MALICE OR ACCIDENT?

Patea Mail, 20 November 1880, Page 2

MALICE OR ACCIDENT?

An interesting mystery surrounds the case of alleged malicious injury to a horse. The fact of Mr McCarthy’s filly being hamstrung in the way it was is suspicious and deplorable. But the theory of malicious injury had so little evidence to sustain it, that the Magisterial decision appeared to be a foregone conclusion from the first. The Magistrates had to be satisfied that the evidence placed before them would be reasonably sufficient to convince a jury. They could not commit for trial on a weak presumption. The evidence being wholly circumstantial, it must be so complete as to exclude reasonable doubts; else why trouble a jury ? If so complete, this kind of evidence might be more convincing than direct evidence of sight; a proposition established by many notable examples in criminal trials. One or two eye-witnesses might be mistaken as to identity, or might swear falsely ; whereas circumstances cannot lie. Suspicion of malicious injury attached to three occupants of an adjacent hut. Among the three, suspicion attached more to tbe prisoner than to his com-i-ades, for these reasons. The injury was such as a spade would be likely to inflict.

The blood tricklings were all within a few chains length from the hut, and it was just doubtful whether they were not tending away from the hut, as if the horse had been cut within a few yards and had limped from rather than towards the hat. The prisoner ' was up earlier than his comrades that morning, and he was the only one known to have used the spade that morning. He was the acknowledged owner of the spade. The spade had two hairs sticking in the jagged corner, and the hairs were sworn to resemble the color of the filly. Paper was found which appeared to have wiped a bloody spade, or such an instrument; but the paper confirmed nothing as to the prisoner more than others. A waistcoat was found in the hut, with blood on the back as if the wearer had wiped his bloody fingers in the way laborers do. That pointed somewhat to the prisoner, as the waistcoat was his ; but he was not wearing it when arrested, and it was not shown that ho had worn it that morning. So far, the evidence was in loose piecosthere was no chain of circumstances firmly linked. And no evidence was offered as to malice.

To convict a prisoner on evidence of this kind, it must be shown that he did the act because no one else could have done it. Say the parties in the hut wore the only ones who could have hamstrung the filly. You must then show which one, or you show nothing conclusive. Three men cannot be punished for the offence of one,even though it be shown that one of the three must have done the act. So long as they deny it, and so long as you have no evidence of conspiracy, you can only suspect but cannot prove individual guiltThat is to say, you prove nothing. To ask a jury to convict No 1 for an act which your evidence shows might have been done by No 2 or 53, would be trifling with common sense. Proof by the process of exhaustion is familiar to barristers versed in criminal law. It is as fascinating in its interest as the plot of a sensational novel. It is a demonstration by probabilities. This horse case is only a weak example, for the evidence showed that the filly might have been injured in more than one way besides that of cutting with a particular spade by a particular person. All probabilities must be excluded before the conclusion can be fastened on one man. Of course it is not necessary that Magistrates shall be convinced that no one hut the prisoner could have done the act; but they should bo satisfied that there is a reasonable probability of a jury convicting on the evidence. The written decision of the two justices in this case was that there was not sufficient evidence to go before a jury.

If the defence had been gone into, an attempt would doubtless have been made to show that the gash on the filly’s leg was such as a horse newly shod might make with a kick. The presumption is greater by the injured animal being a filly. A slice well worn could not have gashed the hock as this was done, in all probability. A breadth of skin was grazed off" the fleshy part above the hock, which raises a doubt whether a single kick with any kind of shoo could have done the injury. Two kicks within a hand-breadth arc not probable, but the possibility may be admitted. If one or two kicks could do the injury, and if one of the-horses running with the filly were recently shod, the theory of malice would have to be very strongly supported as against the possibility of injury by kicking. The case was weak both as to the way the injury may have been clone, and as to the individual who did it. —