VERDICT OF GUILTY. Both Prisoners Sentenced to Death. THE JUDGE'S SUMMING-UP. Auckland, January 22.

Te Aroha News, Volume IV, Issue 189, 29 January 1887, Page 5

VERDICT OF GUILTY. Both Prisoners Sentenced to Death. THE JUDGE'S SUMMING-UP. Auckland, January 22.

His Honor Judge Ward delivered the following charge to the jury in the above OftßG :— • "Gentlemen of the jury,—Both the evidence and the addresses from the counsel engaged on either side having now been closed, it remains for you to declare by your vevdict whether the prisoners are guilty of the murder with which they stand charged. I need scarcely say that iv dis charging the highly important trust which devolves upon you, you will bo guided by the strict rulea of evidence in returning a verdict npon the facts of the case without regard to any coneequencea whatever, and I need scarcely repeat to you the reminder of the learned counsel for the Crown, and also of the counsel for the defence, that as far as possible you must dismiss trom your minds everything you had heard respecting this caße before coming into Court. Now, in this case, it is not necessary for me to commence, as is frequently done, by defining the crime of murder and the shades of difference between it and manslaughter, for I must tay this — that no fouler and more cowardly murder than this ever stained the annals of the colony, and your duty, therefore, is simpiy to decide whether the prisoners in the dock are guilty of it or not. Some stress has been laid by the counsel for the prisoners on the fact that the Crown, in the first place, has done nothing to show motive on the part of the prisoners, and that, though there were certain motives assigned the effort to prove them had failed. There is no doubt, as far as that goes, that the proof of a premeditated plan depended entirely upon the exceedingly unreliable evidence ot the girl Grace Graham, and after all we have neard respecting her character, and the contradictious that have been ' given to some of her statements here, I re gard her evideuce as being such that no reliance whatever can be placed upon it. It is Clear that she has not told the whole truth, but il would be strauger still if she did not tell any truth at all. That she has tried to exculpate Fenn,there is no doubt; but at any rate I should consider her evidence such as you cannot rely upon However, that is a «matter for you to consider. As to the alleged failure to adduce evidence of motive aud plan, I have merely to say that it ia wholly unnecessary for the Crown that any evidence, either of plan or plot, should be brought forward ; for if a man kills another without provocation, that is murder, aud if it is asserted that sue killing by him wa3 not murder it is for him to show, it he is able, that his contention is correct;, as, for inetanco, that he merely acted in self - defence. I neei scarcely tell you that in this gating circumstances. Bach prisoner has tried his very best to throw the guilt on the other, and I propose to briefly go through the story stated for one, aud then the other, by their respective counsel. I must first, however, tell you that in order to convict either prisoner of murder it i 3 not necessary to prove that he gave the fatal blow. If you find as a necessary inference from the evidence placed before you that the fatal shot waa fired by one or the other, then it will be your duty after knowing that they were acting together to find both prisoners guilty. Now let us take and examine the two statements Perm, through hih counsel , speak ing for him, said that he was on intimate terms with Caffrey, to whom, as the older and more experienced seaman, he looked up and by whom be was influenced. Tha the himself knew nothing of the great ocean and the exciting adventures possible upon it ; and that Caffrey induced him by firing his imagination to go with him; that Caffrey persuaded him that Mrs Seymour wa3 perfectly ready to elope with him (Caffrey) if a convenient opportunity were afforded her of doing co; and that her recent confinement presented a splendid chance of carrying out the elopement, as she wes staying at her father's, where there were only two male persons to interfere with the execution of the design —an old man and a young boy. Perm accordingly agrees to go ashore to help Caffrey. .Now, if they went ashore armed with revolvers, a criminal intention -is at once imported into the case; for what need ie there of pistols if, as Perm says, they only wanted Mrs Seymour, •and she was willing to go with them ? Besides, his explanation does not agree with the fact that aft9r the murder his firet question, upon coming up with Mrs Taylor on the beach is, " Where are the girls ?" and then he say?, " You have hid them under the bed," thus clearly showing that M*s Seymour was not the sole one soucht for, Perm, on getting ashore, and while proceeding along the beach towards the bouse, sees Jane Taylor, and on Teaching the house he aeks for some "butter, which he says is intended for a yacht called the Tairua, while also stating that he himself belongs to the Teviot Both j these statements are deliberate untruths, I and Perm's counsel attempts to explain j them by saying they were necessary falseiioods to the execution of the design. But >i£ it could be necessary to tell lies for the furtherance of such an undertaking, how much more necessary would it; be considered by the prisoner now, when his >life is in peril? Perm's counsel further argues that a3 he did r»ot shoot Taylor when he met •him outside the house, he had no criminal ■intent; but Perm was scarcely likely to do this, or anything of the sort, before Caffrey arrived. As for Perm's pos--seseion of a revolver, his counsel urges that •be had his hands ia his pockets when he reached the house, consequently it must not of assumed that he had a revolver. But 'Caffrey brings two revolvers with him —one in each hand — and he is afterwards seen with only one, while one is subsequently found on the ifloor of the kitchen, and Mrs Taylor distinctly saw Perm with a revolvor in his "hand when he was standing in bedroom No. 1 with his left arm round her husband's neck. Afterwards the third revolver finds its way to the cabin of the cutter. The inference is therefore clear that Perm had it in his pocket when he entered the house in the first instance. The next thing in Perm's statement is that Caffrey dashed into the house and began firing. Assumingfora moment that thecoptentionof the learned counsel for the prisoners can possibly be proved, and that they were there for a lawful, though immoral act, then ended the moment the firing began the legality of the act. The question whether it is punishable by law to elope with a married woman is of no concern, for from the moment the firing begins there can be np, possible doubt, as to the illegality of the prisoners' proceedings. According to Perm, after three shots had been fired by Caffrey, Taylor rushed into bedroom No. 1, and it is contended that if he had been wounded previously he could nob have done that.

Caffrey followed him, dashing open the door which Taylor had slammed behind him, and then Perm says he arose and followed too ; that as he entered the room Caffrey fired again, and Caffrey asked him to take the old man off him ; that seeing Taylor stagger and about to fall, he (fenn) stepped forward and caught him in his arms, and that ife was at this point Mrs Taylor entered the room and saw him. But, gentlemen, this explanation is disposed of by the fact that Mrs Taylor hoard the fourth shot fired after seeing her husband with Penri's arm around his neck. There can be no question that Taylor at the time he was standing at bedroom No. 2 with Perm's ! arm around his neck was alive. Had he been shot before that time I he could not have been standing up, for the \ doctor's testimony shows that the effect of the fatal bullet would have been to produce instantaneous unconsciousness Moreover, had he been shot before, Porm must have been covered with blood, and yet Mrs Taylor does not say that she saw any blood on him. Had it been otherwise, ahe could scarcely fail to have seen it. Now, as I have said, this narrative is disposed of by the fact that Mr* Tayl-jr heard the fourth sh-)t fiied after she had seen ber hue band and Perm in the [. osit on I have men- , tioaed. I now take Caffrey s story. It ia this : That he, had ben engaged to Mrs Seyaiour; that the engagement had been broken off through the influence of her parents, wno intimidated her into an unwilling marriage, that he had reason to believe that she would leave her husband and go away with him ; and that under this impression he went ashore, believing that the opportunity was favourable, and that Perm could be used to keep the parents out of the way. He then says that be rushed into the house and fired blank cartridge, with the object of intimidating Mr Taylor, whom ho found there, and that Taylor rushel into No. i bedroom, shutting the door behind him ; that Caffrey, expecting to find the eirls there, rushed in after him, struck down Taylor with a blow on the nose, dashed into No. 2 bedroom, found Mrs Seymour gone, jumped out of the window to look ior her, and went hunting about in the swamp close to the houee. Cuffrey further states that ho ieft Perm with a revolver ia his hand and holding Taylor to prevent him getting clear. Now, gentlemen, if, under these circumstances, Perm was left in that position and adoadly struggle ensued, ending in Taylor being shot, then the ca°e is one of murder, in which both CaftVey and Perm are equally concerned. Caffrey would be just a« guilty as Perm. Now, wo come to test Caffrey 's statement. In order to show premeditation of some design, we have the fact that a fortnight before the murder he ask for and buys a chart of the South American coast, mentioning particularly Valparaiso ac a port where he would be able to find hia way in the dark: and then Detective Tuohy tells you that he was informed by the prisoner that for three weeks after he left New Zealand he was cruWng about in the effort to reach South America, and that be was driven by contrary winds on to the coast of Australia. Beeides, on the 17th of June, the very day on which he leaves Auckland, he invite 3 the girl Agnes Austin to accompany him on his trip to the Barrier that night, and after she refuses his invitation he tells her that he is going to America, and that she would hear and read about him. He also asked the girl Jane McManus to go with him, and yet in epite of those facts hi? counsel wants you to believe that he was actuated by the deepest affection for Mrs Seymour. The improbability of this story is apparent. A fortnight had elapsed since Mrs Seymour's confinement, and no communication is proved between her and Caffrey since her marriage, is it likely that she would abandon her child and her husband for the sake of him ; or, on the other hand, be ready to take the infant to sea with her ? It is absurd to imagine anything of the kind. The story of Grace Graham is infinitely more probable. As I have already told you, three shots were fired before Mrs Taylor saw Perm in bedroom No. 2 with his arm round her husband's neck. Although the family were taken by surprise, and were filled with the greatest alarm, their statements as to what took place agree very closely, and it is only natural that some slight discrepancies should be found, particularly as to the element of time ; in fact, ib would be strange indeed if there were no euch discrepancies, The wonder in this case is that the account given by all the witnesses of tho transaction is so clear and distinct. Caffrey says that before the fourth iihot wos fired he jumped out of the window in order to continue his search for Mrs Seymour. Now, Mrs Seymour and her sister swear that at the time they heard the fourth shot fired they were climbing the fence, which was only twelve or fourteen yarde away from the window, so that if Caffrey's statements were true it would have been simply impossible for them to have concealed themsolves. He must have seen them, Lhe next cvi dence as to his movements is this. While hiding up the hill some time after Mrs Seymour saw him cross a little stream running close to the house, and go towards the stockyard, near which Perm and her mother were standing. She could not see the door of the house from where she was hiding, but she saw him coming from the direction of the house. Ifext, Lincoln Taylor, who had run off to a point on the beach, also sayß that he saw Caffrey comiDg from the direction of the house, though he could not swear that he saw him leave it, and there is absolutely no vestige of evidence before you to show that Caffrey was ever in that swamp. ' The evidence negatives such a supposition. Mrs Taylor says that when he came to her on the beach she asked, "Oh, Johnny, what have you done?" and that he replied,," Ob, I have done it, I have done it." She then says, " Oh, Johnny, you have murdered an innocent old man," and he answers, "1 have not done yet ; I will finish the lot." You have there got an absolute statement by Caffrey that he had done the murder. Any other construction cannot be put upon his words. As far as Perm is concerned, you have it proved that ho was seen standing in the "bedroom where the murdered man was subsequently found, with his arm round Taylors neck and a pistol in his hand, and that upon Mrs Taylors entranoe ho pointed the pistol threateningly at her. You can hardly havo clearer evidence of intention, and if you believe^ that evidence, it is clearly your duty to find a verdict. If you believe Caffrey 's story that he left- Perm to " guard Taylor with a deadly weapon in his hand, and that during that guardianship the fatal shot was fired, then *»oth prisoners are equally guilty. 1f, .0n the other hand, you disbelieve it, and a number o' improbable circumstances have been pointed out to you—if you are rather in-, fluenced to attach evidence to Perm's state-, ment, you must bear in mind the fact that it is confronted and contradicted by Mrs' Taylor s evidence, The law ia that if two men armed with revolvers go into another man's house, and pursue him through it, firing at and assaulting him, and he in fatally shot in consequence, it' makes not the slightest difference which of t)he two prisoners Bred the fatal shot. If you believe that either shot him, you

have no choice but to find both guilty. I Even, if their intention in going to the house originally could possibly be shown to be lawful, yet the first shot fired destroyed the legality of their action, and it no longer matters what their original intent may have been. Now, gentlemen, you have been told, and properly so, that you must give the prisoners the benefit of any doubt that you may have respecting their guilt, and I agree with that; but the doubt in question must be a reasonable doubt — suoh a doubt as you would act upon in the ordinary affairs of life, and that you could reconcile the solemnity of the position in which you are placed, and tha confidence reposed in you. Now, both of tho learned counsel for the prisonor, have told you, and the counsel for the Crown also tells you, that this ia a most solemn occasion, as tha lives of two men hang upon your verdict. But, gentlemen, I tell you further, that both here and hereafter, both in tho day of death and at the day of judgment, it will be your chief consolation in respects of this crime and the best justification of your action, that you faithfully and earnestly discharged your duty, Ifc is your fellow - counfrymon who have placed" you there, and I am fully a^ured that you will not belie the trust which they have placed in you It is now for you to say, gentlemen, whethe- or not the prisoners are guilty, or on the other hand, if you have any doubt as to their guilt, let them have the full benefit of it. But above all, you will discharge ytuiv duty, regardless of consequences, by giving a verdict in accordance wirh the evidonco. Gentlemen, you will now retire to decide upon that verdict. Mr O'Meagher pointed out that His Honor had forgotten to mention that, Mrs Taylor, upon entering No. 2 bedroom and soeintr Perm with his arm round her husband's nock, had not seen Caffrey at all. His Honor, in reply, said that although Mrs Taylor did not ?eo Caffcey then, she wat> not able to see the whole of the room in which Perm and her husband stood. The jury having expressed a wish lo retire to consider the verdict, filed off to the jury room, and His Honor left tho Beti^h. While the jury were absent intense but subdued excitement reigned in the Courtroom and its approaches, and the probabilities of what the finding of the jury would probably be were canvassed eagerly in whispers. The prisoners were permitted | to eeafc themselves in the dock, and during j the first few terrible minutes of the absence of the jury they appeared much less concerned than many of the spectators. [ When, however, it became apparent that the ;ury would not immediately come to a decision, the unfortunate men were removed to the cells beneath the Court. Half-an-hour elapsed, and the minute hand crawled out until an hour had elapsed since the departure of Iho jury, and the friends of the prisoner began to hope against hope that the lengthy discussion going on in the jury-room portended well for one or other Perm's father, who seemed bowed down with grief, continually protested his belief in his son's innocence ; Mrs Taylor, her daughters and her son, a cad group in their habiliments of woe, and the wretched paramour of Pen n , whose swaggering braggadocio sho wed that the learned Judge's censure on her callousness was rot undeserved, were each the objects of attention and commifseration as the humour took the spectators at this, juncture. Suddenly, after the lapae of twenty more anxious minutes, the buzz of conversation ceased, and the regular tramp of ths warders on the floor of the stone corridor below announced that the prisoners were about to bo replaced in the 1 ' dock. They appeared through the trap-door and resumed their position fackig the Bench Then, with solemn tread, as though fully conscious of the teirible result of the duty devolving on them, the twelve 'jurymen reappeared and quietly took their places. Silence still as death reigned amidst the mighty crowd, which could not have numbered lees than 2,000 persons, as Mr Brewer, the Registrar, asked the foreman : "Have you unanimously agreed upon your verdict?" The silence became painful, and to the ears of the listeners the pause that followed the official's stereotyped question seemed hours. "We haye 5 ' came firmly from the lips of Mr Richard McGee, the foreman. "How do you find the prisoner John Cflflrey— guilty or not guilty ?" asked the Registrar. Another terrible pause, that made the heart almost stop, through the intensity of feeling, and then the foremansaid "Guilty.'' I The formula proceeded, " How do you lind the prisoner Henry Albert Penn— guiltyg or not guilty ?" "Guilty." The foreman intimated that he had been instructed to announce that the juryrecommended the prisoners to mercy. Hundreds of eyes were directed toward? the dock to see the effect of the finding on the prisoners, but their facos were comparatively immobile. Caffrey raised his head a little, and his pale blue eyes, with their habitual woe-begone expression, looked awful in the ray of sunlight that shot down on him. Perm seemed unmoved. The Kegistrar then asked Caffrey in the usual torm if he had anything to say why sentence seould not be passed on him. Caffrey bowed and said, '' I have to say, as Mr O'Meagher has said* that I am innocent of the crime I am charged with. I never caused Mr Taylors deatjh, and never went with that intention. I could face a lion, but to do such a miserable murder or commit an act) of violenca like that I could not." Perm was next asked by Mr Brewer what he had to aay. This prisoner, while his fellow prisoner was speaking,had folded his arm's a little jauntily, and had apparently made up his mind to put a bold front on it. When he spoke his voice bore no tr&ce of emotion. Perm then said, in a firm and unfaltering voice; "Your Honor, and gentlemen of the jury, — I wish to say a few words to you on the unhappy position lam placed in here. I have been led away by John Caffrey, with the intention of getting Mrs Seymour to ,take a trip across to America. With that intention I went away with him, thinking that Mrs Seymour was willing to go witb him. Gentlemen, I had no intention of doing any harm to anyone, and I did no harm to Mr Taylor or his family. Therefore, I don't think the verdict s of guilty chould have been returned against me " When Perm made the remark about Caffrey leading him astray, the latter turned his iace towords Perm, and smiled a little sneering, bitter smile.

THE SENTENCE. His Honor then assumed the fateful black cap, and in most solemn and impreae v'e tones pronounced sentence : — "Prisoners at the bar, after a lengthened trial, and a most, t> bio defence, you have been found guilty', on eyidenco which carried conviction to the mineia ot all who Jieard it, of the fearful crime wherewith you stand charged. The jury have, recommended you to mercy, and that recommendation shall' be duly forwarded to the Governor; but I can hold out no hope to you that it will be acted upon. For since the day when the word was , spoken sheddeth man's blood, by man shall his

blood be shad," no more cowardly or more deliberate murder has ever been planned or perpetrated. From the earth where it was frpilt, the voice of that old manY blood cries aloud unto Heaven. You deemed your escape secure, for the keel of your vessel left no track that human eyo could follow ; but you forgot that • the way of God fa in tho seas, and his path in the wear, water?.' At Hia word the stormy wind arose, which drove you westward to the shore* of Australia ; from whenre you have been brought hither to face your doom. Yet I to you the law will be more merciful than ; you were to your victim. You eenfe him ro his la«-t account withoutone motnent'e respite for repentance ; to you time will be given to prepare to meet your God. With man's tribunals you have now well nigh done, but hereafter we must stand before the jurternent pe*t of Christ: and if you would there fiDd pardon I entreat you to f-per.d in 'penitence and prayer the few days yet left to >on on earth. It now only remains for mo to ;>a?s upon you the last awful sentence of the law : That you and each of you be severally hung by the nock until ynn are dead ; and may tho Lord, in Hfa infi'iito mercy, * have compassion on your souls " During the pronunciation of tho Cjffrey moved uneasily, and frequently Turned hia eyes upwards. Perm did not move until the judge had completed his Ust awful ■pontence, when he drew back and bowed profoundly. While being escortrd from the dock, both prisoners smili-d cheerfully to the crowd. The imniea--e concourse of people dispersed, and the curtain had been rung down on the laat act but one of a terrible drama.