The prisoner said - nothing — he was drunk, but not blind drunk. A statement the prisoner made before the magistrate was read to the jury by the Clerk of the Court. The burden of it was that Flowers gave him the, money to take care of for him. His Honor said the money had been taken, but was it taken with a felonious intent? The statement of the prisoner, when he was searched, was hardly consistent witii innocence. The denying the possession, and saying the money was his own, was at variance with the fact that the money had been given him to take care of. If the jury , had a reasonable doubt of the prisoner's guilt, let them give him the benefit of it. The jury immediately found the prisoner guilty. His Honor asked Mr. Cottier if he knew anything of the Prussian's previous character. Mw Cottier said he knew him for a fortnight only, and as working in a little schooner. Mr. Reynal Fitz came forward and said he was a Prussian, and was formerly in the Waikato militia. Tlie prisoner was a Prussian, and "was once captain of a Government steamer on the Waikato river. He then bore a very good character. Captain Johnston said he knew the prisoner when he commanded the Sturt on the Waikato. His Honor said he was very sorry to see the prisoner in such a position. As it was a first offence, and he had been three weeks in prison, he should inflict a sentence of three months imprisonment with hard labor in Nelson gaol. Tlie grand j ury here entered the Court and ininformed the .Judge that Sullivan, whom they were examining, had said that his name was Joseph Thomas Sullivan, not John Joseph, as it was in the indictment. The Judge said it was competent for the grand jury to make the required alteration. At quarter-past 12 the Court was adjourned for an hour. On the Court resuming the men charged with the Maungatapu murders were brought up. They all pleaded not guilty, and asked to be tried by a special jury, which was granted. A special jury was sworn in as follows :— C. Canning, W. M'Rae, G. W. Schroder, S. Pike, 11. H. Knowles, R. Pollock, W. H. Turner, D. Moore, G. Bennett, John Locket, W. S. Mortimer, H. Martin. H. E. Thompson, R. Levien, J. F. A. Kelling, H. Stafford, A. Bain, were challenged and retired. -iuitn_ii. R. Burgess, T. Kelly, and W. Levy vjjere then charged with the wilful murder of Felix Mathieu on the 13th June last. Mr. Hart and Mr. Adams conducted the case for the prosecution. Mr. Pitt defended Levy. Mr. Hart injopening the case said, he would not detain the jury with any detailed statistics, but would congratulate the public that the prisoners were to be tried by a special jury, who would be superior to the prejudices and strong feelings adverse to the-prison-ers, which had been shown outside the Court. He then narrated the circumstances connected with the travellers who were seeii on the road near Franklyn's Flat, who were afterwards missed, and whose dead bodies were subsequently found in an isolated spot on the mountain. He should put in a plan of road with the distances marked on at, and prove in evidence the facts which pointed to the guilt of the prisoners. The men who found the bodies would prove that the men must have been murdered, andthe medical men, who examined them after death, would show that they :must. have come to a violent death. It would be proved that the prisoners left the Grey and Buller iu company, and without money, landed in Nelson and lodged there together, and were seen on the road to the Maungatapu Mountain toge-

ther: Levy was known to he at Deep Creek with little or no money, on Sunday, the 10th, and returned from Beep Creek to the others, on Monday, the 11th. They all started together for Nelson on Tuesday, the 1 2th, and were seen on the road on the afternoon of that day. It would be proved that the prisoners, on arriving in Nelson, possessed a large sum of money, and sold gold there to a large amount. They also spent money in such a way as to throw suspicion on their characters, considering that only a little time before they were in a state of comparative poverty. The evidence of the bank officials would be adduced in connection with the previous facts. There could be no doubt that Sullivan was an accomplice, his evidence, therefore, must be received with great caution, and required to be corroborated before any great importance couli be attached to it. The jury would have little difficulty in arriving at the conclusion that all the four prisoners were acting in concert together. The first witness called -was Thomas Br miner: I am a surveyor. I surveyed the country leading from Nelson over the Maungatapu. I made a plan of the road, a copy of which I now produce. I commenced at the Heringa. The map has all the leading facts marked on it, as pointed out to me by Constable Flett. [The map was handed to the judge, the jury, and the prisoners.] The road is a bridle-track around the Maungatapu, having bush and underscrub on each side. The extent ot Franklin's Flat is 30 or 40 acres. A third of the way is by side cutting. The angle of the upper side of the road is very steep, ancl the under side precipitous till you come near to Franklyn's Flat. The width of the road is from 4to 6 feet ; the telegraph posts are from 60 to 100 yards apart. You cannot see more than one or two at a time from the inequalities of the track. From Franklyn's Flat there are no side roads or tracks; it is all bush, nothing clear. I commenced my plan at the Heringa, and chained to the spots pointed A to N by Constable Flett. I made 6. chains from the Heringa to A. From Heringa to Franklin's Flat is 1 J mile. From the flat to Cis 58 chains or nearly fof a mile. From B to Cis 12J- chains ; Cto M 3 chains ; M to L 11£ chains; MtoD 3£ chains; Btol. 90 links ; Dto F 135 links ; FtoG 60 links. [At the request of Burgess a paper of distances was handed to him.] C to HI 28 chains ; C to K 40 chains ; C to L 280 chains. At C there is a rock 25 links above the path on the left hand side coming to Nelson. Mis a stream. I made a sketch of the whole line of road from Itfelson to Deep Creek. I have been over it before. I made this map from Government surveys. I don't know the distance from Deep Creek to Canvastown. From the latter to Pelorus is G^ miles, and from that to the Heringa is 6f miles ; from that to Franklyn's Flat is ) h miles ; from thence to the rock $ of a mile ; from the rock to the watershed 2 miles ; from thence to Dwyer's 3£ miles ; from thence to Porthouse's 6-| miles. A question arose as to the way in which the crossexamination should be conducted, who should have the preference, Mr. Pitt or the undefended prisoners. Burgess said he wished to question Sullivan before the counsel, and Mr. Pitt waived all right he might have in the matter. It was decided by the Court that Burgess and Kelly should interrogate witnesses in the order in which they stood. Burgess said lie expected no advantage to accrue to himself, he was | only anxious to question the prisoner Sullivan. i The witness Brunner was then cross-examined by j Burgess. A person hiding behind the rock C, could | not see from Cto B. The road is a little zig-zag. i There is a bend in the road there. The creek is at the foot of M. From Mto N is 243 yards. The stars indicate the spots shown by Flett, where the j men were found. Sullivan gave me no insiruction j respecting the drawing of this map. I Kelly asked no questions. | Constable W. Flett sworn : In the end of June | last, I went with Mr. Brunner over the road in question and pointed out certain localities. I went in search of the missing men and was the first to find the bodies. I knew Dudley before. I found Felix Mathieu first on the upper side of the track. I thought. more than a quarter ot a mile. I pointed it out to Mr. Brunner. The spot is 15 chains up the hill from the track. The grand jury entered and said they had found a true bill against the prisoners, for the murder of James Battle. Mr. Adams having said he thought it necessary for I the ends of justice the grand jury should assemble | again, his Honor said he should not discharge them j now, but they should have due notice if they were i wanted again. [ His Honor said he thought it desirable the pleas should be taken, and Sullivan was sent for, and placed in the dock. The prisoners were then asked how they pleaded. They all pleaded not guilty, except Burgess, who pleaded guilty. All the prisoners said they would like to be tried by a special jury. The common jurors were then discharged from attendance. Constable Flett continued his evidence ; I found Mathieu, first, Kempthorn, second, Pontius, third, and Dudley last. • The body of Mathieu was 20 yards from the Creek, lying on its back. The Creek is three quarters of a mile from Franklin's Flat. The body of Mathieu was lying near an uprooted tree. The left hand was on the left thigh, and the right by his side. There was a strap behind the back above the elbow, both hands were down. Ho was dead. The legs were strapped close together by a saddle strap. It was the 29th June. I noticed the stab wound in the left side. It was of a circular kind. There-were- two. wounds conjoined. The flesh was not putrid:-* The. weather had been cold. Dudley, was 20 yards, further off, on his face, the head up hill. I noticed a mark round the neck. It w?.s tied with a handkerchief. We next found Kempthorne" 20 or 30; yards - higher' tip. I noticed '• a bullet wound ' behind the ' right' • gar. We ' found no

fire-arms or weapons. Pontius was found lying on his face the head down hill. There were several large stones on the body. The bodies were taken to Nelson and placed in the enginehouse. I accompanied Mr. Brunner over the road and pointed out the loealties to him. The mark Bon the map indicates a tree that had fallen across the track.. The horse could not go underneath it, as it had a pack on his back. The marks DE F G are where the bodies were found as pointed out by me. I was not present when the gun was found. I saw a swag found at H. I saw the horse that was found, the spot is indicated hy K. Cross-examined by Burgess: I was instructed by Messrs. Shallcrass and Edwards to look for the bodies. I accompanied .Bradcock. I set out on Monday, the 18th June. I received my orders from Mr. Shallcrass in person. I was sometimes with Mr. Saxton and the search party. The purport of my instructions in Nelson was to search for the men. I returned to Nelson on the 29th, at the time the bodies were brought. I received no instructions whilst in the mountain. I received orders to search for the men. I searched for them and found them. I received no particular instructions to search in a particular place. Mr. Shallcrass came up on the 29th, but gave no instructions to me. I knew from Mr. Harley on the 28th that Sullivan had confessed. We were directed to search in that locality on the 29th in consequence of Sullivan's confession. I went from the road about 60 yards through the bush, and dropt into the creek. I thought it was more than -\ mile from the track. It is not very steep going up, but the banks of the creek on which the bodies were found are very steep. I then went up the range to the right, foi owing a track between 100 and 200 yards. I was alone when I found Mathieu. The bush is scrub and high birch trees. You could not see far into the bush. You could not see the other bodies fromthe position E. From Kempthorne to Mathieu was about 40 yards. We found Dudley between the other two, lower down. If Dudley had screamed it could be heard where Kempthorne was Ho was the highest, farthest from the creek, and nearest the road. I did not observe the wounds ou Pontius. To Mr. Pitt : We had fine and rainy weather during the search. I can't say how long it took me to go from the road to the bodies. I think a quarter of an hour. The wound in Mathieu's heart was exposed. Charles William Davis, sworn : I am a constable at Nelson. I was one of the Volunteer Search Party, and was present when all the bodies were found. I knew all the men. I saw the body of Felix Mathieu, lie kept a public house, the Cafe de Paris, on the Deep Creek. He was u- Frenchman. The others lived at Deep Creek. Fortius was a digger, and boarded at Mathieu's place. Kempthorn and Dudley were storekeepers. Tho first body I saw was Mathieu's. lie was lying near the root of a tree, his arms strapped behind him, and his legs strapped also. The breast of the shirt was open, and I saw a wound in the left breast near tlie heart. I next saw Dudley lying on his face. He was not tied. Kempthorne was the next leaning against a bank, lie was shot through, the right ear. Pontius was found just after. 1 noticed his lower jaw fractured, and a bullet wound in the corner of the eye. I assisted to bring the bodies down, and was present when they were put in the enginehouse the same day' they were discovered. There were no other bodies tiiere. Felix was placed nearest the door opening on the Government Buildings. Either Dudley or Kempthorne was next, Pontius the furthest from the door. I saw Levy at Deep Creek on Sunday the 10th June, sitting' by the fire in Mathieu's place, in conversation with Dudley, lie said he had come from the Buller to Deep Creek, having heard there was a new rush there. The bodies were lashed to poles in calico, when thoy were brought down. It is 13 or 14 miles from Nelson to the place where the bodies were found. They were in the same state when placed in the enginehouse as they were when found. Cross-examined by Buniess •. Kempthorne lay to the ri -cht of Mathieu, up the hill. Here Burgess remarked that the map must be wrong, saving, I murdered Kempthorne, and I understand the position well . His Honor admitted that the map was wrong. To Mr. Pitt : I was mining at Deep Creek. I had no prospecting claim there. Levy had no coat on when I saw him. I saw it on his arm, inside out. He hud on a dark hat, not a digger's hat. I did not know Mathieu's circumstances. I did not notice , Levy's dress, but I noticed he had a watch and chain, and "a scarf something like what he has on now. Dr. Vickorman was being examined when we went to nress.