JUDGE AND JURY IN NEW ZEALAND

Otago Daily Times, Issue 260, 20 October 1862, Page 6

JUDGE AND JURY IN NEW ZEALAND

(To tlie Bdttor of the Otayo Daily Times.)

Sir,- -I yesterday witne*eed the trial cf a case in tlie Supreme Court, tlie drtaiis of which I think it but right to the community to set forth more fully than'the reporters of the press have done. I feel bound to do so, because i am conscious that T myself have more th;m once been guilty of the offence for wl«ich the prisoner yesterday, wns sentenced to nine months hard labor; and (hat in conversation -with some of the most re&pectable merchants in the town, I find that they too, have boen guilty of this crime; which the judge would not even allow to be explained away. The case J allude to, is;that of a' man called James Smith. I know nothing- of him beyond what appeared in court, and whether his character be pood or bad, I cannot say. nor I prcsuhte can the judge who directed his conviction, nor the jury who ohoYe'd t'uatdirectioD, somewhat, asifcseemed to me, unwilHiijrly. I only know tlmt [trembled as 1 heard the words ot thp gudge, and the sentence of the jury, and repeated to myself the language of the prisoner, "it appears tome that a jury is not requiredUiere at all. If that's New Zealand'law, God keep me out of it" : '■•■■■•.■;

The facts dieted at the trial were'■ .these: The prisoner was in ' partnership With a Mr Ward at V- etherstone, and was down I presume, on business m Dunedin in June last. On bis way back to Wetherslono he seems to have fallen sl-ort of money. and leqnested' Mr Horr, hotel keeper at West Tmeri ; .f-o cash' a cheque for him for thirty shillings. Mr Horr gave him the thirty shillings, and received in exchange a cheque toy the amount on the 8.-mk 'of .New Zealand, on the printed form of thrit Itan'k. Thi3 printed form has the word ." Duncdin" printed at the head of it, and this Vame form, as appeared in evidene, is iiped at Welberslone, it being the practice there to score out the won? > " Dunedin " ami write in the word '^ Wethenstoric ;' but the wifness, M r Ochiltree, Manager of .the Bank of New Zealand at "Wetherfetone. swore that it was not uncommon for persons there to neglect- to score out'the. word'" Dunedin," and that the mistake was so ÜBimporlfti>fe that he sumetifo.es paid his customers' cheques witmiut the necessary alteration. The prisoner l.nd no account in the Bank of New Zealand at Duuedin, but ho had an account "at the Bank at Wethcrstone. I'M firm of Smith and Ward also had an account at the same Bank at Wetherstone, and Mr Ward had ab'p'an account at the same baak and Sir Ward ; aiso had his private account there. Mr Horr having1 passed the cheque in question to bis* credit," it" was duly presented at Dunedin,; and returned 'With the words "noaccount." He forthwith, and without any communication with the 'drawer-of the cheque with'a view to ascertain whether there was any mistake, laid an information before a Magistrate, had,' Smith arrested-* and he- was yesterday tried. In the depositions before: the Magistrate. a \p seems that Mr Harvi the prosecutor, .did not say that Mr Smith had stated that he had an account in the Dunedin.Branch of the Batskj neither did;be say so yesterday in his direct examination ;;but inilusicrossexamination he swore that Smith, told bira itliat li« had money in Duncdin. Tb£counsel for.the prisoner, Mr. South, defended him on;.. the ground tbajh tbe thins: was. a mere, mistake on the. pare of tbe pixsojier in. not .scot ing out the, prmted, word f'Dunedin,'' and writing: *f Wetherstone;" and proved through Mr Ochiitree that such , ; mistakes .'are far from uncom-, mp.n. His Honor, the Judge; got down right angry' at. this defence, and used altogether, or very nearly, the following,words:—".-I cannot allow th;s defence . Jt ia a mere waste cf public time. If J you;-, (Mr South)* were to prove that the prisoner had an account in any bank in the coloay.except tlie Bank of New : Zealand in Dunedin. it \ cquld not be of the .slightest avail 'to him, and f should tell tbat there is absplutcjy ; no defense.: This if the; clearest cr.se i ever saw."^■./W^en h?a,r<' th,r?e'.words, my blood ran cold, lam conscious that I jhave myseff cdmhiitted this mistske, or ciixne, as iC,i|Ppe^rs to be more than once,. that if I .had a bad^-charflcter, or, wore a bad coat, I should Infallibly, have ;been;Busj pected,and.perhaps fpuhdj^ijty/i'lkno^itnxay.be said that the pro?eciito.r^s- eyidence Jput it Jjeyond being a mistake, because lie swore attlie trial, althpugE not before the committing magis^te^ that the pri,soriei: said }je';l»ad tlie; ; mo^yJinTtDunc^jn;-^^^^^ Surely it cannot be la^w^ that ibe^id^e should cpmp"e! the jury to find the prispner guilty, and ;us^ words s,o strong as to give them^jjiejmpr^&n^fat't^y^jiye no option. in> the; matter, ey.eri, tliou^K;; Jfebajt ■w^rertbe evidence.1 ;■ Mr.Hpnyno, doubt, Ji^i ijte. ipopressioi»i at the time:be^tobkitbe cheque^ on.tHe.,sih pfjjune, 'that ;the.uplacesa where,; the money Avas,l^ff?jijWas Dunedin. lOc^bfjrl, swears it foi?■ vtjhex-firafc tinie^tl|^t Ttlie told bimsoi iSoWi {Oight^fe^ie^diffirence; between bfipg; told so/and takinjl;.dtfpj.grant^ v as.afac^ of us atthe endiof^^urjmpriths. ;^n^eo^ anf j^ch statement.. X asfc th%;a;ease; in ought trtibe tblditb&t they must convict^ or ;ip^rbich counsel for the; prisoner jshpuldrbe told |liat it's a mere waste o£>time to^l^ suc^ ?v d^fi|pce? Mr. Souih was permitted c-^icall the* manager of the branch afc/Wetiierstpne! pnly.aft?r^a #tt^ig!© with teeourfc*;an;d.,after a^stron^^nd, ve^^ngry, expression of Jtscontraryp;pmipn.j/Re^ itbat tlie pSeiice^ charged^v-as r pbteining/inoneyimider' *a pretence falsp to the knpwledge df ; tbe,nnßon^fi Jan.d iai siew^id^^irij^^heiprdserato Cheque wafe aiValuable^ securify>N SurelyJae evidence' which the iudge^mitie^^nly^i^e^a^«^6f>ite worthlessnesS wai fair)y catenated -tip ;sh^,thatsffte' prxsoriet^ abtawas a. ijaistake^ Jind^qfc &. maaj^nnd ; mi^ake wasino^attflncp^uj^iOTe^jpji^t^ prerenteili the^ judpre -frc. mVusirig^thesf to^the joiy-" You cannot 1 come- to' any otfiej; conclUMon^ gentlemen, than that the prisoner is guilty "," / t I have not tbe least ohjection'to the publication of, my name whenever »it may be Tequlreu^ hut for the piesent I desire, to subscribe myself, end be 4 eonsi-

the evidence particularly that of Leers and nope, and readmg it with the greatest care my humble abUJty^ill pernut, I cau only come to the cJnclusion hat the easels one of .grave suspicion onlyTand holdinc xn view the ternble puuisLment foilowiue th lS offence, so temble in its consequence? to ite v»ctim aud society, it seems awful to contemplatShow any jury' holding the iasues of lifl; ai& deaST Mercy As a man and a Christian I CM.fesß I deplore this conviction. A feelini ««ae-l in V o SSl bly by m«ny, and though one of thf last to permit any undue influence to create a morbid sympathy fop crime of any description, the teS away of a fellow-creature's life in cold bi.oi is abhor £?d& "SiW 1011 ««T mind must shudder. Yet Ido say that suspicion, be it as strong as it may, and one's conviction oe it as well grounded £ IhS r l' llisuffi, cient to Procure a conviction in the most trivial case, let alone murder. Probably a vast majority of thess offences are long premeditated, and <a conviction would seldom follow, were it ' nofc M & cb?m pi direct' circumstantial evidence frequenUy arising and traced from verytrifliha-sources '* ! but here it does not require a lawyer to; pronounce it j as umafe &nd unsatisfactory, as it faili at least so it S ~^!a.fmmy.hamble^jad^OTt^■tt'■»^BcVtlw^pp^-; soner and the deceased beyondthebruinary course of probabilities. Lord Hale, a very eminent lawyer and ■judgem^his time, ruled^-" That it was far bettor | ? Jftt nmety-mae guilty persons should escape than one i mnoct-nt parson slould suffer." Wlint f?ner Or more ■ ennobling principles cati thei-e be laid down than t*-'s; if coßSistentiy acted upon by juries 1 How applicable the dcctrine^of this distinguished judge here! where a poor trembling wretch is on the very verge of eternity, to expiate Im otfence by an ignominious death— ;wfaeiher rightly or wrongly, is perhaps alone known to ta-od and his own conscience;. : . v ~ l ll™* been. induced to address you in the earnest hope that public oidiuon will be the medium of representing the case to the proper quarter—and of at least 8Q)- m£ iP • unlmPPy arm's life—a wish which lam satvshed.an such a case; alone requires to be exnresed to be realised; ■ :; ' >;

""' lam, Siry V' ';- '';//"■ ; v '■;"' .•;-" :i .' Yours respectfully,^ . Chakles John George, King-street, Dunedin, 18th Oct., 1862.