SUPREME COURT.

Taranaki Daily News, Volume XLVII, Issue 8066, 23 March 1906, Page 2

SUPREME COURT.

THURSDAY, March 22nd. [Before His Honor Mr Justice Edwards.] ALLEGED INCENDIARISM. On Thursday morning the hearing was resumed of the case against Daniel McL'Dowie, charged with having set fire, at Matapu, on the Hastings road, ou Ist December, an ensilage store aud cowshed; on 9th December, a dwelling house ; on 19th January a stack of ensilage ; and on 22nd January a stack of hay ; all being the property of Duncan A. Poole, and on his farm. Decteetivc Sidells, re-examined by Mr Kerr, stated that the different statements taken from members of accused's family had been read over by him, and been signed by them. Mrs McL'Dowie had distinctly told him that her husband said, " There is no one at the fire." He spent over an hour in eliciting from tho family all they knew of the events of the night. Regarding Mrs McL'Dowie's statement that she had not been asked if her husband had returned a second time, the detective was emphatic in stating that his examination of these witnesses was so lengthy and minute that he would have elicited this had it been in their minds.

Duncan A. Poole, re-examined, stated that he had, on the morning after the fire, recognised the prints of his own horses near the cowshed. When his son went for the police early that morning he passed up this drive and returned by it, on horseback. His son was a long time away, and ou his return he found that his horse had cast a shoe.

Mr Welsh addressed the jury. He emphasised the fact that the witnesses for the prosecution, including a trained constable, a highly educated man like Mr Poole, senior, and intelligent young men like the Pooles, all out for the specific purpose of finding these traces, had not taken some picture, some record, or some measurement of the footprints and hoofmarks found, to connect them with tho accused. He asked why none of the witnesses for the prosecution had gone into the haystack paddock. Their attention seemed to be directed to the man seen by the policeman in tho cow-paddock, whilst McL'Dowie, the accused, when he came out of his house would be unaware of the existence of this man, and would, of course, rush off in the opposite direc • tion, to the burning stack. Referring to Mrs McL'Dowie's apparent inconsistency, that seemed to him an honest mistake, adhered to with a woman's natural obstinacy. If the jury believed the evidence of Ida, then that proved accused's evidence, for that showed ascused came out of his room, undressed, just after the alarm was given. If what she, and Grace, and Mrs Alford, and Mrs McL'Dowie said was true, then accused could not have fired that stack.

His Honor: If the jury believe the „ evidence of the female members of the it accused's family, then they will acquit the prisoner. s Mr Welsh's address lasted just over g an hour and a half, Mr Kerr commencing his address at sixteen minutes tt past twelve o'clock noon. He pointed to the fact that the accused had not [ denied that he had been on Poole's . property at unreasonable hours of the „ night. What was he doing there? '. The tracks of the slipper found crose sing the road, from Poole's to accused's after the first lircs, raised strong suspicion that accused had caused * those (ires. Then, why had accused L ' denied wearing a boot and slipper, * until confronted with Mostyn Poole who had soon him wearing tlicm, un- ™ less he was afraid this would be used against him. ° t Council's address concluded just be- '' fore one o'clock, when the Court adjourned. '• On lYsuiiiiig, His Honor summed up. He remark- . Ed that this case had occupied a very e long lime, but no longer than was war- „ ranted by its importance to the prisone er and to the public. It was not dis--1 putcd that n scries of dastardly crimes „ had been committed against Mr Poole, s and the only question was whether the a perpetration of these crimes had been e sufficiently traced to the prisoner. . There was not sufficient evidence to establish prisoner's connection with the first three fires, unless they were satis- '• lied that he had lighted the later lires, " and was, consequently, the perpetrator' 1 of the whole. His Honor agreed with ' the contention of counsel for the prisoner that all the fires had been perpotrated by cue and the same person. \ Coming to the fourth fire, Ihere was !j evidence that connected accused with pie crime, und called for an answer. This was the lire at the ensilage room. ;t His Honor drew the jury's attention to i- the fact that Mr Poole, senior, was u ou iuriinate terms with the accused, •- Ou this occasion, Mr Poole traced foots marks and hoof-marks that corresd ponded with peculiarities of prisoner's 1 wear and the peculiar shoeing of his il horse, respectively. It was a strong u fact that these unmistakable imprints s had been worn to by two witnesses, and partly borne out by the evidence- of j Constable .Davcy. Mrs McL'Dowie j had sworn that her husband had not worn a boot and slipper at this dale. ,' JNow Mr Poole had been a very careful ' e witness, who, His Honor thought, would f not wilfully concoct false evidence against his neighbour. The facts re- ' maiued that on the Ist and Uth December, those footprints were found, and [ Mr Poole had the strongest possible reason for endeavoring to ascertain what the accused wore on his feet at " that time. Either accused was wearing a boot and a slipper, or Poole was stating what was false, and this His Honor absolutely declined to believe. The " fifth fire was a heinous attempt to burn down Mr Poole's house, and the pri--1 souer had been connected with it by the discovery of a slipper imprint on a | flowerbed dose by the place where - the attempt was made, and (he j similar imprints at the gates, the cvi- _ deuce of the Pooles in this instance ' being supported by the constable. He agreed with Mr Welsh that if was nl- * most inconceivable that a man should : go about perpetrating crime in this - fashion, but, unfortunately, il was often > the case. There was no suggestion of motive, but the whole series of crimes * seemed to be rather the work of a ; mouoiuaiiiac, spurred on by some uu- ! controllable impulse, Il was impos- , sible for the jury to believe these ' slipper and boot prints and the marks * of the horse were not there, unless they i believed that all the wilncsess for the ! prosecution, including Constable' Davy. ; had concocted this tale against the accused. These same marks were - seen after the sixih lire, but in the : seventh lire, on 22nd January, they did not come into the matter at all. Now, ; they were concerned mostly with the i evidence as to tl(e movements of the prisoner, anil the events of the night, i Mr Poole (who was a good deal i smarter detective than his constable) saw the lire just after ignition, but received no signal from the police, whom he believed to be concealed near the stack. He had seen a man silhoettcd in the glare, and from his appearance, general air, and slouching, shuffling gait, believed , that man was Mcl/Dowic, His Honor J said there was justice in I he coulen- ' lion that a goodly distance separated c the two men, but thought that in a J bright light this recognition was quite ! possible. The evidence up to this point ' called for a substantial defence, and it 5 had been endeavoured to set up an alibi—to piii,vi! (fiat accused was not v there, that lie was soinov\ luii'u .else ; ' that he was home in bed, His Honor !. agreed with a suggestion made thai the investigation of the crimp might have u been earned out in a more skilful manuer. For instance, had Hie constable * been a city olliccr, he would doubtless have left his son concealed to watch the stack instead of bringing everyone Out to the road. Mr Poole's action in I putting hit sous " lo hold the road " d was a very sensible one. Daycy l>ad h seen Mr Poolo from the eqw paddock t (tyhen the former should have been in t the hay paddock), then saw a glare, il .Mid uittde oS down tie road, He l

couldn't—o,v iliJn't— get over the •. barbed wive gale, probably not seeing i the force of tearing his clothes or his ' hands. Tt was nonsense, His J[onor continued, for anyone to say that i climbing that gate was an easy matter, though, of course, any person of ordinary agility could negotiate the post ut the side of the gateway. The evidence was reviewed to the time of waking . the McL'Dowie boys. The prisoner's ease was that at that time he was in bed. This seemed impossible, for from that time to the time accused was met in the paddock there was a knot of several persons about the road. He could not have missed seeing them, even if they had missed him, and live witnesses swore that he could not cross the road unobserved by them. Further, during the whole of that time, it was sworn, Mostyn Poole was watching prisoner's front gate, through which lie said ho had passed on his way to the burning stack. Willie McL'Dowie's evidence supported the statement that accused must have been seen crossing the road had anyone been looking that way, whilst they had evidence that the Pooles were sent there specially to watch the road. Unless accused went down whilst all these paople were in the road it was plain he could not have left his place at tho tunc he had swore to, and which his family had endeavoured to prove. They must further remember that the people in the road were excited and talking in loud tones, so accused must have scon or heard them if ho crossed the road as stated by him in evidence —otherwise it was a remarkable circumstance. The probabilities were all in favour of tho story of the witnesses for the prosecution. Accused had denied advising the Pooles to insure the stacks. Against this there was Mostyn Poole's evidence. Either this was u concoction, or accused had told a lie. Accused had denied being on Poole's property late at night; against this was the evidence of Mr Poole and his son Mostyn, who gave instances. Accused had told the detective that ho had been awakened by the glare of the lire, and now swore that the noise made by the Pooles in calling his sous had aroused him. The defence set up was in the nature of an alibi, and the evidences of the witnesses for the defence must be closely examined. Of course, he could not help sympathising with tho family of accused, with his wife and children, but the jury must not let their sympathies get the better of their judgment. The accused's wife had made a statement to Detective-Ser-geant Siddells four days after the lire, and now contradicted it. That statement to the detective had to bo disposed of before it could be possible to prove the prisoner's case. She had said her husband used the words " There is no one at the fire," indicating the accused had gone to the burning stack. That had been contradicted now, and Mrs McL'Dowie had also taken upon herself to swear that the statement was not complete, that it was a fabrication, and that the detective, an experienced officer, had not asked for full details, when he had gone out specially to obtain all evidence that could be elicited. It was difficult to attach credence to that evidence. Again, they found the daughter's evidence, given to displace the statement made by the mother to the detective, was contrary to that given in the lower Court. The story told there had to be departed from in order to support the prisoner's defence, and it had liecu departed from accordingly. She nonsaid she heard her father ask: " Where are the boys?" Previously she swore she heard nothing of the kind. This was not a trilling detail, but evidence brought to support the prisoner's defence. Ida MeL'Dowc's evidence was just as remarkable for its inconsistency with her statements previously. She had stated before that she did not hear her fatlier return to the house; . now she remembered hearing him return, and could tell that he asked, "Where arc the boys? I cannot see them." These girls might well believe what they had said in evidence, for they had talked the matter over so continually and often, that it might well be that they had come to believe what they said in the box, but it was in direct conflict with the statements made to the detective when the matters were fresh in the witnesses' minds, and when no one could sec the exact imi portance of tho admissions made by . the mother. It was rather remarkable that Mrs Alford was the only person who had seen the accused in the diu- : ing-room. If tho jury believed she had seeu him there, then there was an , end to the prosecution so far as 1 January 22nd was concerned. It was hard to reconcile this with the statements of other witnesses for the defence, that the accused camo into the sitting room from his bedroom, and went right out on to the verandah. . His Honor again referred to tho extreme improbability of the prisoner crossing the road without seeing the other men, or being seen by them. It was also strange that he should, as he said, go outside instead of through the house to reach his sons' room j he was ten minutes doing this, according to his own evidence, and the distance was only a few yards. Why had not Mr Alford, who had shared the boys' room that night, been called to prove accused had visited the room as he stated? Concluding, His Honor said that the jury had to weigh the contradictory statements made by the prisoner's wife, about tho last lire, and to consider the hoofmarks and slippermarks in regard to the other charges. He pointed out that it was of the ut. most importance that the administration of criminal justice must be fair and impartial. It was important that in this fair colony of ours such a series of crimes as these must not be perpetrated against any individual without the crimes going unpunished. If there was any reasonable doubt that the accused did commit the crime, the jury would acquit, but if they were satisfied that there was no reasonable doubt as to his guilt, they must, at whatever cost to themselves—and it must lie at cost to themselves, and must he painful— it was their duty to bring in a verdict of guilty. The jury retired at :1.11p.m. At 4.15 p.m. the foreman of the jury returned to court and slated that the jury wished to peruse the depositions uf Duncan ami Mostyn Poole. His Honor intimated that it was quite an irregular proceeding, and he could only grant the request if desired to do so by both counsel.

Mr Welsh formally made the request, and Mr Kerr offering no objection, His Honor made the order, The jury returned to court at N. 7 p.m. In answer to the usual question, the foreimm staled that they were unable to agree ou a verdict, nor did he think there was any chance of their coining to an agreement. His Honor then discharged the jury.

The Crown Prosecutor applied formally for a re-trial, which was fixed for next Court scssjou, Bail was fixed in accused's own recognisance or £ 2OO, and two sureties of £IOO each. DIVORCE COURT. TAI'.NTOX V. TAIWTOX. Mr Quilliam appeared in support of a motion fuv djyectious as to sen-ice of Petition and Summons, The petition prayed for a dissolution of the marriage on the ground of desertion for live years and upwards. The ulliduvils lilcil showed tb.nl. the respondent was in England. His Honor ordered personal service on the respondent in England, appearance to be entered within 00 days, and the (rial to tako place at the 'fjrsl sitting at New Plymouth a f|e|> tbl> cxpiyalion of Jo Jays from date of service, The ijiiestiou of costs was reserved. ALLEGED ÜBEACU OF COVE NANT. lUiihi Hakaraia and another sued Ernest Uornsby Gibbous, for £250 damages for alleged breach of certain leasing conditions. Messrs T. S. and C. H. \\ r eslou i(.p|M.-arc4 for (V plaintiffs,'and Mv W. L, Eitzkcrbenl for defendant, who paid £'2o into Court. 1 A jury c{ four wins empauoUed, cqu-

sisting of Messrs Wm. Griffiths (foreman;. Geo. Jleslop, Fred Doughty and Wm. Itobcrts. Mr T. S. Weston, in opening the case for the plaintiffs, slated in October 181)1 Harawira Mokcua possessed Sections 31 and 30 Vrenin. The sections were of fern and bush, but mostjj; fern. On October 23rd of- same year Harawira agreed to lease to defendant the two parcels of hind, each containing 125 acres, for a term of lilt years, at the yearly rental of Is (id per acre. The lessor died in 1899. and the Native Ti'iad Court made a succession order in respecljof Section 31 (only, in favor of the plaintiffs and the minors in given proportions. Although tl:e lease comprised the two sections, the present case dealt only with Section 31, seeing that the plaintiffs had no interest in Section 30. Tho lease imposed fenciug and grassing conditions, but at the expiration of the lease in Juue last, most of the section, as was not then in standing bush, was not in good permanent pasture. Plaintiffs alleged that under the covenant defendant was bound to leave a substantial fence in good repair on the several boundaries of oach of tho Sections 34 and 36. It was but an accident that tho two sec tions adjoined. Plaintiff would be satisfied if allowed £7O for ropairs to the fence now standing and a six wire fence around the unfenced portion of the boundaries of the Section 34, similar to the fences erected during tho 'easo for his own use. With regard to pasture, evidence would be called to show the character of the soil on the section, that there were certainly no more than 20 acres of standing bush on tho section. It was admitted that 10 acres was in good grass, but upon 95 acres there was practically no real pasture. The claim was for grassing i) 5 acres at 395, £lB5, £7O for new fencing, and £5 for repairs. The plaintiffs would not accept the amount paid into Court. John Skinner, surveyor, gave evidence respecting bouudary fences and conditions of pastures. Johu Foreman, jur., farmer at Tikorangi, gave similar evidence. Samuel Kuuckey, farmer at Tikoraugi, aud Geo. Kiddell, New Plymouth, were also called by plaintiffs, the examination being conducted to show that the fence and pastures wqro not in the ropair required by the covenant.

The Court adjourned till 8 p.m. Mr Fitzherbert for the defence, said it would be shown that the land was some of the poorest in the Urenui district. At the lime defendant took possession it was known as " waste land " covered in fern and tutu. The country was rising in nature, and much broken by gullies, so that there was not a large proportion plougliable. The defendant had done all that was possible to fulfil the conditions. The grass referred to as " cooch " ' was not the weed variety, put a permanent English grass that was most suitable to the nature of the country. It was universal in Taranaki, and on some of the best farms in Taranaki it was a nutritious permanent grass. In reality the stock carrying capacity of the land had increased four times, as compared with its former state. The whole farm was thoroughly stock proof. Defendant gave evidence of the improvements he had put on the land.

Mr Fitzherbert called Martin Greenwood, Leonard Hoskiu, aud Captain Wilson, who deposed that Hie pasture was as good as could be expected ou such poor land. At 10.30 p.m. the Court aljcirncd till 10 a.m. this morning.