DISTRICT COURT.

Patea Mail, 14 April 1881, Page 3

DISTRICT COURT.

Tuesday, before Judge Hardcaslle

FURIOUS COACH DRIVING. JURY DISCHARGED —NEW TRIAL.

In the prosecution of John Waters on Monday', for wanton and furious driving of a coach in October, causing serious bodily harm to Mr F. H. Brett and others, the jury had retired to consider their verdict, Being unable to agree, the Judge visited them at 10 o’clock and ordered them to be locked up for the night, but directing refreshment to bo sent. No refreshment was sent in accordance with this order, but a relative of one juror did send some food and drink to the room, though these were supposed to have been sent by the Judge, and were divided as far as they' would go—which wasn’t far among tw'elvc hungry’ men. The Judge visited them this (Tuesday) morning at eight o’clock, and finding they had not agreed he ordered them to be discharged, but to appear in Court at 10,3 ft. The Court opened at 10 a.m,, and the question of empanelling a new jury' was discussed. Several jurors who had been locked up all night complained to the Judge that they had not been supplied with food, nor could they get a drink of water. This matter will bo found reported in another column. Mr Hutchison, for the prisoner, contended that the new jury should be chosen, not from the remaining jurors in the list, but from the full list, including the twelve jurors who had been locked up. The Judge desired to release those twelve from serving on the next jury, and said he had released them till 10.30 with that object. Mr Hutchison quoted from the Juries Act of last y'ear to show the prisoner was entitled of right to have the jury' drawn from the full list and not from a part of the list. The Judge said it was a practice in the Supreme Court, and he had no hesitation in following it, of allowing leave of absence to jurors wbo had served, in order that they might escape the next jury. Mr Hutchison : But tbe Act provides that the names must all bo in tbe box. Judge : The names may' be put in the box, but those who bad leave of absence will be excused if drawn, unless there are not sufficient without them to form a n e ' v i iir yMr Hutchison asked for leave to move the higher Court on the point, if necessary'. Tbe Judge could not assent, but said be would make a note of the objection. He said tbe Crown prosecutor might ask that those jurors who had served should stand aside. Mr Barleyman did so in one instance. Mr Hutchison contended that this was contrary to the plain intention of the Act. The Judge said that if sufficient jurors could not be got, then the first jurors might be brought in to serve. This had been the practice of Judge Richmond, and he would follow it. Mr Barleyman did not ask that the next juror who had served should stand aside. Judge : I do not say', Mr Barleyman, that you have no right to ask for these former jurors to stand aside, if you choose to exercise your right. Mr Barleyman made no response, and a number of former jurors were sworn again, although they had had no rest the previous night. A new jury to try the charge of wanton and.furious driving was drawn, the names of all jurors being first put in the box. The prisoners’s counsel bad a right to challenge 12 names, and did object to 10, namely : —A. Chalmers, junr., W. Watkins, W. Holdwayq 11. Hamilton, W. T. Watts, P. Wilson, A. Palmer, W. Wilson, F. ©sterling, and J. B. limes. Five of these had been on the first jury', and were objected to for a reason not explained. Six others who had been on the first jury' were not objected to. The reason for this preference had to be inferred from what was known of the way in which the first jury had been divided in opinion. When this selection had been gone through, the following 12 were sworn as the second jury : —John Burrows, T. Harris, C. Fish, P. Mahony, P. Kiusella, S. Duffy, H. Taylor, W. Marchant, M. Kelly, J. Rolfe, G. Snooke, and T. Haywood, senr., who was again chosen foreman. Evidence for the prosecution was again called, and was substantially' the same as before. C. E. Gibson brought out a now point in his evidence. He said the coach was in the act of falling over when it struck the low rail of the bridge, and the coach body

grated along the rail till it came against the first main post with a shock which shattered the coach and liberated the front wheels, with which the horses bolted. He found himself crushed against the post, but was lower than Mr Brett; and witness had to liberate himself by creeping under the body' of the coach, which seemed shattered. He noticed particularly' that the coach lay on its side with the righthand wheel in the air, as if the coach had been nearly over when it struck the main cap of the bridge. He had not mentioned this before because he answered only the questions put to him, and this question was not put. Some draymen afterwards came with horses and pulled the coach away. Mr Brett appeared hurt very much.

Messrs Brett, Chalmers, Foy, Otto Haase, and D. Spence gave similar evidence to that in the first trial. Mr Haase said he could pull up a coach and four at a trot on such a road in four yards. For the defence, Mr Hutchison again told the jiny the charge was one of wanton and furious driving, which meant the driver must have an intention or design, that (he pace must be“such as he knows is likely to produce bodily' barm. Mr Young, proprietor of the coach, and Mr Ohevanne, formerly' a coach driver, again gave evidence for the defence. The Judge, in summing up, said the jury should ask themselves : Did the prisoner, having the horses in his control, make them or allow them to go at a fast pace in approaching the bridge, and did be do so recklessly without regard to consequences? The coach is described as being on its side when the accident was over, and witnesses said they had felt as it it were in the act of upsetting before it touched the bridge—what is that but a capsize ? It was not the collision that upset the coach. Mr Hutchison ; I submit that should be left for the jury to infer, and should not bo put to them as a fact.

Judge : But the evidence is clear that the coach was upset as far as the railing of the bridge would allow it to go over. I shall put that to the jury as a matter of fact. It does not matter whether the olf wheels were off the ground or not, if the coach itself capsized as the real consequence of wanton and furious driving. It does not matter how the king-bolt came out, unless it did so without being the consequence of wanton or furious driving. The defence wish you to believe it was purely' and simply an accident, resulting from the king-bolt breaking Mr Hutchison : Wo say' breaking or disconnecting in some way'. Judge : What evidence have they' brought forward to support that ? The Crown brings forward a theory, and asks y'ou to say whether the evidence is sufficient to support it. But what clearly does the defence bring forward ? Doss it say the coach disconnected because of this drop from the newly-laid gravel on to the bridge planking? The gravel is not shown to have been so at the time of the accident. A witness says the road was smooth, whereas the defence witness says it was covered with large stones broken up.

Mr Hutchison objected to have Ins theory' of defence put to the jmy in the form of a question. Judge: I ask them to investigate that theory'. What case is set forward Mr Hutchison : I don’t point to a specific cause, but point to the fact. Ido not say how it happened : it is not necessary that I should. Judge : The fact remains that the forecarriage went away r . The defence ask you to believe merely' that because the fore-carriage went away', therefore the king-bolt must necessarily have disconnected, and that it was impossible for the king-bolt to have disconnected in the way the prosecution set forth. As to that you will have to judge, bearing in mind the question as to whether the accident was not virtually consummated when the coach heeled over so far as to be incapable of righting itself. Is there evidence at all that at that time the king-bolt was disconnected or that the fore-carriage was going away ?

Mr Hutchison : My theory is that it must have been so, or the body' of the coach would have followed the horses.

Judge : These proceedings aro taken in order that the public may be saved. The question of civil damages is no part of this inquiry'. It the driver has misconducted himself, be is the person to suffer in these proceedings ; but civil proceedings would be against another person. There are certain discrepancies, but if on the evidence you are satisfied that the theory' of the Crown is maintained, you must find a

verdici of guilty. If on the whole of the evidence yon have any reasonable doubt as to the maintenance of that theory, then yon must give the prisoner the benefit of that doubt. It must be a reasonable doubt. You need not look to insignificant details, but look at the evidence broadly. Sec if the salient and important points are well established. The jury retired to consider their verdict at 22 minutes past 2 o’clock and returned at 12 to 3. Clerk: Have you agreed upon your verdict, gentlemen ? Foreman : We have. Clerk : Do you find the prisoner guilty or not guilty ? Foreman: Not guilty. Judge : The prisoner is discharged.

STEALING A SADDLE. James Taylor, a middle-aged man, was indicted on a charge of stealing a saddle, the property of Cyril Dasent, from the woolshed of Mr Axup at Waverley, about the 16th April last year. Mr Barlcyman prosecuted, and Mr Hamerton defended. The following jury were sworn: VV. Treweek, T. Haywood, M. Kelly, J. B. Innes, A. Palmer, W. Watkins, W. Holdway, R. Hamilton, P. Wilson, J. Burrows, H. F. Mason, and S. TapHn, foreman. This case was tried recently in the R.M. Court. The saddle had been placed in the woolshed, which was not locked, on the evening of April 16th, and was missed next day. The prisoner offered the saddle for sale to several men at Oeo last July, saying it was worth £6 or £7, and Luke Fitzsimmons purchased it for £3 ss. The police heard of the transaction, and Sergeant Donovan asked the prisoner at Kakaramea if he ever sold a saddle in the direction of the Plains. Prisoner said he never sold a saddle. Asked on two other occasions, he gave similar denials. For the defence Mr Hamerton said he had been unable to get two witnesses whom he bad sub-psenaed. The prisoner had bought the saddle from a man who cleared for Victoria. The Judge, in summing up, pointed out different degrees of presumption in circumstantial evidence. The presumption against the prisoner was that within three months of the saddle being missed he was found dealing with it ; and a saddle is an article which people don’t readily get without being able to give some account. If the jury believed, however, that the prisoner bought the saddle from a stranger on the road, much in the same way as he had sold it at Oeo, then the jury would not convict. The jury, after conferring 40 minutes, returned a verdict of not guilty. BANKRUPTCY. In the case of Frederick George Taylor, storekeeper and farmer at Stratford, a bankrupt, Mr Barlcyman applied for an order of discharge. No opposition was offered. The bankrupt was examined, but the Judge could not grant the order until all legal forms had been complied with. The case will come up again. THE COURT was adjourned to Wednesday next as a probable date at which the Judge may return to complete the civil business. The actual date of sitting will, however, be advertised.