SUPREME COURT, Auckland, Saturday, March l, 1851.

New Zealander, Volume 7, Issue 510, 5 March 1851, Page 3

SUPREME COURT, Auckland, Saturday, March l, 1851.

Before His Honor Chief Justice Martin. The Chief Justice took his teat, and the usual form of opening the Court by proclamation having been gone through, the list of Grand Jurors for the district was called over, the following gentlemen were sworn, and formed the Grand Inquest. Alexander Kenned v, E«q., Foreman. J. W. Bam, S. A. Bell, J. B. Bennett, John Chas. Blackett, Peter Bourke, Wm. Brown, Day. Burn, Wm. Connell, J. A. Gilfillan, W. S. Grahame, John '• Gray, Jos. Hargreaves, Samp'on Kempihorne, Thos. Lewis, Lachlan McLachlan Win. Mason, Hy. Matson, Edw. Mayne, G. O. Ormsby, John Salmon, Robe. Vid&l, and John Woodhouse, Esquires. His Honor then delivered the following charge :— Mr. Foreman, and Gentlemen of the Grand Jury,— Amongst the cases in the Calendar there are, unhappily, two in which the acts, in respect of which the prisoners have been committed for trial, have been followed by the loss of human life. They sre cases which will deserve your best considerati >n. In particular, it will be necessary for you to bear in mind the distinction between the two great heads or divisions under which our Law classes all criminal acts of homicide— viz. : murder and manslaughter. The distinction is indeed sufficiently definite— -and i», I j doubt not, in the main, present to your rnmdt, although it may often happen that, owinjc to the variety or complication of the circumstances ot a transaction, great care and patience may be needed in order to apply that distinction rightly. I feel myself the more bound to notice this point on this occasion, because I think that auy person who has noticed the course of the administration of the Criminal Law of late yearf at borne, and, in some degree, in thu colony aUo, will have noticed the working of a disposi'ion to narrow in practice the boundaiies of the first of these ! classei, and in the same degiee to extend those of the second class. Now, every variation of this kind muit create some indistinctness and practical confusion in the administration of the law, but that will uot necessarily be a matter of importance and concern to the whole community. Whether it sh»ll in faci he a matter of such concern, will depend on the nature of the distinction between the Uo classes of crimes. If the classification be merely an aibit ary one, the evil of disregarding it will amount tnciclyto the introduction of so much practical inconvenuuce— but if

the separation b iween ik'tvO C ass a be founded in truth and in the moral constnuti-n of tilings, then will this confusion become an evil of a more serious kind. And such, in fact, does this distinction appear to be. Undrr the head of " Murder" are classed all criminal acts by which human life is destroyed without legal justification or excuse. The malice of the murderer maybe in some cases more concentrated upon some individual, or it may manifest itself in a more general and indiscriminate disregard of human life. But the essence of the crime lies always in this : that there 1 ' is in the offender a malicious or evil heart (in which sense our books explain *he term 'malice' used in the indictments tor this crimp), a malignant disposition of mind which makes the offender reckless and regardless of the life and perion of his fellow man. This malignancy or wanton disregard of the sanctity of human life, is of the essence ol Murder. And it is for upholding in men a sense of this sancity, for the sake of deterring men from following the prompting of this malignant spirit, and assuming a dominion over their brother*' lives, that the Criminal lavs of Homicide is ordained. If this disposition manifeits itself, a man will be a murderer even though he has received some provocation. Thus, if a man , after receiving some slight provocation or offence, retaliates upon the person who has offended him in a cruel and outrageous manner, altogether out of proportion to the offence, and in the indulgence of his icvenge destroys the li/e of his victim — tbis has always been regarded as murder — as being an outbreak of that malignant and reckless vindictive, ness, which it i 9 tne first object of human law to repress. On the other hand, caspi which fall under the second head are marked, and are in some degree excused or extenuated, by the absence of settled malignity—the crime being regarded as in great ! measure due to human error and infirmity. Indeed there are many ca*es of manslaughter in which the killing is wilful— the criminal does at the moment intend to kill, but the attention is not a deliberate one : it 15 not the ougrowih of a settled and vindictive , malignity of Uir h«art, but the result cf gome impulse of passion overbearing for the moment the man's power of self control. The manslayer acts on no settled purpose, but on the sting and heat of some grave and recent provocation, which suspends the power of self-control. Accordingly how great soever the provocation may be, if there has been time and oppor* tunity for cooling, the man will not, after that, be al- j lowed deliberately to assume the authority which be- j longs t>» Civil Society in the whole and tr> pass judgment I for himself upon the offence which he deems himself to have received, and to avenge himself by taking his fellow's life. And if he do so, his act will be murder, being attributable to malic* and revenge, and not to human frailty. As a simple practical teßt, the nature of manilaughter is well shown by the old technical rule of our law, that there cannot be any accessaries before the fact in manilaughter, as there may be in murder : ma-much as the killing i8 in cases of manslaughter, conceived of as being altogether sudden and without premeditation. Such is the distinction between these two classes of crimes. Now true it is, that under the first of these elates are comprised j crimes, attended with a great variety of circumstances, springing from motives most diverse, and e\en differing in their moral character thiough a great variety of degrees. Yet these crimes are all murder ; all cases j of homicide wliolly without legal justification or extenuation—all marked by the malignancy of which I have spoken. Probably it is, in part, to the great diversity of the forms of crime thus grouped together, and made subject to one form of punishment, namely, death, and, in part also, to an objection which some persons entertain to the punishment of death in any case, ;that we are to look for the cause of that tendency of men's minds of which I have spoken ai apparent in many judical proceedings in recent times. The crimes so grouped together, are indeed all great crimes, but they are not felt to b3b 3 equally great. Perhaps, also, it may have happened to some men, that the extraordinaiy atrocity of the outward acts and j circumstances attending some murders of late years, j has taken off the thoughts in some degreu from the intrinsic malignity which belongs to murder in every form. But however this may be— and whatever be the defectiveness, or want of pioportton in our present icale of punishments— and whatever also may be the remedy for iuch defects as may exist— yet surely thus much is clear, that the remedy is not to be found in confusing these two classes of homicide, and declaring a criminal act to be extenuated by reason of error or infirmity in cases where, in truth, no such extenuation exists. For to say this, is to injure the public morality by laying down au unsound rale, as to the duty and accountableness of human beings. For every decision on a question of this kind effects our public moialny;— in part it expmses that mortility, in part it even creates it. In making theie remarki, I I am not speaking by way of censure or complaint of any proceeding ; but the substance and meaning of ■ all that I say, is simply to discharge the duty which is laid upon me of reminding all persons concerned in pronouueing any decision upon a question or this kind, of the grave importance of such decisions— and j I of the need that all the rules of st cial morality for our community (for surh must these decisions in effect be) should be laid down with the utmost possible thought and care. True bills were found on indictments against Peter j Moore j John McGregor (two indictments); Francis Butcher; Ann Lamb, and Mary Martin. The Attorney-General applied to the Court to defer discharging the Giand Jury until Monday. A pri soner named Heke, a native of the Sandwich Islands, had been committed to the Aurkland Gaol, charged with a crime committed at the B.iy of Islands. The witnesses had not yet arrived fiom the Bay, but there was reason to'beliuve they had been warned to attend | the Court, and were most probably on their passage to j Auckland* The Grand Jury came into Court, and their foreman handed a presentment to the Chief Justice made against i the open drain in Queen Street. His Honor ob* served that the Court could take no cognizance of the complaint made in the presentment, but that it should be forwarded by the Court to the Executive Authority, where he had no doubt it would have the due weight and influence it claimed, coming from Buch u body. His Honor then informed the Grand Jury that in consequence of an application made by the AttorneyGeneral, the Court could only discharge them for the I time being, and would requite their attendance again on Tuesday morning. Peter Moore was placed at the bar, and pleaded " Not Guilty" to a chaige of having stolen, from Mr. Fielding's booth, on the Auckland Race Coune, on the 4th of January list, a coat, pair of trow.sers, and waistcoat, belonging to Martin Joidan, the keeper of the booth. Verdict— Guilty. Ann Lamb and Mary McKinley, alias Martin, were charged with htealing wearing apparel, bed clothing, &<\, from a native woman named Elizabeth, in the month of December las*. Verdict— Guilty. (The pu-oner Martin was defended by Mr. George, who appeared (or the first lime at the New Zealand bar.) John McGregor was charged with having stolen

from Isaiah Crowther, on the sth October last, two paper parcels containing a black frock coat, a tweet! coat, two pairs trowsers, and one white waistcoat. From the evidence it appeared that these articles were stolen from Mr. Crother's shop in Official B*y, on the evining of Saturday the sth October last; that on the 7th December following a pair of twred trowsers and tweed coat were brought to him by a pensioner named John Finney, who stated the articles had been given to him byjMcGregor, who resided in his house. The other articles were found in the possession of the prisoner McGregor, in a house occupied by him and Finney's wife, who had left her husbmd to reside with the pnoonei on Olupel Hill. 'Ihe clothes wete cleanly identified by Mr. Crowther, and the pnUono was found Guilty. John McGregor was again placed at the bar charged with having stolen a wich, the propsrty of William Bacon, High Street-, on the 20th November last. It appeared that when the prisoner was arrested on the former information, the constable who had him in charge, observed, as they walked towards the police guard room, a watch guard suspended from the prisoner's neck, and the appearance of a watch in his waistcoat pocket; on their way towards the guard room prisoner slipped the chain from off his neck into his pocket; .shortly after his arrival at the guard room he requested permission to go to the rear of ibe building, where lie was allowed to go under escort ; on I/is return the watch was misssd ; search v»as made in 'he water closet where the prisoner h«id been, and ihe watch, was found concealed under the boards. Mr. Bacon identified the watch. Verdict — Guilty. This trial closed the business on S<uurday, and the Court was adjourned until Monday.

Mondat, March 3rd. Francis Butcher, a corpural in H.M. 58th Regt. was arraigned on a charge of the wilful murdtr of Private Francis McK>own, of the same regiment in the room of the Auckland Barracks on the evening of thf 9(h December last. The evidence of the facts given before the Court was in substance the same as that given at the Coroner's inquest on the day after the deed w >s committed, which was published in detail in the New Zealander of the ll'h December last. Tlie prisoner. Batcher, entered the barracks between four and fiv2 on the afternoon of the 9th December ; the Sargeant of the guird on duty suspected that the lriioner was under the influence of drink, went through ihe military form of pioring him, by putting him thiough hi facings — this test satisfied the Seigeant that he diunk, and by order of the Sergeant- Major the piisoner was placed under arrest, and oidered to his room; he threw himself on his bed and lay there two or three hours; several other toldiers were in the room, and amongst them was the deceased, Piivate Francis McKeown, who, between nx and seven o'clock, was sitting on a form by a table filling his pipe with tobacco, when the prisoner rose from his bed, went over and sat down on the form br»ide the deceased, said " You have betrayed me," and plunged the lareje blade of a pocket knife into his left breast, between the second and thiid ribs; the knife penetrated towards the heart and wounded the large artery as it issues out of the heart ; the prisoner was taken to the guard house by his comrades, and the deceased to the hospi . tali where he died a short time after. Dr. Thompson proved that the wound in the breast caused death ; and stated thaUie had visited the prisoner in the guard house on the same eveaing the deceased was stabbed; he found the prisoner in a state of great excitement from the effects of drink, and other causes; he had been once in hospital before wilh convulsions brought oaby drinking 1 . Co!on«l Wynyard, Dr. Thompson, Captains Nugent' and Parratt, Adjutant Cooper, Serge mt Simms, and the several privates who were examined before the Court, bore testimony to the prisoner's former good and blameless conduct in the regiment; there was no record against him in the defaulter's book ; there wai no evidence of any dispute between the prisoner and the deceased, the men who were in the room when the blow was struck having distinctly sworn th^t they never heard a bad word between them, until Butcher made use of the expression •' You have betrayed me,'' just as he struck the blow. The Attorney-General addressed the jury for the prosecution, Mr. Whitaker for the defence, and His Honor summed up. The Jury retired and after nearly an hour's deliberation returned a verdict of " Guilty of Manslaughter." The Court was then adjourned till Tuesday.

Tuesday, March 4. The Grand Jury were in attendance ; the witnesses in the case of Heke for the murder of Jacky Maitara had arrived, and another indictment had been prepared against a man named Sutherland, who was committed for trial at the Resident Magistrate's Court on Monday. True bills were found on the indictments and the Grand Jury was ducharged. Thomas Sutherland was placed on bis trial, and found guilty of an assault on a native, with intent to commit an unnatural act. Heke, a Sandwich Islander, but lately of the Bay Islands, 'was arraigned on an indictment charging him with the wilful murder of Jachy Maitara (also a native of ihe Sandwich Islands) at the Bay of Islands, on the ]Bth January last. The prisoner understood ths Maori language, having been nearly four years residing among the natives at the Bay of Ulands ; and Mr. Meurant, acting as interpreter, reaJ over the indictment to him, and the question being put to him " Guilty or not Guilty ?" the prisoner said he was guilty of having killed the deceased by the blow, but pleaded that he did not intend to ki'l him. Tke Chief Justice requested the Key. Thos. Buddie, who was in court, to 6»y what he understood by the prisoner's statement. Mr. Buddie said that he clearly understood ths prisoner to lay that he had killed Maitara, but that it was not in his heart to kill him at the time he struck the blow. His Honor said that was what lie also undeistood the prisoner to say, which was a plea of not guilty. Mr. J. W. Bain, Consul at Auckland for His Hawaiian Majesty, applied to the Couit for Counsel to defend the prisoner, who \va6 det>titute of the mean* to re tain 1 an advocate. His Honor requested Mr. Abiaham, an English Bairisterwho has but recently arrived here, and who was the only practising member of the bai in court, to defend the prisoner. Mr. Abrahams promptly acceded to the request of the Couit, and asked for a few minutes time to read over the depositions before the trial should commence. After brief consideration the learned counsel returned to court, and enquired whethei the Court consideied a jury composed of Europeans the proper tribunal to try a prisoner who was a foreigner— or whether there should not be a portion ol the juiy composed of men belonging to the same nation hj the prisoner, c, t >ecmlly in this instance, where a jury of Kuropeans> could have no Knowledge ot the hat-its ol those tribes tribes of people to which the piisouer hclougtd.

The Attorney-General said that it was competent for the Sheriff to summon i to serve on Jurie*, in Mich cases, a number of the countrymen of foreigners about to be tried, if they could be procured, bat if not a Jury of Her Majesty's subjects was competent to try foreigners in times of peace, for the commission of crimes committed wi'hin the peace of the Queen. His Honor said that our Colonial Law protect., all who reside within the bounds of these shores, and that the Courts of the Colony were competent to take cognizance of all crimes committed agaiiiht the peace of Her Mfjesty within the same limits. Te Kati, a native chief of the Hay of Islands district, was then cworn, and stated that be knew the prisoner and the deceased ; l.c remembeied seeing ihem at his settlement on the 18th January last ; the deceased came first, and w<is sitting by the side of witness when prisoner came; d'-ceased said to prisoner "Where have you been lookm<? forme?" the prisoner made no answer but btood still ; dirtcUy after, prisoner laid hold of an axe, and strucflnleceaspd on the foiehead ; the a.xc was a large one: this is the axe (indentified it); it was with the head of it he stiuelc him ; witness asked prisoner what made him come there to Kill the man on the top of him ? and why he did not tell him that he had come there to kill some one ? prisoner laid j •' I'll not speak to you lfst you bliould save Jacky j Maitaro ;" he took the axe In the middle with both hands ; when the deceased fell I saw he was still breathing, and I went at once to Mr. Woods and the chief Walker and told what had happened. Cross-examined by Mr. Abraham— About n quarter ' of an hour elapsed before the arrival of tbe deceased and the prisoner ; it was f-fter mn down — dusk, when they arrived; knew them both before— deceased belonged to a vessel ; prisoner lived with witness ; knew nothing of a money transaction between them ; heard the prisoner say, on the same night, to Mr. \\ ond and Walker, that tbe deceased awed him six shillings, which be had refund to pay him. j By the Court — The blow was struck immediately i after the deceased enquired where the prisoner had been looking for biro ; deceased came first to the settlement a« the sun was dipping— the prisouer came at dusk. Pflora Te Wn-a, father of the last witness, being sworn, stated that be belonged to the Bay of Islands ; knew the prisoner and the deceased ; they were at his I settlement on the evening of the 18lh January latt ; deceased came first and was there when prisoner ! arnved ; deceased was sitting down; he said to pi i- I soncr " Wbeie ha-re you been V' prieonet «aid " eat;" nn axe was lying on the ground behind deceased ; p-isoncr caught bold of the axe and gave deceased a blow on the foiehead ; witness did not ask the prisoner any queations, but Wnlker Nene did; Walker s,aid "What did you beit the foreigner for?" tbe jnifloner said "On account of my money ;" Walker enquiied "How much money?" prisoner replied •< six shillings of my money ;" Walker said " Friend, was it for that sum you killed the man f" he said "Yes, it was for my money ;" this conversation took place on tbe. spot on the same evening. J By tbe Foreman of the Jury— Has known the prisoner nearly four years ; he was an old hand of his ; does not know how long tbe money was owm<:, nor whether there had or had not been any ill feeling between them. By Mr. Abraham — Walker asked tbe, prisoner twice why he had killed the man ; to the first question he replied for tis shillings; to the second he answered for my money. By the Court— There wns food lying before the deceased wbtn the prisoner said — "eat;" there was only one blow given — the prisoner was standing when he gave it. Samuel Hayward Ford stated that he was a surgeon residing at the Bay of Wands ; he attended the deceased on Saturday the 18th January, after he received the blow ; on examination he found a severe wound on the lower part of the forehead ; it was <\ lacerated wound about one and half inch m length and half an inch in width, extending inwards to the bone ; lie remained at witness's house till the time of Ins death, which took place on the Thursday following ; he was insensible dming the greater part of the time, except when he fiist came; then l,e, deceased, thought he was in a dying state ; on that night he stated that he had been wounded by a man named Heke ; that he was a very bad man for knocking him on the head, and ihbt he thought he woul'l die of the blow ; witness examined the "body after death; the resuit of that examination led him to have no doubt that the man died from the effects ot the wound on tbe forehead. This closed the case for the prosecution ; there were no witnesses called for defence. The Attorney-General addressed the jury, followed by Mr. Abraham on behalf of the prisoner ; the Chief Justice gummed up the evidence, and tbe jury, after half an hour's absence, returned to Court with a verdict of " Guilty of Manslaughter." The Court then adjourned till ten o'clock this morning.