THE COLONIST. NELSON, TUESDAY, JULY 16, 1861.

Colonist, Volume IV, Issue 389, 16 July 1861, Page 2

THE COLONIST. NELSON, TUESDAY, JULY 16, 1861.

The July sittings of the Supreme Court commenced yesterday, in the Provincial Hall; and when we recall the time, not long since, when the old Court House had to serve all the requirements of our halfyearly assizes, we can but conclude that the discomforts of the old forum were intolerable, that Justice is benefitting with other things in the progress of our province, and that the spacious accommodation now afforded is as acceptable in the way of comfort, as it is accessory to the dignity and reverence which should be inseparable from a just administration of her laws. His Honor Mr. Justice Johnston took his seat at ten o'ciock, and after the usual preliminaries the Grand Jury,,composed of the following gentlemen, was called:—o. Curtis (foreman), J. Barnicoat, M. Bury, A. S. Collins, J. Lockett, J. Lowe, N. Edwards, J. Fletcher, A. G. Jenkins, F. Huddelstone, F. Kelling, A. Kerr, J. Levien, D. Moore, N. G. Morse, C. Muntz, and R. K. Newcome, Esquires. His Honor then delivered the following address :—

Mr. Foreman and Gentlemen of the Grand Jury of the Middle District— In meeting you for the first time in this spacious and handsome building, which haa been kindly placed at the disposal of the Supreme Court for these sittings by his Honor the Superintendent and the Provincial Government of Nelson, I have much satisfaction in publicly acknowledging my appreciation of the respect they have thus manifested to the Court; while I also profit by th&opportunity in order to express my thanks for the cordial courtesy which they have always displayed towards myself since the grave duties of the judicial office first devolved upon me. It is my most anxious hope and desire that a full, candid, manly, and intelligent sympathy and cooperation should always be cultivated among the Legislative, Executive, and Administrative depart* ments t>f the Colony, both general and local; and that whatever may be the difference of mens 1 opinions and feeling 3 upon other matters, either political or social, all parties and departments, men of all shades of opinion, all classes and the representatives of all interests, will at all events, agree on one point, viz., the essential necessity for preserving the administration of Justice pure, independent, and impartial beyond the reach of personal, local, or party influence, —and thereby secure the best ultimate guarantee oftheir civil and political liberty and rights. I think it right to mention that at a Conference of the Judges of the Supreme Court held recently at Auckland, many questions and matters of the greatest interest respecting the administration of justice were taken into consideration, and a number of reports and memoranda were transmitted to his Excellency the Governor, in the hope that the attention of the Legislature may be directed to them, and such action may be taken respecting them as it may deem fit.

The establishment and procedure of a Court of Appeal, Error, and Reserved Cases, both Civil and Criminal, composed of the three judges Bitting together, a revision of the Jury system, a eystoni of prosecution of offenders, an inquiry into the condition of gaols, the necessity for a proper penal establishment, and various other matters of similar character were made the subject of reports and suggestions. Moreover, among a series of new rules of practice and procedure settled by the judges, and now actually itfforce, provisions^were made which, along with a short legislative enactment on the subject of interim injunctions, will, in our opinion, probably prevent anything like serious inconvenience arising to the community, even where the business of the Court has greatly increased,--in placos like Nelson, where immediate access cannot at all times be had to ft Judge of the Supreme Court. Should the Jury system be revised, rules of practice might easily be introduced for the purpose of giving the minimum amount of inconvenience to the Jurors, with the maximicm of convenience to the public; and further arrangements can easily be made, by means of which a considerably larger amount of business, if it should arise, could be easily discharged by the Judge *>n his periodical visits. The Calendar and depositions which lie before me do not seem to calljfor any general observation!! as to the condition of the community of this district, the prevalence o? crimes of any particular class _or character, or the want of measures of prevention or prosecution. There is one case, indeed, of the very gravest possible character, as affecting the administration of justice generally, to be disposed of at these sittings—a charge against a constable for the odious and abominable offence of procuring the conviction of an accused person by deliberate perjury. But with that case you will not be troubled, as the Grand Jury found a true bill at the last sittings of the Circuit Court in this place, although no previous charge had been made before a Magistrate during six months which had elapsed since the commission of his offence.

With respect to that proceeding, I feel bound to remark that, although it is undoubtedly legal, and the Grand Jury were bound to deal with the bill so presented to them,—it is a course of proceeding not to be encouraged generally, inasmuch as it may lead to great oppression and hardship, since it deprives the accused of the advantage of knowing, or having a precise statement, such as the depositions in ordinary cases afford him, of the substantial evidence to be brought against him. Circumstances may justify this mode of proceeding, and in this particular case it may turn out that thero has been some valid reason for deviating from the ordinary course.

Still it is right the Commmrity should feel that the presenting of an indictment to a Gr&nd Jury without prior notice to the accused, or preliminary proceeding before a Magistrate, is a step which, in ordinary cases, would not be deemed justifiable, but would expose the prosecutor to suspicion and animadversion. The first of the casea for your consideration to which I will direct your attention is a clurge against an aboriginal native, named Arapata to Waretuturu, for the manslaughter of another native named Manahi to Poka at Mofcueka.

You will probably find that on a day near the end of last year, the accused and the deceased were seen together apparently in an advanced state of intoxication, and a quanel having arisen betweon them, the accused took a stick out of the hand of the deceased and struck him with it about tho head. The deceased fell down aud was dragged along. A medical man was called in some nine days afterwards, and he found an injury on the head of the deceased, from which he never recovered. It is alleged that ho died in consequence of that assault about three months afterwards.

Your first care will be to see whether the medical evidence satisfies you that the deceased died in consequence of some injury received from an external source. Your second, to consider whether there is reasonable evidence that the injury so received was caused by the accused. With respect to the circumstance of intoxication, I must tell you that voluntary intoxication is no excuse for an offence committed under its influence ; unless, indeed, it has proceeded to such an extent as to produco fixed, permanent insanity. There is no ground for such a suggestion in the present case.' Thon, supposing you see ground for thinking that the death of tho deceased was caused by a blow or other injury inflicted by the accused, it is my duty to tell you that overy killing is, by law, considered murder, unless there be circumstances which prove it to have been justifiable, or excusablo, or which negative malice, express or implied (which ia an essential constituent of tho crime of murder), and therefore reduce-the act to tho inferior eriino of manslaughter. There ia no kind of pretext thtit I see, on tho face of these depositions, for suggesting that the act of Arapata, the accused, was either justifiable or excusable; and tho only question left is, whether the offence was in point of law, murder or manelaughtor. There scorns to bo do ground for suggest-

ing express malice, or any actual desire or intention on the part of Arapata to kill Manahi; but that does not get rid of the question of murder. For the law wisely says that all persons must be presumed to intend that which is the probable and natural consequence of their acts, and will not ordinarily tolerate the suggestion, for instance |feat a man who has stabbed another through the heart, or shot him through the head, or injured him with a deadly weapon, did not intend or wish to kill him, and had no malice against him. But out of tenderness towards the frailty of human nature, the law engrafts an exception to this rule, and says that if the act which causes death was dono on I sudden provocation, in heat of blood, without any circumstance of deliberation, the offence shall be manslaughter and not murder. lam not sure that there ig any ground for such a supposition in the present case. But besides this j if the nature of the weapon and the amount of violence used by the aggressor were not such that it could be reasonably expected that death would be caused or accelerated thereby, but circumstances not likely to be contemplated rendered the injury mortal, the offence would be manBlanghter and not murder. If the persons charged with the prosecution of this case, lay before you a bill of indictment for mani slaughter only, as they may deem themselves justified in doing under all the circumstances, you will probably consider, if you are satisfied that the death was caused by the act of the accused, that there is, at all events, uprimafacie case of manslaughter. If the indictment be for murder, it will be competantforyou, if you think the circumstances reduce the offence to manslaughter, to find a true bill for manslaughter only. I need not remind you of the great importance of conducting criminal cases like this, in which persons of the native race are implicated—in all their stages —with the utmost vigilance and carefulness: for I am convinced that thore is nothing which will tend to give our Maori fellow subjects more instructive suggestions of the blessings and benefits which they may expect to derive from' cheerful submission to the authority of the British crown, than the contemplation of the enlightened, impartial, and vigorous administration of criminal justice, whereby they may feel sure that their lives, liberty, a &$ property will be effectually protected, at the same time that the innocent will be vindicated and defended against false accusations, and punishment will be awarded only where criminality is established by satisfactory evidence. The second case to which I shall allude is a charge against a person named Christopher Lange, for assaulting Emanuel Eban, with intent to do him grievous bodily harm. It would appear from the depositions, that some quarrel or grudge had existed between the prosecutor and the accused, and that early on the morning of the 30th January, Eban, the prosecutor, being in pursuit of a cow, went into a stockyard not far from the house. I do not quite understand from the deposition, whether the prosecutor claims any right to the stockyard in question, or whether it is admitted that it was rightfully in the occupation of the accused. When the prosecutor got into the yard, the accused, who was inside, proceeded, after some words not unimportant for you to notice, to attack him in a violent manner with a stake, and inflicted injuries upon him which you will hear described, using at the same time language which will be very material for your consideration as to the question of justification and intention.

I shall suppose that the stockyard was in the lawful possession of the accused, Lange, as against the prosecutor, Eban. The law with respect to trespassers is this: If you find a trespasser in your house or on your land, and you want him to leave it, you must first request him to do so, and if he then refuses or neglects to do so, you may proceed to use force to eject him; if he broke into your close with violence you might use force at once: but you are not at liberty in either case, to use any more force than is reasonably necessary to remove him. Ifi he resists, and uses violence, you may proceed toßUch further force as is necessary to remove him, but for any excess above that you will be responsible.

It will be for you to consider under all the circumstances of this case whether you are quite satisfied that the accused was lawfully in possession of the yard, and that what he did was done merely in defence of his lawful possession of it, and that there wa3 no excessive and unnecessary violence used for the purpose of removing the prosecutor. If you are quite satisfied of all these matters, you would find no bill ; but if you think there is evidence to show that the assault was not committed in defence of possession, or that it was in excess of what was necessary for removing the trespasser, you will then have to inquire, if the indictment be for a felonious assault with intent to do grievous bodily harm, whether such intent existed. You will have to consider the weapon used and the character of the assault, and see whether grievous bodily harm was likely to arise from the assault; but you need not be very scrupulous about finding the intent, because if you find the assault with the intent •lleged, and it should turn out that the circumstances ignore the intent, the Petty Jury have power, under a modern statute, to find a verdict of unlawful wounding only. If the indictment bo for the misdemeanour of unlawfully and maliciously inflicting grievous bodily harm, withont alleging the felonious intent, the only question will be whether there was excessive and grievous bodily harm.

The next case is one of horse-stealing, alleged to have been committed by two men named Ingham and Allen. The outline of the case seems to be that early in 1860, a person named Jones bought a horse with particular marks, at Nelson—that he entrusted it to a man named Hargreaves, who placed it on a run called Thompson's run j and neither Jones nor Hargreaves afterwards disposed of it. Now the same horse is traced to the possession of the prisoners, or one of them, in the month of July, 1860, and was afterwards missed off the run. If you are satisfied that tho horse dealt with by the prisoners in July was the same which had been placed on Thompson's run some months before, and that it must have been stolen off that run within a few months before that time, you will conclude that the prisoners were in possession of a stolen horse soon after it was stolen. If so, law and common sense alike suggest that if these persons had become honestly possessed of the horse they would be able and onght to give a satisfactory account how they became possessed of it, and, iv order to be satisfactory, the account must bo either supported- by distinct evidence, or be consistent with the evidence given. In the absence of any such account on a charge being made, and especially if you find that either of the prisoners used language inconsistent with innocence, you will have little difficulty in finding a bill. Tho last case to which I have to call your attention is that of an indictment against a person, named Thompson, for stealing 104 sovereigns from the person of a mariner named Burbono.

In this case the evidence as implicating the prisoner is purely circumstantial; but,, as'you must know very well, circumstantial evidence may bo aa satisfactory, or even more satisfactory, than direct evidence; and you have merely to exercise your common sense as you would in the ordinary affairs of life in order to determine whether such a case is made out before you that the prisoner may fairly be put upon hia trial. The nature of the caso is this—that the prosecutor, a seafaring man, was drinking at a public or accommodation house at Blenheim, one night, about last Christinas time; that lie had 104 sovereigns upon his person; that he fell asleep in the public house in a state of intoxication; that on waking he missed his money; that the prisoner was in the same place with him when he fell asleep but was gone when he awoke. Furthermore, it would appear that the prisoner on being accused of the theft shortly after, went away from the place, although he had made arrangements to work there for some time. Moreover, it will probably be shown that shortly before the prosecutor's loss the prisoner had been acting and talking as a man who had no money, but required to borrow some for the supply of his immediate wants, and that shortly after the prosecutor's loss and his own departure from Blenheim, ho was dealing with considerable sums of money both in gold and in notes. The gold of course cannot be identified, and of course ho could easily procure notes for gold. Thus, you will find then that the prisoner had -in opportunity of committing the robbery: that he was one of a very small number, some or one of whom must in all probability bavo committed the robbery: that from apparent poverty just before the robbery he comes to comparative wealth just after it, and that in spite of reasons for remaining where he was when tho robbery was committed, ho wont away when he was accused of it. If you think that these circumstances amount to more than mere suspicion—that they make out a pvima facia caso against him, you will, no doubt find a truo bill against the prisoner. It may perhaps, soem unnecessary to somo of you, that I should go so minutely into the facts and tho law respecting cases of so little complication or difficulty; but remembering the fortunate paucity of criminal cases with which you have to deal, and the facility with which tho most experienced are apt to overlook matters of trite and ordinary character who« out pf practice, I boliove you will think I have

not trespassed on your patience by the remarks I have offered for your consideration.

At the close of the address his Honor dwelt upon the necessity that a Resident Magistrate should sign and number the depositions taken by them, in order to secure the proper evidence of eomraitment.

We have no room in this issue for the details of the cases tried yesterday ; the trial of William Harper for perjury resulted in his conviction; sentence to be declared this morning. Christopher Lange was found * guilty of an assault causing actual bodily harm,' and sentenced to six months' hard labor.

General Government Prize.—-The return of the firing in the Canterbury province shows but a low score: Sergeants Berwick and Revell made the greatest number of points, namely, 16 and 15, all the others were below these numbers.

Found Dead.—We have heard that the dead body of a man has been found on Spooner's range, Wangapeka, supposed to be a person lately living at Fawcett's, and apparently having died four days previously.