Supreme Count.

Taranaki Daily News, Volume XLVI, Issue 49, 2 March 1904, Page 2

Supreme Count.

MOW PI.YMOITII. TFESPAY. MARCH 1. Before His lloimr Mr Justice Edwards. The Supreme Court, opened on Tuesday al twenty luiniilos past elev-l GRAND J PRY. ! The following grand iurv was! sworn :-A. c. J I, Collins. L. W. Will- 1 lace. E. Griffiths, A. !.. Cooke, A. 11. (iruy, John Avery, E. J Curtliew. Tims. J. Furlong. 11. J. Okev, J. Hollo, F. J. Morris. Newlon King F. M. Turlon, Jos. Little, Alfred 11. Arnold. All. Drake, George E. .Mimneiang. Win. J. Shaw. Arthur P. ()'- Leury. Charles E. llellringer. Tims. O. Kelsey, M. Fleetwood. Mr Newton King was chosen foreman. His Honor, in addressing members of the grand jury, staled that there would only be one bill presented to them, showing a very satisfactorystate of things in the district. The charge that the jury would have to investigate was one of manslaughter against, a man named Itultoii. (His Honor here read the general law delining manslaughter. He also pointed out that there was another section, i which dealt with the provocation objcctcif manslaughter, in which force' could be repelled by force, provided I there- was no intention to harm.) From Hie depositions it would appear without doubt that Unit on had caused Ihe death of O'Slu-a ; and there was no doubt that lie did not intend lo kill the man. The fatal blow was si ruck in the course of a light, and Hie quest bin was raised, did O'Shea first assault llutlon. ami the blow that caused O'Sheu's death follow? If the jury was of opinion that the fatal '..10w was caused as a result of an assault by O'Shea then the jury would be justilied in returning no hill. If. o'n the other hand, O'Shea did not provoke Hutr ton in a quarrel then the jury would be justified in returning a true bill. It would appeal- from the depositions thai there were two lights, n short interval between : and if the jury was satisfied that O'Shea caused the second tight then the jury would return no bill. The whole question, in his mind, came wilhin the first part of section fit) which referred to Ihe use of force lo repel force when attacked, but not with the intention to cause harm. (His Honor again read this part of the section.) If the jury had any doubts about the cause of the fatality it would perhaps be better to refer the matter for fuller investigate to the petit jury. The grand jury then retired to consider the bill. I Section 50 of the Criminal Code leads :—lovery one unlawfully assaulted, not having provoked such as-j sanlt. is justilied in repelling force by force, if the force he uses is not meant lo cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-de-fence ; and everyone so assaulted is justilied though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made, or with which the assailant pursues his purpose,l and if he believes on reasonable' grounds that he cannot otherwise preserve himself from death or griev-' ous bodily harm. I The grand jury returned at 12.311, ' after a retirement of two hours, and' I returned a Hue bill against llutton. I I The grand juriors were discharged.' I T-he common jurors were lliotisum--1 moned. i Messrs Clem Wvbstei', J. W. Davis and J. Brown were excused, i Mr Samuel called his Honor's attention to section 17 of the Criminal' Code Act, which provided that after, | Ihe liuding of a true bill, and before arraignment, the Court might lake i certain action if they thought the offence charged might- be met by a 1 I nominal punishment ; und that, in its discretion the Court might ilis-' charge the prisoner. Ilis Honor declined to lake such action. ; ALLEGED M A.N'SLA |'(j HTMU, Leouurd llutton was then charged thai he did on Oct. 1, 190.'!, on the Ohura Road, near Toko, commit the I crime of manslaughter bv killing' one Timothy O'Shea. j Accused pleaded "not guiltv." The following Jury w'us empanelled:l Messrs Joseph Parker, A. t.'hollworth, (I. Y. Tate, W. 11. Bishop,! E. 1 tor A. Ross. .1. D. Vwlov, Claude 1 Roberts, Thus Bell, J. 11. Slu-p- 1 pard, W. 11. Roberts. Mr li, V.l | Tate was chosen foreman. I The remaining jurors were relieved, i from attendance till Wednesday a;. 1 10.:t0 a.m. I Mr Kerr pnosecuted for the Crown,' and Air Samuel, with him Mr Buck-' ett. appeared for the defence. Mr Kerr uddiiessed the Court on the, facts of the case, and us it was then 1 nearly one o'clock the luncheon ad-[ jonrnnienl. was (alien. On resuming al 2 o'clock Mr Kerr called, ' 'I Br. Carbery, of Stratford, who gave evidence that when O'Shea was' placed under his charge O'Shea was in a state of partial coma. He was unable to answer a lew questions,' Next day (Oct. 2nd) O'Shea was' quite unconscious, and at J p.m. ho | held a consultation with Dr.'Paget, l as O'Shea appeared to be ""sinking.'! 1 At 7 a.m. next day (Oct. IS) o'Sheu| ! died. Witness mude a post mortetii' ! examination. O'Shea was u man of | about 40 years of age. There were ' contusions of the right shoulder, tlie 1 . right and left, eyes, a laceration of the left ear about two inches in length, two cuts inside the lower lip, l . ii swelling of the scalp in the buck of ] the head al Ihe right side, On an incision of the swelling he found "aV blood clot seven inches by eight in- ' dies, and on removal of the scalp ho j found an internal clot correspondiii b to the external one. and it was compressing the brain. The clot corresponded al the centre wi.th (Ji s - fr.ic/.urp ill Ihe base ol Ihe skull. 'IWe were blood clots and Ihe presence of inlininmnlion m"" the brain. There were two fractures of Ihe skull exlending from back to front, which caused ruptures of the arleiy. The other organs of the body were healthy. The cause of death was hemorrhage, caused by fractures of (he skull and laceration of the |>r;iiu. a heavy f:j!| |i,i .he back of the head was sufficient to account for Ihe injuries. ', To Mr Samuel : The only murk that could cause serious injury lo ' O'Shea was the injury al lite back 1 of the head which might have been caused by a fall. He hud known llutton for eight months ami knew ! nothing of him Hint was not good." The line of one fracture passed ' through a bone that, had .-videntlv ' been affected by the state of one of the ears of deceased. Ernest Cate, a labourer at Toko said he remeiubere;| O'SJi.-a and (ia'|- ' lllghtu- impairing the East Ronil on'' Ocl.l, ileal' where he (witness) was' J working. Gallagher tipped a loaci' ! of earth for O'Shea to spread, ai|(| ' then lel'l with ItV d|-iiy, lint lon,' ' .Morrison und Taylor runic up, from ' Toko, walking in the direct ion oi * Stratford. Morrison slat-led lo Inlk I lo O'Shea nboul working, saying he,' (Morrison) was as good as O'Shea. The hitler K.ld him lo "go on," ns ! * he didn't know what a day's work' 1 was. Morrison wanted to h'et H'yheti l ' £5 thai, he was a 1...-',;.,,, workman' " limn deceased. O'Shea told him thai'> he had no lime to (ail., as he was' ' paiil to work, but would tjti!; (ii'V Morrison a'i ills (O v SIH-<i v s. house on' ' Sunday. ttlpnison used abusive " laugKiigu lo O'Shea. who filially! V crossed the road to Morrison , U ni told l*iti he could q,,| () ut up with any more of his language, and then " went back to his work. Morrison 1 kept on talking tp O'Shea, HutUm! H was talking |o witness. llutlon told Morrison to keep quiet, as tljey c did not want a low, and Wiejo was no need for one. O'Shea again went V over to Morrison, and llulton re-! pujited several limes that they did;v not want a row, Morrison then said n he had done nothing to cause a row.j v O'Shea said that Morrison had done so. O'Shea wtmt to Morrison in a n fighting attitude, and Morrison fold-j ed his arms. llutton again told d them not to have a row. O'Shea ut-j tered an indecent remark lo Ilu(tonJ 0( Witness then looked round to see! where Gallagher was, and next time

lie saw the men Hill ton and O'Shea. were fighting. A gig passing- stopped (lie fight for n luunionl, mill then llie lighting wns resumed. Saw O'Sheu knocked down. He told (ialluglicr nhoiit the men fighting, and I lien held ll». horse so i hut il would not run away. Alice O'Sheu was knocked down, (lallughcr picked him ii|i and pin. iiini in liis drav, Hi' huh | thi/ctl, and was bleeding lit llie I mouth. Gallagher look O'Shwi home I in the dray. , i To Me Samuel : llulton nru-,1 no of- [ fellsive language towards O'Shea.and appeared to go his best lo proven! a disturbance. Hutton appealed to he| defending himself, rather than being the aggressor. He-examined by Mr Kerr : Saw llulton take oil' his coat ufler re-; marking that "if there's to be a row, there must be a row." He hung his coat on the fence. Ilnniey liallagher, labourer in the employ ol llie Stratford County Council, gave evidciitt/.' that he was working with O'Shea on llie day in question, lie tipped a load of earth on the road, anil went back to the [lit for another load, leaving O'Shea spreading. On the way he saw llulton, Morrison and Taylor standing on the road, near O'She'a's work. In consequence of a statement by Cale, witness returned lo where O'Shea I was. When he came in view of the I place lie saw Mutton and O'Sliea | fighting on the metalled road. Went up lo the scene of the light, and iust then a gig passed. Ilutlon leaned against Hie fence then, saving lie was dune, and had had enough. .Morrison said "1 didn't think vou were such a cocktail," O'Shea was standing in from, of Ilutlon, but witness heard noil her of I hem speak. Saw O'Shea going over towards his hat, when Hutton (old him lo put up his hands, and O'Shea said "All right." They closed, ami both fell, O'Shea being on top. They rose, and recommenced hostilities, and O'Shea was knocked down, apparently from a blow in the chin. He fell buck- ] wards. O'Sliea did not get up, and 1 Oallagher picked him up and held him on his knees a while.-Thon mov- ' ed him across to the fence, and Morri- ; son brought some water in his hat to pour over his head. Hutton came up | and put two half-crowns in O'Shea's "I hand, but witness guve it back to 'I him. O'Shda was insensible. lie | then look the injured man to his '| hut, and later that evening he took '| him to the Stratford cottage hospit--1 al. ' Mr Samuel here admitted that the "I man llulton was fighting with died j as stated by the doctor. I To Mr Kerr : The young men ap--1 peared to have taken liipior, hut were not, drunk, lly Mr Samuel : llefore tipping that I load of earth for O'Shea, witness had e . passed Hutton on the roud. Hutton "l and O'Shea were at that time friend"l l.v. nnd hud had no quarrel. Even ;' when he saw Hutton in the lull in the 1 lighting the man did not appear to be angry. When Hutton said "I'm done, I've had enough," he was laiin- " ing with his arm over the fence, with O'Shea standing straight in front of [' him. Witness tliouglit Ilutlon want--1 ed to stop then. When the trap passed by, the men were all on the ' same side of the road, and he heard llulton say, " I give you best, old ' man. You're too good for me."()''i Shea replied, but witness diil not l ; hear the answer. The light then nL , commenced. The appearance of the I combatants was ipiite consistent with the theory that O'Shea was anil gry, and Hutton on the defensive. I Hutton had a good character, and I was not known as a lighting man. 'i o'Shea seemed to have the best, of it. To Mr Kem- : While the gig was passing Hutton answered Morrison's taunt about being a cocktail by sayT' ing he would have another cut at O'Shea when the trap passed. \\ Alfred (ieorge Taylor, who la OclL oher iast was working for Messrs u Derby Bros., at. Toko, said he was i with Hutton and Morrison on the occasion mentioned. He heard Morri- :|, son challenge O'Shea in shovelling work. O'Shea told him to go to h—, as l»e had never done a day's ' work in his life. Morrison said, "Haven't I ? I've gut a live pound note here, and I'll shovel you any I day you like for a fiver," Deceased a said, "Vou come down to iu.t place e on Sunday morning, and l'H give {' you all you want." |t|id language j passed between them, and then O'Shea stepped up to Morrison. Hut- : ton was going past. O'Shea and said, - "Don't take anv offence, TM chap , we're only having a juke." With - Hint (Ji'Sliea threw ih.wn his hat, f| dropped his shovel, and challeimcd - Hutton to lighl, llulton said, " We . don't want a row ; we don't want a light." O'Shea stood wailing for lj Hutton in the middle of the road, i rolling up his sleeves, and shaping as I if lie wanted a lighl. Ilutlon said, , "Well, if there's to be a row, we'd - better have one." Hutton took ofl | his coat and hung it on the fence, and J then started fighting. They stopped i| lighting whilst a trap passed, Hut- ■-, leaning on the fence. The road was I narrow just there. Whilst leaning (\ on the fence, the. licensed said "He's too, iiitiny [or l'ne, I've had enough." >, They were all standing by. Just he- < fore rc-commeiiciiip;, O'Shea said, "You're faking your own time over ). it." Saw Hutton strike O'Shea on .| the chin a few seconds afterwards. 3 and llie latter fell backwards, being J unable to rise. O'Shea looked .' "very b.ad." (iallaghcr picked up, .'! O'Shea and took him to the side of i, the rond. He and his mutes had i had a few drinks in the Toko Hotel, f but were not under the influence of ■ liquor. J To Mr Samuel : During the whole 1 affair Hutton neither said nor did ' anything to provoke a tight, nor was .' he angry, whilst O'Shea appeared to ! be "very wild."' Hutton tried to prevent, a row, and i whilst lighting appeared to do no 'more than he Was bound to do to '■ keep himself from being hurt. Saw ; Hutton give O'Shea live shillings, ; saying "Vou know'it's your own - fault, old man :'l didn't want to ' light ,»ou ; but I'll pay you for your ' day's work if you can't go on work- - ing." or words to that effect. Could -' not remember O'Shea saying tolluf- ' ton "Voure not going lo get out of 1 il like that" when the latter said he •' had had enough. Hud never heard ot ' Hutton as a fighting iun.ii. He' was a quiet and rrspirl.uhlc. young fel- ' low, o'Blu..t was the better man of ■ the two. Witness had heard it said that deceased had fought in the flHtf, 'i William John Morrison, labourer at Toko, \vfi!> nut examined by the pro- ' seenl ion. ', To Mr Samuel : Witness said he was the cause of the light at Toko, lie challenged O'Shea to a shovelling contesl, and made him annoyed. O'Shea came up to him dragging . his shovel behind him. He did not look as if he was going lo light, witness.' ilutlon did his best t u prevent a lighl, and frcc|uc.|,(!y appealed to O Shei) Hot lo make a row. After (he lirst limit Hut too saii| O'Sliea was the best man, and " thai i„. ■ (Hutton) had had enough, hut .)'- ' Shea refused to |i,, appeased, and insisted nil ivuliuuiug Hie light. IlmI Um did not seem lo lose hi* temper nl all. hul tried lo stop Ihe light 41,1 '"' '"' to do no mure than act 111 scll'-ilclViire. There hud been no ill-will between lluiton and O'Shea I I'.y Mr Kerr : Did nuUiing to pr'eIvent the light.(!!!«. Could , lul remeni- ' her wVuU was said between the two 1 ""'" »' 1 "'" "»e trap passed, Could 1 not remember swi.ni; O'Shea cross the road to |,j M | ml , |,,d „„, my |() Hutt'mi iniylhhig about his bciii'f a cocktail. Witness was not muter the j influence of liquor ill the time. Could not remember Hutton saving i lt , would have another cut ul O'Shea Charles Kdward Hyde, constable at sirallord, gave licensed a B ooil character during the past twelve months lie was not a drinking man, a quarrelsome man, or n fighting man This closed the case for the prosecution. u.i M ','i ""."i""' 1 S " kl llp '"" not k « ow Whether there was a case to n „ BwlM , wl,' I, ,T Said U '>" " l 'l'««lwl on Whether the jury were sutisiied that ccsed had done nothing more tin,,, was required to defend himself •Mr Samuel said nearly all the wit nesses hnil stated that' IDs Donor said he could not withdraw the case from the Jury Mr Samuel opened briefly and placed in the witness-box Leonard Hutton, Hie defendant,

who said lie remembered Octebcr. Ist. The <lny .was too wet for work nt the sawmill, so be itml his mates weal into Toko, returning about :) o'clock. When they hud gone some distance I hey came to a dniv which O'Sheu unci Gullugher were lining wiih earth. Jle mid liis friends had been dialling amongst themselves, as 10 which was the bellei■—mill-woi-k or navvying. Witness stood up h.r mill-work, and .Morrison laughed „nd said '■. here's nothing like a hi, ,„ iianwnfi" "hen they came i„ Hit (Mil Morrison said "here's some navvying work; I'll shovel you." Witness got Gallagher's shovel uml threw a lew shovels-lull into the druy, expecting Morrison to do the suine. 'l'he latter didn't come up so he I'el't the drif and went n]i the road. A little further up the road he saw Cute working alongside the road and witness got over the gale to help him in digging a drain. (.'ate anil witness were inside the fence, and .Morrison and Taylor stayed on the road. After working u bit, he said "I'm only making a mess of this," and left oil'. Turning round he saw Morrison and O'Shen talking together, tint over the fence uml stood neur O'Smut. They were blackguarding one another, .Morrison being worse than O'Sheu. The latter went across to .Morrison dragging his shove), saying he would stand uo more of it. Witness said to O'Sheu "Don't take unv notice of him ; we don't want a row." Morrison and O'Sheu crossed a few more words, and then O'Sheu went back to bis work, the abuse' still continuing. A few minutes luter O'Sliea .bopped his shovel and (>ot excited, and going up to Mornton looked as if be would hit him. thinking that there was to be .a light, he said ■•Don't take any notice of him," speaking to O'Sheu. O'Sheu uuswered insultingly and threw down his hut, stepping up in a threatening manner to Morrison. Witness retiiurked "Well, if there's to be a row, there must be a row," but he had no intention of interfering, us. he thought O'Sheu und Morrison were going to do the lighting. O'Shen said he was not afraid of either witness or Morrison. Witness suid '• Will you listen to me for hall a minute'.'" but O'Sliea knocked lilm down. When he got up O'Sheu rushed him again. Witness did not want to light, us they hud no quarrel. They closed, struggled, und fell, und when they got up a curl wus approaching, so they eased oil' to let it go by. O'Sheu said ••You're taking your own time about it." Witness then went across the roud umd leaned against the fence. Morrison said I "What, are you done?" and witness answered "Yes, I've hud enough; he's too good for me." O'Sheu was close by and could heur this. Morrison suid ' What, are you hurt'. 1 " : und witness said he wus not. Morrison said "Well, 1 didn't think you were such a cocktail." tie then said , to O'Sheu " I'll give you best, old 'man ; you're too good for me." lie replied' "Oh, you can't get out of it like that," and squared up. The light was resumed. O'Sheu made u rush straight at witness, and not knowing what else to do, struck out with his right hand and hit the man on the face, knocking him buckwards. Tried to stop the light, llud no chunce of knocking oil during the light, us O'Sheu wouldn't listen to him. Jle fell as if he couldn't hit the man, as they hud no difference. I To .Mr Kerr : (,'sed no bud language to O'Sliea. When O'Sliea. said he : would light either Morrison or witness, he (dveensed) stepped into the j middle of the roud in a lighting attitude. Uould not soy when lie took oil' his coat—before or after the first fall. Did not say that he would have another cut when the trap had passed. Any statement to that effect was false. Never called on O'Sheu to put up his hands. The whole light lusted about a quarter of an hour. O'Sheu j would not listen when he tried to show him there was nothing to light about. Hud his cout on when the first blow wus struck. Was soner, und knew quite well what he wus do» ing. To Mr SuniHel : Had not taken any spirits, but a little colonial beer, anil also sursupariUu und lemonade on u couple of occasions, i To a juryman : Jle and his mutes did not go out for a spree. They I went out to pny bills. He wus not | a lighting limn- He did not know where he wus placing the blow that I knocked O'Sliea down. Had only had il|ie gloves on hahu doA'U titn'us in his life. | To Mr Samuel : Hud not hud a I light but this since he wus a boy of i lo or 10 years of age. | Mr Samuel addressed the Court, rei marking that the licensed had been | siillicienll,v punished by the remorse . following on the fact that he had un--1 wittingly caused (he death of one of his friends. If Ilutton were convicted he would ulwuys be under the I cloud of liaving committed a felony, ] The law hud no finely defined line bcjlweeii the man who, bv brutal 111I treatment had killed his wife, and a lease such us this, where the man reIpelled an ultiick. I His Honor said there could be but ! little question thai the prisoner hud I acted origmully as a peacemaker. If Ihe wus responsible for the continuance of the lighting after the trap hud passed, then he wns guilty „f this charge ; if the continued 'lighting wus forced on him then he was innocent. If the light w„s continued in consequence of Morrison's « Vol . k . tail" taunt, then H.HUwi was guilty o( nianslaugli'et'. Gallagher's evidence on this point wns flatly contradicted by Taylor, who said Hutton wunled to stop lighting then. The evidence of Morrison must lie taken lor what, it w;v,i worth, and as fains it W'e.ni. The imcstiou really lay !>,.«ween the evidence of Gallagher on the one side, u.iu.l (hut of Taylor, Morrison and (he prisoner on' the Other. The jury retired at 4.20 p,„ ,„ consider their verdict, and in four minutes returned with a verdict oi "Not Guilty," The prisoner was discharged, and eit the Court amidst Hie congratulations hi his friends, who had ~i-l.i'W.eU l.i'W.eU la large numbers from Si rat lord and Toko. "" A.N APUUC.VITOV. Mr Malone asked that the rerlior- «!•■ case, Fleming v . S pence, be adjourned until Wednesday week March ilth. when the case' for damages between these parties will be Air Ilcckctt, for Mr Myers, opposed the application in the absence, of con- J sent ot the opposing oariy. lis Honor Vfec'int-d to g raM ~ uojounim^ii, IN' DIVORCE. Upon the application of Mr W. (J Beckett (instructed, bv Mr Hpence of Stratford) u decree" absolute was granted in the ease of Wells v Wells and Hogben,