SUPREME COURT.

Poverty Bay Standard, Volume XI, Issue 1320, 23 June 1883, Page 2

SUPREME COURT.

(Before His Honor Sir James Prendergast, Chief Justice.) Thursday, Junb 21st. arson. Enoko Whakatiki was arraigned for arson, and the indictment was read to him. In reply to the (juestion how he would plead, he replied guilty. Mr Turton, who appeared for the prisoner, said he thought His Honor would see by the depositions that the case was not a serious one or of a serious nature. It appears that on the day in question they all had a drunken spree, and from the effects of which he was suffering when the act was committed. According to the evidence, and according to Maori custom, the woman was hi" wife. It also appears he was a joint proprietor of the house.

His Honor said it was a very improper thing to do ; persons inside the house might have been burned. Mr Turton said if His Honor did not object he would call Mr Loisel to speak as to the character of the prisoner, which he did. His Honor said if there was reason to believe that the inteniion was to destroy life, penal servitude for life would be the sentence passed. In cases where malicious feeling existed and disregard was shown whether the inmates would bo burned or not, also a very heavy sentence would follow, faking all the circumstances of this case itno consideration 1 do not think a heavy sentence should be passed. 1 will therefore sentence him to be imprisoned in the Napier gaol for twelve months with hard labor. MVRDEH. The case against Naera te Wheru alias Te Whetu of murder was now commenced. The charge was as follows i—Naera te Wheru alias Whare Ti, of Whakawhitira, aboriginal native, was charged ou the information of Sergt. M'Guire that ho did on the 13th day of February, 1883, wilfully and feioniously and with malice aforethought kill aud murder one Haimana Mabuika at Whakawhitira. lhe jury were now empanelled, but not before nine had been challenged. Mr Nolan, for the prosecution, said —The case which we now have to try is one of great importance, and one which you will have to devote very great attention to, for on your decision hangs the life of the prisoner, in this case, as in the other two previous ones, a woman is at the bottom of it. There were good grounds, according to the native mind, that this woman should be taken from him. A meeting was held among themselves, and it was agreed that she should not be allowed to live with him any longer. 1 he murdered man Haimana was a native chief, and a relation of the woman. The evidence will be shortly this—On February 22, this woman was handed by Haimana to another native. On the following morning Haimana and Hapuka were building a whare. They were working there, when the prisoner approached them with a gun Haimana spoke to him. The prisoner then put up his gun and fired, hitting Haimana, who lived about half an hour afterwards. After this he turned to fire at the other native. Now it will be proved to you that the prisoner did come down to fire at Haimana, and not at the other native who had taken his wife ; that he did fire at Haimana, and that the exact position will show you this. The gun found with the prisoner will be produced Ths evidsnes will point out that Hai-■i-iana vzsa shot with a bullet. You will fin:' all tt -cugh, gentlemen, that the gist of the thing arises from the ■aking of the woman away. I will a-k you tc xoie carefully any discrepancy in the evidence that may occur. 1 will now call Dr Leggaic, wao, in reply to Mr

Kenny depo«ed—The course of the bullet was upwards. It would be impossible for prisoner to fire off the hip, or he would have been so close as to burn the skin. Deceased must httvd stooped to avoid the shot. I shoiltd say they Were pretty close to one another. If a man fired from the hip close id another, a wound like the one named would be produced; I think. I barb no doubt as to the cause of the wound. I am perfectly certain as to the entrance and exit of the bullet. If n man was running across the lide of fire such a wound could be in« flicted, that is if he stooped. The deceased was father over the middle height. Mr Nolan said he would put in & plan of lhe scene of the murder, which had been drawn up by Mr Haig. Mr W. 8. Haig deposed that hu had known the prisoner ftbodt twd years | that he had employed him,an4 that he proved himself a quiet and inoffensive man. In answer to Mr Kenny’s crossexamination

Hapuka Niho sa'd—Hana was the prisoner's wife according to Maori custom. I know that they had been living together as such for some years. At the time she went to live with him she had four children. Three lam certain of. 1 have never ettl* braced Hana, the prisoner's wife. Te Naera has never said anything to me about my familiarity with his wife. Nor have I heard him complain to the runanga about it. 1 had connection with Hana in January. It was investigated at the meeting of the runanga, and I was asked to make payment. At the runanga when Te ."*aera made the first accusation it was found to be false. At that time I had no connection with the woman. All that were present on the morning were Harata, Winiata, JPene, Hana, Haimana, and myself. Harata bad gone for water. Winiata was asleep, and Pene was outside with me a short distance off on my right. At the tithe the shot was fired, Hamana did not come in a direct line between the prisoner and myself. Descending the hill the prisoner had his gun to his shoulder. At that time I had a stick in my hand. The only thitig that was done by us was Hamana going forward to take the gun from him. I did not send a message to Te Naera saying “ When are you and your fighting party coming to get payment for your woman.” I went to the settlement where Te Naera lives and took Hana to Kaitaha and slept with her. Hamana and 1 went together. We went back again fof the purpose of building the house and

nothing more. To his Honor: I did not hear thtS prisoner say anything to anyone before he came down the hill. Hana Pouri, cross examined by Mr Kenny, deposed—l was married ten years to the prisoner. I had five children. We went to a Maori minis* ter, but he would not marry Us as we bad not sufficient money to pay the feO: After this my father did not agree to our living together. Jt was only Haimana that came to fetch me Hapuka did not come. No message was sent to Te Naera, asking him when he was coming with his war party. When Hamana went towards the prisoner as he came down the slope, he went for the pur* pose of taking the gun to prevent him from shooting at Hapuka. The three were not in a straight line. I had no connection with Hapuka before January. Te Naera did not catch us in open daylight in each other's arms outside the whare. We were living apart then. We parted in December. Three native witnesses were now called, but their evidence did not go to prove anything of importance, Hare Mumu was called and deposed as to having caught the prisoner, and found in his possession the fowling piece, caps and bullets, aud having lodged him in safe custody. Sergeant M'Guire gave the same evidence as published previously. Mr. Nolan now delivered the following address for the prosecution: — To Your Honor and the gentlemen of the jury. From the opening of this case this morning it has been seen that it requires the utmost attention. His Honor will point out the law on the subject, which I think you will understand. The law is this, in order to substantiate this charge of murder, it must be proved that it was committed with malice aforethought. Circumstances may induce you to find him “Not Guilty” (His Honor disagreed with this) though there can be no doubt that Hamana was killed by the prisoner. In going through the evidence we find bj’ Whetu Rangi’s statement that the prisoner took the trouble to arm himself with powder, shot, &c., and i- not this sufficient to show what his intention was. Tomati Motaho’s "tatement bears a doubleconstruction, for even the interpreters could not agree as to the interpretation of what the prisoner is stated to have said, viz : —“ '.Vhen my woman lives with another man, then will I die or suffer.” Now it remains for you to say the meaning. You have heard the arguments of my learned friend in his cross-examination, where he lias endeavored to show that the prisoner had received a message for him to come with a war party and take his woman; also that when he (the prisoner) did go to them with the gun, 'hat they had jeered and taunted him. This of course is a fabulous tale, as all the evidence proves. Hapuka says he was on the right of the prisoner, and Hamana on the left, just before the Latter was shot. The third witness

certainly described it a little differently, but it tall led wit h the statement of Hana, the prisonor’- wife. It has also i een proven to you that Hamana was the intended victim, not Hapuka. There is not the slightest doubt but what the prisoner had great provocation, still I say and urge that he had no right to take the law into his own hands. However, the result lies with you, it is a serious matter, and one which will require your full consideration I hope you will give it such, and though it i« a very painful task to perform, yet you must remember you are discharging your duty. The Court was now adjourned till seven o'clock. On resuming Mr. Kenny delivered the following address:—lo Your Honor and the gentlemen of the jury. It has never fallen, to my lot in all my experi- > Bnce, to defend the life of a fellow , eresturb. I fee! the responsibility of tny situation greatly. I feel that the slightest error on my part will consign him to his doom. I say my responsibility is great, but yours”, gentlemen, must be doubly so, for you are aware that on your decision and your’s only hangs the lifo of that man. It will be for you to decide whether he committ--d murder, that is wilfully and with malice aforethought, or otherwise, manslaughter. I did not know whether to have a jury of Maoris or Europeans. It is open for a Ma >ri to have a jury of his own people, but after considering I thought it might be unwise, as things then would be apt to become more complicated, and cause more trouble. I believe this has only been tried once in Wanganui, and it answered very well. 1 have seen enough of the people here, to know that their verdict would be as good and faithful as a Maori jury would, and I know conscientiously that you will deal with the prisoner fairly. There are two charges, the Ist is murder, and if not murder, manslaughter. As 1 have before pointed out to vou, there is a great distinction I etw en murder and manslaughter. I'he former is where the crime is com nitted with the full intention of doing harm and injury, by a person of sound reason. The latter is the reverse, by unlawfully killing when the mind is in an unsound state. I ask you to bring in a verdict of manslaughter, for it would be idle for me to argue that the ' prisoner did not kill Hamana, and also that he was not even guilty of firing the gun at him, but 1 do argue that he had great provocation, enough to distract his mind, and during this i distraction he committed this act. It j will be for you to find out what sort I of provocation he received? What | state of mind be was in at the time of j the deed ? If there was time sufficient ’ time for him to recover ? And if he ; has a strong mind 9 All this you will I have to go into carefully before giving j your final decision. Mr. Kenny asked if he might, as the prisoner's mouth was closed, make a statement taken from him (the prisoner). His Honor replied that he might do ; so, though it would not weigh as i evidence. I Mr. Kenny now delivered the state- ; ment, as he had been informed by the ’ prisoner, and which was totally differ- ! ent from the evidence adduced. On resuming he said as this is what I am instructed by the prisoner, a d I ask does it tally with any of the other evidence. All the witnesses agree that the gun was pointed at Hamana, diseased, and that he (prisoner) shot him. I hey disagree as to whether the gun was fired from the hip or shoulder, they disagree as to the words spoken, and they disagree as to the distance Nowisit likely that a man would ad vance all the way with his gun at the “ present ” as several say he did instead of at the “ ready ” position which is more natural. It is nonsense, and the witnesses cannot be relied on. This case is one of the many where the brains require to be brought into play, and made use of, and don’t be lead to believe what these certain witnesses say that they saw this and that. The prisoner says he did not intend to shoot Hamana. It has already been proved that he is a quiet and steady character. 1 have nothing more to say. I hope I have made myself intelligible to you all, and trust that your verdict will be that of manslaughter, and not that for which he is here arraigned. I have pointed out to you my reasons why you should do this, and trust you will act on them.

His Honor’s address was as follows; The question you have to consider is whether the prisoner was so suffering from nervous excitement—whether he was in such a state of mind as to be excused from the charge of murder. If a man does an act while in such a state of mind as to make him unaccoustable for his actions, he can only be guilty of manslaughter. Then, again, you must take into consideration the fact that he is a Maori. A native is amenable to our laws the same as a white man ; but still there are eouditions where the Maori should be dealt with in a more lenient manner, owing to his peculiar nature, and judges have the prerogative of making allowances in certain cases. There were certain instances of justifiable homicide. If a man caught his wife in the act of adultery, or had reasonable grounds to suppose that such had just been committed, and while in that peculiar state of mind caused by such knowledge, a sword or gun was close to band, he was then justified in killing. A Maori was en titled to more leniency thau a white man, as in a case of this kind he

i would be more likely to follow his I natural impulses instead of the law. i The prisoner's counsel had told the i jury that the prisoner and hts wife had been on the most affectionate terms up to the time ids wife had been taken from him and given to another man. Under these circum stances, when the man went and loaded his gun, did they think that he was actuated by malice, or was he acting under a sudden impulse that could not be controlled. If the latter, he was not guilty of murder. The question of chiefs being allowed to take a man’s wife away, and giving her to another, required consideration. Sometimes a person would revenge himself, careless of results. He (the judge) would now read the evidence of Hapuka, so that the jury could see ’ that the prisoner only intended to shoot Hapuka, and not Hamona. The medical testimony seemed to throw some doubt on the testimony of the witnesses as to the relative parties at the time the shot was fired. He understood the counsel that the pri soner was firing at Hapuka and not at Hamona. They had heard the counsel state that a message, or chai lenge, had been sent to prisoner, defying him to come and take his wife, and challenging him to bring his fighting men. He bad nothing further to say, only tha: they were competent to judge from what they had heard as to whether the prisoner had, according to Maori custom, while really suffering from such a state of mind, and under provocation, committed either murder or man slaughter. The jury then retired. After half an hour’s absence they returned, and the clerk called over the names, and then addressed them as follows: “Gentlemen of the jury are you agreed as to your verdict ? ” “We are.” “ How say you ; guilty, or not guilty ?” “ Guilty of man slaughter only.” The clerk, addressing the prisoner: “ Prisoner at the bar, you have been found guilty of felony. Have you anything to say to the Court why it should not pass sentence on you ?’ f Mr Kenny here rose, and asked the Court to postpone sentence until the morning, as he had a written state ment of the prisoner’s, which he wished His Honor to read, aud which would enable the judge to form a better opinion of the real facts of the case. He ventured to ask this on account of the prisoner not being able to express himself to His Honor. His Honor acceded to the learned counsel’s request. Fain ay, 22sd Jvse. On his Honor taking bis seat this morning he informed Mr Kenny that he had perused tho prisoner’s statements and could find little fresh tn it Mr Kenny thereupon thanked his Honor, at tie same time begging him to consider, in passing sentence, what imprisonment meant to suchapoor half wild creature as the unfortunate prisoner. In passing sentence, his Honor said —The sentence 1 shall pass upon you must be the severest the law inflicts, short of death. Any consideration your case is entitled to I must leave to those who hold that prerogative. If the verdict had been strictly in accordance with the law yon would have undoubtedly been convicted of murder. Ido not find the slightest fault with the verdict. I hold out the hope that the Governor may, no doubt, at some future distant date, consider the circumstances of your case, and exercise the prerogative he is invested with No doubt but what you received great provocation. The sentence of the court is that you be kept in penal servitude for life. i'he prisoner is of slim build, short stature, and possesses a rather pleasant and intelligent cast of countenance. This morning his face clearly showed the strong hope within him which last night's verdict had given birth to, but the light gradually faded from his eyes, as the terrible sentence of life imprisonment was interpreted to him by Mr Ferris, who throughout performed his uncongenial duty in a most able and efficient manner.

CIVIL CASES. M'Lindon v. Common and Others— Mr Finn appeared on behalf of the plaintiff, and Mr Brassey and Mr Nolan for the defendants. In this case the action was brought against the defendants for the purpose of producing certain accounts in the contract on the Gis-borne-Ormond road. Also, that the partnership under which the contract had been proceeding, should be dissolved. The partnership was between Messrs. M‘Li:idon, Oxenham and Hurrey. From this he, tho plaintiff, wished to part. His Honor suggested that the best course would be that a decree be made ordering all accounts, and a statement, to be produced by the defendants. As Mr Brassey agreed to this, His Honor decreed that the accounts should be taken by consent before the Registrar, without prejudice of the costs. Mr Brassey said ha would withdraw the counter claim. This being satisfactorily disposed of, the case of M'Lindon v. W. Common was called on. The same counsel as in the previous case appeared. This was an action for the return of certain property, which the plaintiff had made over to the defendant for a sum of money advanced on agreement that the property was to be returned on the re-payment of the money advanced by the defendant, but which property had never been returned, when the money was refunded. THE VERDICT. Practically this was in favor of the defendant, the sum of £5O being awarded to the plaintiff on one of the four issues submitted by His Honor the Chief Justice, each party having to pay their own costs; but

another case, which is a question of 'accounts, has been submitted to the Registrar, which will be terminated within seven dayn.