ALLEGED MANSLAUGHTER.

Taranaki Daily News, 21 August 1918, Page 3

ALLEGED MANSLAUGHTER.

CHARGE AGAINST AN IXAHA FARMER,

JURY DISAGREES. At the Supreme Court yesterday before his Honor the Chief Justice, Sir Robert Stout, James O'Donriell, farmer, residing at Inalia, appeared on a charge that ou July 24, at Hawera, he did commit the crime of manslaughter by unlawfully killing one T. Henry Morgan, by knocking him down with a motor car.

Mr H. K. Billing appeared to prosecute and Sir John Findlay, K.C. (with hun Mr. P. O'Dea) represented the reused. The following jury was empanelled:— .Messrs J. A. Boswell, G. W. King, T. Hransarovc, L. V, r . Richards, (>. Lilian, H. Inch, D. Murphy, F. A. Coleman, A. If Maxwell, A. W. Lock, F. JR. Morris, and Tuffery. Mr. Boswell was chosen foreman.

THE CROWN'S CASE. The Crown Prosecutor, in outlining the ease, called the attention of the jury to the difference between a charge of murder and manslaughter. The first, he said, was a matter of criminal intent, the other criminal negligence. In the cast u question it was alleged that accused drove so recklessly and negligently that he ran into the deceased—an old man of 73 years, named Tom Henry Morgan—who died from (lie injuries received. He then briefly placed the facts of the case before the Court and proceeded to call evidence.

A YOUTHFUL WITNESS. Huia George Shepherd Smith, sworn, said he was 14 years old and lived with his grandparents at Hawera. Hi, graiidiathcr's name was Thomas Ilenry Morgan, He remembered the evening of July 24, when he went witii his grandfather to Buchanan's paddocks to milk; the paddocks were on the left-Land side of the South Road, going towards Manaia. After milking they returned home. AVitness had a bicycle and his grandfather had a pram which had been made into a milk cart.

To his Honor: It would be at about a quarter to six. Continuing witness said his "randfather walked on the left-hand side of the road coming towards Hawera. Witness rode on in front. Tt was just getting dark as they left the paddock. The chain slipped ofT witness' hike, and when he trot off lie looked back and saw his grandfather about 150 yards bcmna, still on the left-hand side of the road. He saw a ear coming along at about Argyle street, which was further away from him than his grandfather ,/as. It was going in the opposite directum to tiiat of witness. The car zigzagged about on the tarred part of the road. It had two headlights, which showed fairly bright. Witness was travelling along on the middle of the sandy part of the road.

At this stage some photographs of the locality were put in, ,-howing tnc munition of some of those concerned in the accident.

Continuing, his evidence, witness said the car passed him, and he looked back and saw the lights of the car shining on his grandfather. A few seconds later he heard a crash. The car continued on its way towards Manaia, travelling at about 20 miles an hour. It was near the side of the road oil which his grandfather was walking, and it swerved towards him. After the accident the car swerved to the other side of the road. The go-cart was on the same side of the road that his grandfather was on. ne did not know whether he was pulling or pushing the cart at that time. Witness ran back when lie heard the crash. Th? milk.cart was smashed—the handles being broken off and the wheels bent. The milk that had been in the can in the cart was nearly all spilt. The cart was standing on its wheels. He could not say whether the buckled wheels were turned towards the centre of (he road or not. His grandfather was lying on the right-hand side of the road, j going towards Manaia, about ten or fif- | teen yards from the go-cart further in [the direction of Manaia.

To his Honor: Witness spoke to his grandfather, but he did not speak, any more.

Continuing, he. s.ilrl the body was lying on its buck with feet towards Alnnain. He went, and told Mr Canty. Jl's grandfather was 73, but could get about quite easily. No other vehicle passed alon? the road at the time. His grandfather had been going along the road to mi'k the c-ows for aliout 2| vcars, and witness wont with him. He began to milk about five or six years a;* o - On the day of the accident tliey had not had tea before going to milk.

CROSS-EXAMINATION. Cross-examined by Sir -John Findlay, witness paid he could not say how lar the motor car was away when ho first saw it. In reply to a question as to whether he knew that his grandmother was bringing an action against accused for damages, he said he did not know, but upon pressure, he admitted having ''heard n little." Questioned as to whether lie had talked over his evidence with anyone witness said he "remembered what be had seen." The time of the accident was about a quarter to sLv. He did not know whether it was moonlight at the time. I-Tc did not notice. Counsel questioned witness somewhat closely to ascertain how he estimated his distances in order to discover wnat could be seen over the distances stated at the time of the accident. His Honor pointed out that distances could be verified by maps and plans, which were very much better than estimates.

Continuing witness said the car tame off the tar part of Die road, an.j, after it struck his giandfather, on to the metal pari 01 the road. When tlio accident happened he could not see hi* Grandfather for the motor car lie could not swear tliat the -wheels of the car went n!T the tar part of the road.

To his Honor: The car had no tail light. Tie-examined by Mr Billing, willies; ■ niil it would not be easy to piKh a {ro"irt alone the sandy part of the road. r c saw the police measuring the loao iter the accident.

lUEDJOAL TESTIMONY. Hugh Uodger Sloan, medical pvaciii'ler, at Ilawera. gave evidence as to ■leivinj; a call 011 the evening of July 1, to the South Road, where lie saw ie body of deceased lying near the •>rner of Waihi road. lie gave a deailed description of the wounds revived by deceased and said he died liere he reached his home. Tne .njuries were such as might have been caused by

a motor car striking or running over deceased. Hia clothes were dirty ana very dishevelled. His wounds showed lie had had a very severe smash —it was not just a touch-and-go. From the injuries to the head lie would su.y either that the body had been dragged along on the road, or that the ear had dragged over him while he lay on the hard road.

To Sir John Findlay: He could not say whether the side of the ear struck deceased, or in what position he would have been found on the road if it had.

PLAN'S AMD MEA-SUItRMEXTS. Con stable Xnttall, Hawera, said he prepared locality plans (■which wore put in). He arrived al the scene of the accident at about G. 20 p.m. The place was about 103 yards from the corner of the Waihi Koad, on tiie CVlanaia Road. He gave all t!ie measurements of tho road at the paco where the accident took plate. There were lift. of tarred road, frit, of macadam, and 7ft. of sandy road, the rest was gras3. His detailed examination and measurements were made ■ho morning after the accident. He made inquiries as ten the driver of the ear, and endeavored to find his whereabouts that night. The next day accused, with Mr- CTDea, came to the police station and gave himself up. In a statement, which accused signed, he said he was travelling along the South Roti-J toward? Manaia the previous evening. FTe had two lights on his car, and was going aVout 10 miles an hour. At tho place where tho accident happened he saw an abject on the roadside, which he thought wits a disabled motor j bike. Al.nost at the. same time a man walked i:>t,o the ray of light cast 'by his lamps Fl'o swerved to avoid him. He felt r,o l>ump, and thought the mudguard musrt have cheered the man oIT. When he got lior.ie he found tho car 'had received some flight damage, and there were also some splashes of milk on the side of the car. He got a. great shock when he snw in the paw next morning that nil "VI man had Veen killed. He gave Vis s+itemoTil volnntarilv and left himself in M'e hands of the pftli"e. Continuing his evidence, the eonslahle detailed tlie re'i:lt of Vi; evarn'nation of accused's ear To Sir John Pindlay: On the evenina of the ace'dent he made a casual expniination. and saw no marks of a motor ti-l-np] i n sand hr the macadam part; pf Pm one, and thst was an f-M one. There were plentv of mark; on M lfl 'nhere was nothing to in,iicnte +*int the Ht of deceased had been H'= Honor- Thnn the Vodv must have '■ -'-■ii throTTi I'V tV« motor ertr?

wilnp«<3 c aid the even'n" rf f|m Trn<! hnzv at nliont 90 minutes to <5. The moon was just ris-

■p'n'nT; •OflHv. farm n r. residing at Tlnn/7. rriyp pi-< .-l pti pp f n+ lyti pti ♦lie lint- iTifnrmxd lijm of flip qr">ir'pnt lie cent for assict-pTipp to the rela''vps r.f /lr--pnpri'7 alco r''.mTr.uriirn with the n.-vlmn nt,,l the doctor. He noi'O'l flip l'n'lr pf dccpasprl on tfl the Ri.reft-lier. stnvpil Ihprp till it was removed hv the amlnilnnfp. Tt was p moenli7 I, t pvcnm? The time was about fI"P Tllim'tPC fo fi.

Tbnrnos r TJnlli?, builder, residing at "Hnsi'l. Hawera. said Mr. Oantr cpnf frvr Jiini ?nd lie went to the scenp of flip ncpidr-rt. which wns ibout IAO from the mmcr of the YTni V T!on!. He was the fir~'-. to reach thn -T">i". TV.'?r qr,-] was lviricr about 10 nr 1." Terr's from the a=phalt. T>eceaser] did not HP was bippdincr ;irofu^elr nnd mar'e onlv a slisrht movement of the linq.

c, ' ,r T;,,i n Findl.iv: Tt was dark on iK-> <*h]o of the road where the body wae he had to peer about before 5 'P found fh l bodv.

To thp Tivl Tn : Tiip centre of flip -rcvrvfT was fnirlv li<*t flip srtmde of the find?* renehqirr to abort t.l>o nf the asphalt. Tt seemed to liim that tlrcw vere milk snln=lip«i on the anil mnendnm pnrts of the roar]. To Ttillinsr: Tlip onlv mark <>f n motor tli.it lip saw was that, made by the motor ambulance.

A CAR WTTH ONE. LIGHT. T r>mes F. Murrav, farmer,, Aranawhnt.il Road, said hj« reached tlip scene of tlip neeidpnt shortly after the occurrence. TTo was driving a mob of rattle nlonp tlip road that evening. Severn 1 motor ears na«°d him. The la?f, ear he passed before reachin? thp <vene of flip accident was tniTplliii!' at about 10 miles an hour. Tf. had onlv one lisfht. and pawd him and tlip enttle he was driving faster than hp eared about

Frederick . Orril T>ur<=pr, motor mechanic. TTawcra said that on the ovenin* of the accident he was on the road to Manaia, abont five miles awav. mending a motor cvcle. Several cars passed him. and he noticed one had onlv one li-rht. on thp left, flip V!ls travollins vpw fn =t. Tt was the «>r belonrrinrr to Ab\ O'TTonnM'. of Tnahn. TTe bad known the enr and was ablp to rpcognise it. ft saw at the lower court was tlio car he caw on the nisrlit. of the accident. Witness would not drive at the sppprl the car was joins. There was no one but the driver in the car at the time, hut hp could not. swenr who the driver was. To .Sir .Tolln Find-lav: When the car passed witness it was !7,alliprin<* momentum to go up a hill that it was apnroachinsr.

Tn replr to bis TTonor. witness could not =nr in whet distance n cnr travpll'l'- from 20 to 2"> milo= iul i, olir cmild ''p pulled up. providing all it-. b r al-ps wpvp in proper order. 'William Henry Stovnis. motor mechanic, \<>w Flvmouth. said hp m-vlc ;i trial o' ihp oar concerned in tlip ca=e. am'. 011 the flat lip couhl not get a cpped of more 111 nti 25 miles per hour TTe thought J!';!!: was on account of ft cracked «Ippv<> valve Tltp par miorlit he taken nut arrain and perhaps would do •W ; T'■ iI -ill on flip position of fhp sleeve. The foot brake was no ,'jnod.

TV. h-c TTr.iiA)- ; 77 flip bra 1.-po were all right. the car. travelling at miles an 'ipuv, could be brought lip in three or four lermtlis. To Sir -Foh 11 Findlay: The car was an oh! oup. THE CASK FOB THE DKFR^OE, Sir .lohu Findlay. in outlining the course of thp defence proposed, said at the outset that certain facts were admitted Hp considered ilie evidence of the boy Shepherd somewhat mratisfactorv. lip took considerable pains, to point out what lie "onsidered the responsibilities of the parties immediately coin-ei ii -d in the accident. The driver of the car was an experienced and careful driver. Tic ha-! lights 011 his car, mid was not driving at 1 speed that was excessive under the circumstances. He kept to the aspbfTlt part of the road, and the evidence showed that his car had not, gone on to the »ide of the road. The (<4ier person—the o'd man, whosb death ? (5 most regrett&bia aecurrenc?—>

should have seen the lights on the car. ito had no lights ou his milk cart, but if he had ikept as far down to the side of the road as the boy had done there would have been no accident, Hia theory was tlir.t the man had found himself on iris wrong side arid attempted to cross over, and the cur had caught him, ou account of his having misjudged the distance between the car and himself. That was not unlikely for an old man of 73. Ho did not for one moment uphold the action of accused in driving on subsequent to the accident. .T'ut the jury were not to Ibe concerned with what happened a.ftT the accident, Tint what happened just before and immediately at the time of the aecident He intimated that medical evidence would he called to show that accused suffered from a weak heart and impaired nerves, a condition which would account fo* his dazed state immediately after the collision with deceased.

THE ACCUSED'S EVIDENCE, •Tames Patrick Joseph O'Donnell, farmer, Inaha, said he was 32 years of a ,r e. He remembered July 24 last. He was at Gocdson's sale at Hawora, and boimht some cattle. He motored to Han-era, and, on returning, he lit his lamps at the Lake Road about !5.30 p.m. Witness had been driving a motor-car pretty constantly for about eight years. He had never had any serious accident,. His car was a Daimler, and lie had had it about eight years. He drove that night on the centre of the tarred part of the road, which measured lift wide. The car was fift Gin wide. He did not -zigzag his ear. He might have swerved to avoid the ruts in the road. The light was getting bad at the time. He was going at about 10 miles an hour. Lights on cars showed wider at some distance ahead than they did just ahead of the lamps.

His Honor: If that is so, then drivershould drive slower so as not to risk running into anything. Witness continuing, said that near Budge's corner he saw a dark object on the side of the road. So far as ho could say, it was stationary. He could not say wlu't it was. He then saw a man come across the lights of the car on to the proper side of "the roatl. Witness swerved to try and avoid striking him. lie thought at the time that the mudguard had sheered the man off. He heard no crash.

To his Honor: He could not say whether one of his lights was put out. The shock of the man coming 111 iront of him dazed him for the time.

Continuing, he said ,hp had realised since that he should have stopped. U lien he found that a man had been silled, lie went straight to the police and gave himself up. He had been medically examined by the military and classed D.

To Mr. Billing: He had no leave pass from the military authorities. It was two or three years since lie was examined. He had his registration certificate, but not then in his possession. He was classed D at Palmerston North. On the day of the accident lie arrived in Hawera about 11 a.m. and then went to the club. He was also some time at the garage and at some auctioneers' on business. He went into the Central Uotel to change a cheque. He had one drink—a whisky. There was no one ivith him. He also had a couple of "pony shandies" at the Club, with Mr. Goodson. He had no drinks with auctioneers after doing his business with them. He walked from the Club to the saleyards, and was there till about halfpast three. He bought some cattle, and made arrangements for them to lie taken home. He went up town with a friend and had a drink at Uonnley's Hotel, and then another with a trie'nd who had just come in by the coach. lie went to the garage about four o'clock, and then out towards Normai\by to see a friend. He stayed with his friend about three-quarters of an hour, but had no drinks. Ho returned to uiwii, and pulled up opposite the Central Hotel to get a parcel. He met a friend and went in and had a lime-juice and soaa. lie took this friend to his home, and then went, on home. He did not admit being under the influence of liquor. He had never been under the influence of drink.

His Honor: That depends upon what you understand by being under (he Influence.

To Mr. Billing: The road towards the corner where the accident happened was a good road for travelling on. He remembered swerving the car to avoid hollows in the road. At night-time the jights showed all the little depressions in the road. There were no deep ruts on that part of the road to be avoided, lie got it very serious shock when deceased came out of the darkness into the light of his lamps. Ho was dazed, and remembered nothing till he saw the tollgate lights. That would be about four miles.

To his Honor: He struck the'msn with tiie right-hand side of the ear. Continuing, he said when lie tlrst saw the dark object on tlie side of the road in front, of him it wijs three or four chains away. He did not take mueli notice, as the road was clear for witness. The object appeared stationary. When lie fin;l saw the man he would be seven or eight yards in front of the ear. He was crossing, at an angle, to Ilia proper side of the road. He made no eiTort to put on the brakes of his car, but swerved to avoid the man. He was walking pretty fust. Witness did not see anything of the. go-cart. lie thought the front mudguard had brushed the man wide. Witn<*» glanced round, hut could see nothing. His memory (hen failed him. He had had shock's through meeting objects nnexpectedlv, but had never been so dazed before. He diil not; remember passing any cattle on the road.

Questioned as to the condition of thp car. witness paid lip examined it, when hp sol homo, and the right bracket wns bent- back about and the glass of the lamp broken. Continuing, witness said he did not see the paper the next morning till about 10 o'clock. Hp did not go and get iho paper parly 1o sec what was sni' about the accident. The ordeal of appearing in court had been a strain 011 his nerves, but it hud not, dazed him. His memory was quite clear. Pie went in to Haw-era voluntarily and pave himself up. No one advised him to. There were a few spots of milk on his gloves and on the car.

He-examined by Sir John Findlay, witness said it was evident from the angle at: which deceased crossed the road tn.it. lie was crossing from his wrong side over to his right.

MEDICAL TESTIMONY. Dr. E. F. Fookes, ?vew Plymouth, said he bad examined accused, and described him as very much below the average, and really a weedy man. His heart had a very feeble muscular wall. A sudden stork of any description would cause

such a heart to become even more feeble and liable to syncope. To his Honor: If such a man came to him and asked him if he ought to drive a motor-car, lie would probably advise him not to.

DECEASED'S ROAD HABITS. James A. Hansen, engineer for the Waimate West County Council, said he knew deceased well. He was a difficult man to pass on the road, and very rarely observed the rules ol u'.e watt He had often seen him pushing the gocart, and he always had it in front of him. He never had a light «n it. His Honor: Did you ever see a light on a perambulator?

Andrew Leslie Young, baker, Manain, said he knew deceased oy sight He always took the centre of "the road. He never took any notice of anyens, or appeared to hear the horn of a car when sounded. He knew accused, ana considered him an exceptionally careful driver.

To Mr. Billing: He admitted having had a. collision with another car. His car at the time was stationary, standing on the right-hand side of the road, facing Hawera. The other car ran into his.

ACCUSED QUITE SOBER. Robert Linton, farm manager, said O'Donnell had. driven him home about half-past five in the evening on the day of the accident. He was perfectly saber, and was driving the car ijuice properly. To Mr. Billing: He had 'a. drink with accused, the latter only taking a soft drink, Accused looked as though Hie drink lie had faken had not affected him. Thomas C. Hobbs (re-called) said he considered Morgan very careful on the road. He had often heard hini say to the boy to be careful. He had said to witness that ''lie always gave them plenty of room."

THE SUMMINO UP, Counsel briefly addressed the jury, and iiis Honor summed up. He said the crime of manslaughter was that of neglect so as to cause the death of another. It wus not necessary to prove grots neglect. He quoted the law as to negligence, and said it was evident taut persons with a motor-car on the roads must see that reasonable care is exercised in order to avoid accidents. Even if anyone else on the road showed negligence, that was no excuse for a motorist knocking such a person down and killing him. The question for the jury to consider and decide was as to whether atwsea had taken reasonable care to avoid an accident. While the jury must be careful not to send an innocent man to gaol, they" must also see to it that the country's roads were not monopolised by motorists to the danger of other people. They must see if, in the present case, the law of the land was, properly and reasonably obeyed by accused. There was no dispute as to who drove the car, and it was clear that the car was being driven fast. When he saw an object on the side of the road, in front of him, which he could not properly distinguish, he did not take the precaution of going more slowly as he should at least have done. Later, he saw a man come before the lights of his car, but ho did not stop. He made no attempt to pull up his car, but swerved to avoid a collision. If he had instantly applied hig Drakes, according to the evidence, the car would have pulled up quickly, and it was possible the .collision would have been of little moment. The suggestion that the shock received by accused accounted for his not stoppihg at the time of the accident was not borne out by his statement to the police on the following morning, to whom he said nothing about having been dazed on the evening before, The question of accused's sobriety had also been raised. It was claimed that the drink he had taken had not affected him; it was known, however, any quantity of liquor taken by anyone, was liable to affect the person taking it. There was also the matter for them to consider as to the damage done to the car. Accused said that when he got home he switched off the lights of the car, which were all right, but the evidence was that everyone who saw him after the time of the accident declared there was only one light on the car. It was for the jury to decide which evidence was to be believed. JURY FAILS TO AGREE.

The jnrv rptired at 4.10 p.m., and returned at 8.20, having' failed to agree. A new trial was applied for tind fixed to take place at the December sessions of the Court.

Bail was allowed in the same sureties as previously fixed.