The Nelson Evening Mail. WEDNESDAY, NOVEMBER 20, 1867. SUPREME COURT.

Nelson Evening Mail, Volume II, Issue 275, 20 November 1867, Page 2

The Nelson Evening Mail. WEDNESDAY, NOVEMBER 20, 1867. SUPREME COURT.

Tuesday, November 19th, 1867. (Before his Honor Mr Justice Richmond.) (Continuation of the trial of Robert Wilson for murder.) Denis M'Carthy,. being sworn, said: I am a miner residing at Waite's Pakihis, and I was a fellow-passenger with the prisoner in July last from Onehunga to Westport in July last. He bad a mate called Jim, who had a small bit of beard on his chin, with very little whisker, if any. He was between 5 feet 7 inches and 5 *eet 8 inches high. I could not say what was his age. He looked to be a young man, to the best of my opinion he was over 20, but he might have been over SO We were 12 or 13 days coming from Mauukau. I saw him knocking about during that ■time. I noticed his clothes; he had a pair of Bedford-cord pants and half-Wellington boots, and a pair of watertights I took no particular notice of them. He had a coat; I can't say of what color. I could not ly say what color as to hair. When we landed on Sundav evening, the 20th July, I slept in the same room with the prisoner, Lennox, and my mate James Barnewell. I left in the morning, and saw the prisoner again on the Ist August, in the street at Westport. Barnewell was present. I asked prisoner if he got back, and where his mate was? He told rue his mate had gone away to the Caledonian with some mates of his. I asked him no more questions. He afterrwards joined us as a mate next day. The prisoner wanted us to go and heip him with the tent, as it was too heavy, and.next day Barnewell went out with him. On the Thursday or Friday "he told me he had 30/ before we left Westport. We went to Waite's Pakihis with him on the Saturday, and came back on the following Friday. The tent and flv were the prisoner's. I believe the boots produced belonged to James Lennox, and the prisoner used towear them at the Pakihis. He only wore them a few times; he said they were too small for him. We kept very little meat. I did not see the stains till Detective Lambert pointed them out to me. I don't remenfber anything that could have caused these stains. I recollect Alexander Hamilton coining to our tent at the Pakihis, and saying that the murdered man's nam* was James Lennox, but 1 cannot say "whether the prisoner heard it, or if he did, whether he said anything particular about it. James Barn well.,a miner on the West Coast, -and mate of the last witness, who had come with him and the prisoner in the Rifleman from Auckland, remembered the prisoner had a mate, but did not know his name. Recollected that this man had a pair of Bedford cord trousers, and a worsted comforter which he wore round his neck. Could not recollect color, but would know it if he 6aw it. Thought the one produced were something like it. Remarked his bouts, which were watertights, having rough headed-nails, and not like those ordinarily worn by diggers. Those produced are similar to those I saw. The prisoner and his mate stayed at the same house and in the 6«me room with us when we arrived at Westport, and I yaw them in the street on the Tuesday again going in the direction of Deadman's Creek, both together, and I saw the prisoner alone on the Thursday following. I asked him where was his mate Jim? He said he had left him the night before, and took his blankets witli him. When he proposed to join me and ray mate, he said he had a tent and tools and 30/. He next said that he had left his swag about five miles out, and.he asked one of us to help him in with it, which I agreed to do. We wenc out with him to a store at the mouth of Deadman's Creek. We took the 6wag out and undid it. [The witness was here shown the articles produced.") I notice the axe. I think it is the same axe I saw then, but I am not positive.- 1 almost forget the contents of the swag. We afterwards went up to Waite's Pakihis. Jim had a light complexion, light hair, and , goatee beard. I did not notice anything on his wrist; I never noticed any of the stains on the tent, before they were pointed out to me by Lambert, though wp pitched it twice or three times. Thomas O'Toole, a, boatman at Wesiport, deposed to meeting the deceased who was an old friend of his. on his arrival in Westport, they were shortly afterwards joined by the prisoner. The three went into a store, and witness saw the pri_st>ner and Lennox buy an axe at Smyth and Carr's store, a half axe, similar to that produced, with several other little things. He saw the body of the man who was found on Deadnian's ("reek, and did not identify it as being the body of James Lennox, as he merely, went to see the body, and had no suspicion at the time as to who it was. The deceased was called ' Jim' in his hearing, and when he knew, him four years ago, he was a Boman Catholic. • George Dickson, a carpenter residing in Westport, who had been a fellow passenger with the deceased from Onehunga, deposed that he was never .known by the name^of Lennox <$ri board the'Hi^mtiiJr thai-he had two Minds of blan&ets, twef bft&,'9rie,s.land one' ii.ew' red tfnef that%£ wore

a comforter, and that he believed the one produced was his. He had noticed amongst'his things, a bag similar to that produced. The watertight boots produced were the same kind of loots as * Jim' used to wear, whilst the prisoner wore a pair of long patent leather boots.The examination of this witness concluded the proceedings yesterday, and the Court adjourned mtil lo o'clock this morning, proper accommodation having been provided for the jurors, who were, of course, not allowed to separate.

Wednesday, November 20 The Judge took his seat on the Bench at 10. John Murphy, a miner, who had accompanied the prisoner and his mate on their voyage to Westport from Manukau, identified the comforter as having been worn by Lennox, spoke to having seen them together in the streets of Westport after their arrival. On the Friday afterwards the prisoner had told him that it was very wrong of his mate to leave him without having any understanding between them as to buying their tent, tools, etc., and added that if he happened to come across him again, and he was working a good claim, he would ' pull' him for mateship. John Henderson, the mate of the former witness, gave evidence almost to the same effect, and stated that the' prisoner had told him that his mate had joined some old friends and gone to Germans Terrace. GeWge Greenway, a laborer at Westport, remembered arriving by the Rifleman with the prisoner and his mate, who wore Bedford cord trousers, and at times a blue comforter, mixed with white, round his neck, but could not. swear positively to that produced. The man Jim was making small baps of light canvass on board, of different sizes. [Several bags found in the tent were shown to the witness, who at once identified two of them as those which the deceased was making on board the Rifleman.] The witness said that he went with his mate on Tuesday, the 31st August, up the south side of Deadman's Creek, and there they met the prisoner an>! his mate whom' he had known nn board as 'Jim.' They appeared to be coming from a direction at right angles to the creek. They had no «wags nor tent with .them, but they had tools. This was between breakfast and dinner time. Witness spoke to them relative to the tools they all had, and understood that they were prospecting thereabouts. His mate Peter Martin asked them where thev were camped, and they gave him to understand that they were camped some little distance farther up. They then went up the creek again, witness and his mate continuing their journey down, and camping at the mouth of the creek. Andrew Baird, a storekeeper residing at Deadman's Creek, kuew the prisoner, who had been to his store about a fortnight after the 23rd July, with a very large swag, containing an axe, pick, shovel, fryingpan, etc. . The axe was a half axe and like that produced. He left the swag there, and came again for it a day or two after with James Barnwell, and took it away. Henry Roberts, a shoemaker at Westport, on inspecting two pairs of boots found in the tent, nronounced neither of th°m to be long enough to fit the prisoner, whose foot he had measured, and whose size was half an iach larger thau the two pairs produce!. Robert Long, a contractor at Auckland, knew the deceased at that place and at Napier for about 18 months, and lived in the same tent with him for 10 months, having contracts together on the Provin'-ial works at Napier. He used to wear a pair of Bedford-cord trousers and another of moleskin trousers; off the bottom of the latter of which the deceased had cut a piece, which the witness had seen him sew up again. On these trousers being shown him the witness said he could not swear to them, but had not the least doubt they were the same. On the Bedford cords the wrness discovered a patch on the seat, made of the same quality of cloth as another pair which the deceased had possessed. The deceased wore a leather strap round his wrist, which he remembered his sewing together with, white thread The strap produced he believed to be'the same. The deceased had a brown comb, one side having fine and the other large teeth, with the initials J. L. on it, and also a fine black-tooth comb. The deceased was a Roman Catholic, but the witness did not remember ever seeing him Catholic books of devotion. He was about 5 feet 7 inches in height, of light fair complexion, and once stated • to witness that he was about 26 years of age. The hair produced the witness believed to be that of Lennox. His teeth were very regular. It was about seven months since he had last seen the deceased at Napier. Laurence Higgins, a shoemaker at Napier, had made a pair of watertight boots for the deceased, which he believed he could recognise. On being shown the pair of watertight boots found in the tent, he stated positively that they had been made by him. The witness then produced a large collection of measures, amongst which was that taken of the deceased's foot, with the directions given by him when the pair of boots were ordered, and which exactly corresponded. The witness Murphy was recalled, and stated that the deceased had told him that he had bought the half-Wellington boots in Auckland, but had never told him where he bought the watertight^. Dr Bond being recalled by the Judge, with reference to the age of the deceased, which he had said he believed to be about 35 years, stated that it was always a matter of difficulty to pronounce upon the ages of men employed in mining. This concluded the evidence for the Crown. Mr Pitt then called Mr Peter Cooke, shoemaker, of Nelson, who deposed to having measured the prisoner's foot at the gaol. In a light boot he would take measure No. 7, in a strong boot J\ or 8, and he might wear 9. Watertights to suit the prisoner would be made of size No. 8. The Judge then directed that the prisoner should try on the watertight boots, on the Court reassembling after the next adj 'urnment. Mr Pitt then addressed the jury for the defence, and said that it was satisfactory that the first investigation of the case had taken place at a distance, as there was no fear that their judgment would be warped by any previous conclusions or prejudices.. There was no need, therefore to warn them gainst the indulgence of such a feeling: The case" w,aß wholly based on circumstantial evidence, f'.Some writers had laid.it down that such,

testimony should be accepted with the greatest caution especially in attempts to prove the commission of great crimes, because it was principally made up of inferences which might be and very frequently were, fallacious. In illustration of this fact, the learned counsel referred to two instances which had "occurred yesterday during the trial, in which Detective Lambert and Constable Hunter had made contradictory statements as to who first proposed the search in the tent. These it was true, were not connected in any important degree with the issue of the case, but still showing how liable men like diggers, such as were a large number of the witnessess whose daily occupations did not call for such constant exercise of memory as did those of the two officers to whom he had alluded,' were to make] statements Jwhich were not altogether trustworthy. As the Provincial Solicitor had stated in opening the case, the first point to be established was that the body found at Deadman's Creek was that of James Lennox, and the learned counsel submitted that the evidence adduced had entirely failed to prove this, remaking especially on the evidence of Dr Bond, who had examined the body, and who was not a person to speak thoughtlessly on any subject, as to the probable age of the murdered man being 35 years, whereas the other witnesses had stated that the age of Lennox was ten or more years less. The witness Long, especially, who had been intimately acquainted with Lennox, stated that he had once told him that he was 26 years old. Another point, on which a doubt might arise in their minds, was as to whether the body was really that of James Lennox. It had been stated that the nose of the murdered man was broken, and this was partly corroborated by Dr Bond, but there was no evidence to prove that a similar injury had ever been sustained by Lennox, and he was surpiised that the prosecution had not taken greater pains to meet this objection. Another question which bore materially upon the identification ot the body was the time which "had elapsed since the death of the murdered man. This could only he arrived at on medical evidence. Dr Bond had said that five weeks had elaped since the death, but if he was wrong in the matter of the 'man's age, why not in that, of the time which had transpired since his death? Dr Rochstrow had candidly admitted that his evidence was colored by what he had seen or heard in reference to the case. If then it could be proved that the man had been dead so long as this, it was plain enough that it could not be that of James Lennox, and the witness O'Toole, the only one who knew Lennox in life, and who had seen him when dead, could not identify the body, its decomposition having so far advanced. The Crown had taken a great deal of trouble to identify the body as that of Lennox, but although very many articles had been produced, and many witnesses had been called who had beeu on board a small sailing vessel with him, it did not appear that the evidence was sufficiently satisfactory to prove beyond doubt that the articles found in the prisoner's tent did indeed belong to Lennox, and there was very considerable variance in the evidence of Murphy and Henderson as to the color of the comforter. Mr Pitt, after observing that the greatest caution should be observed in receiving the evidence of these witnesses as to dates, &c, reminded the jury that the prisoner's life was at stake, and submitted that the evidence was inconclusive either that the body was that of Lennox, or that the man was murdered at all. But even supposing that they were satisfied of this, were they convinced that the prisoner was the man who did the deed. To arrive at such a verdict, they must be satisfied that the circumstances narrated by the prisoner as to his own movements and those of his mate were inconsistent with any other conclusion than the guilt of the prisoner. The learned counsel then commented on the fact that it had not been established beyond doubt that the prisoner and his mate where ever really at the camping place on which so much stress had been laid by the prosecution; on the difficulty^)!" deterniiningjwhat kind of blood the stains on the tent arose from ; on the conduct of the prisoner atter his return from Deadman's Creek as being altogether irreeoncileahle with the idea of- his guilt, and that no one but a madman would have acted thus; that no other traces of blood were discoverable about the camping -place, or on any other articles except the tent, though the wounds inflicted on the body must have bled profusely, and after reviewing che evidence as to the boots identified by the witness Higgins, he submitted that prisoner's possession of them was quite consistent with the story told by him as to his mate's leaving him. The counsel concluded with an earnest and eloquent appeal to the jury to deliberate, calmly, and thoughtfully upon their verdict, which he said, would decide the late of the prisoner for life or death, and not to lose sight of the possibility his assumed victim might be alive at that very moment. The Court then adjourned until 2 o'clock, and the Provincial Solicitor was replying for the Crown when our reporter left. Remainder of news see Supplement.