SUPREME COURT.

Taranaki Daily News, 4 February 1919, Page 6

SUPREME COURT.

-OPENING OF NEW PLYMOUTH : SESSIONS- '•

(Before His Honor iMr Justice - Chapman.)

Tiie New Plymouth sessions of the Supreme Court were opened .yesterday' morning before his Honor Mr Justice Chapman. The criminal calendar included two eases for retrial from the last sessions, (August)—that of James O'Donnell, for manslaughter and Samuel Edward Doyle, for theft, as well as a previously adjourned case against Albeit Charles Ogilvie for cattle-stealing. There was also a charge against Charles Archer Bryant of alleged assauljf, causing actual bodily harm, and one of forgery against Maui Qnehuia,

I THE GRAND JURY. The following comprised the Grand - Jury:—Messrs & O. Ellis, A- Goldwaterj C- Carter, J. W. Abbott, W. C. Burrows, J. Patoo, T. C. List, It. F. Cornwall, C. E, Bellringer, E. Dingle, J- Corrigal, F. S. Johns, E. P. Webster, F. Watson, J. B. Hill, A. W. Webster, A. F. Mollison.c W. Jenkinson, J. McNeill, P. Jackson, F. Mc-ssenger, W. H. Broome, Penman. Mr Bellringer, was chosen 1 foremanBIS HONOR'S CHARGE. ] In hia charge totlie Grand Jury, v hij Honor said he was pleased to state that their duties would be very light- There were -only two cases to be considered, and their time would not be occupied. very long. The first case was one of assault, in which one man had struck another in- the face with a bottle, causing him actual 'bodily harm. When the man was spoken to about {he matter, he denied knowing anything about it. His Honor said, however, that if a mas got ,drunk and then caused injury to another person, he was fully responsible. He did not think the case would present anv difficulties to the jury, who were not to try the case but to determine if there was a case to go "before a petty jury. The other case was that of a Maori charged with forgery, about which his Honor said he need say nothing. He congratulated the jury on beinw dismissed to their room at such an early hour. 'The juiv, after a short retirement, returned with true bills in the cases of oharle3 Archer Bryant, assault, causing actual bodily harm, and Maui Onekura, .forgery. The jury were then thanked for their services by his Honor, and discharged.

ALLEGED MANSLAUGHTER. O'DONNELL AGAIN BEFORE THE COURT. The case of James O'Donnell, farmer. Inaha, charged with manslaughter, was taken first. This case was for re-trial, the jury at the August session having disagreed. Accused was charged that he did, on July 24, 1918, at Hawera, commit the crime of manslaughter, "by unlawfully killing one, Tliom Henry Morgan, by knocking him down with a motor car.

Mr H. R. Billing, Crown Presecutor, conducted the prosecution jand Sir John Findlay, K.C., Wellington (with him Mr 0. O'Dea, Hawern) appeared to defend

The following jury was empanelled: Messrs F. Stevens, J. E. Nixon, E. 0. Skelton, C. H. Sullivan, W. S. Knuckey, J C. Bell, A. B. Edgecombe, L.R Little. H. R. Bloxham, Thos. French, L. L. Humphreys, and L. Deighton. Mr Ni>:on was chosen foreman.

Mr Billing, in opening the ease, stated tha't the jury would not be troubled with any conflicting issues- There was simply one charge against the prisoner, and counsel pointed out the difference between murder and manslaughter. He could not be charged with the former, as there had been no intent in the ca.se, but the Crown contended that" accused Ind been so negligent in the driving of lii-.i motor car along a road near Hawera as to knock down and cause the death of an old man named Thom Henry Morgan. Counsel then recited the facts of the case as previously related, which were to the effect that on the evening of the day in question, deceased and his grandson, Huia Smith, aged about 14 veurs, had been to milk some cows in a paddock on the Main South road, between Hawera and Manaia. On returning to their house they came along the left hand side of the road coming in the direction of Hawera. The boy rode a bicycle, and the old man pulled a go cart with the, milk in it. While travelling along the side of the road a motor car was seen approaching, said to be zig-zagging about the road. The car, which was driven by accuild, knocked deecased down and he died from the in-, juries received. The facts that Morgan was killed and that accused drove the motor car were not disputed. What the jury had to decide was whether accused, in driving his car along the road at that time, exercised reasonable care.

Huia George Shepherd Smith gave evidence, in the course of which he stated that he was about 130 yards away from his grandfather when the accident happened, and also that his father was pulling a go-cart behind him.-* In cross-examination by Sir John Findlay, witness was asked why he was so sure now that his grandfather was pulling the cart, when previously he had not been able to say, but he could not account for the change in his view; neither could he say why the distance between him and his grandfather, at the time of the accident, was now stated to lie 130 yards, whereas in his previous evidence, both in the lower and Supreme Courts, he had stated the distance as 11>0 yards. The matter of whether the oar swerved of! the tarred portion of the road or not, which was prosecuted by defendant's counsel somewhat persistently, proved a difficult passage. Witness stated the car was zig-zagging on the tarred portion of the road. He could not say whether it left the tarred part of the road —it seemed to go on the macadam just when ii struck his grandfather He saw his grandfather a second or two before the accident in the light of the motor-car lamp. He had been able to see him before the ear lights shone on him. It was about a quarter to six when the accident happened. Evidence was given by Dr. H. R. Sloan, Hawera, as to the nature of the injuries secured by deceased, and expressed the opinion that the body must have been dragged along by the car or the car must have dragged itself over the body No cross-examination was made. Constable Henry Nuttall also gave evidence, putting in locality plans and giving measurements showing the distances between where the milk was spilt on the road and where deceased's body was found, and also the width of tarred road, macadam, and track at the side. It was suggested in cross-examination gre&tmt ucouiit of milk wa#

spilt on the asphalt portion of the road the collision must have taken place on the asphalt, in consequence of deceased being in the act of crossing the road to his right side. The witness contended that the milk was just as likely to have, been spilled out over the asphalt if the car were on an angle and had struck the go-cart as it was bei ' -j pushed along: the side of the road. Evidence as to finding the body and the position of the go-cart and body was also given by Richard Canty, farmer, Denbigh Road, and Thomas Hollis,, builder, South Road. James F. Murray, farmer, Maijawhatu Road, who was driving cattle along the; road on the evening in question, and' Frederick Purser, who was also on the road, gave evidence to the effect that several cars passed along the road about that time. The last car that paseed. before they came on the scene of the accident had only one light on and was travelling very fast. The latter witness recognised the car as ODonnell's, but be could not say who was drivings tlie' car. Win. Henry Stevens, motor engineer, New Plymouth, employed by Newton King, gave evidence as to hairing given accused's car a trial since the accident. He got 2$ miles per hour out of it. CASE- FOR" TELE -DEFENCE. Sir -John Fintßay/ K.C., in opening the ! defence, addressed tie court and urged i ;ithe jury to remember the seriousness <rf the charge against tie prisoner, whose liberty they were trying. It was one of the most serious offences in law, and they had to consider whether he was guilty of such an offence or whether what happened was the result of misadventure or neglect, or arose from a haibit of the unfortunate old man. The accused wjus a young man. whose ability to drive a. motor car had hot been once questioned, and as to whose sobriety there had been no suspicion raised. It was a perfectly straight piece of road, and would be one of the easiest roads in the district on which to drive. According to the evidence of the boy Smith it was suggested that accused had driven so recklessly as to swerve from sße to side of the road and had knocked this old man down and caused his death. He suggested that the unfortunate old man's own negligence was contributory to the accident. Sir John invited the jury to ignore the boy's evidence on account of the obstinate reticence he showed in answering questions during cross-examin-ation, which suggested that he had been coached in his story, and was unwilling to answer any questions on which he had not been coached, for fear of damaging his case. He also drew attention to vaccilating evidence of the Crown in regard to whether the motor car actually left the tarred portion of the roadway. If the jury believed that the car did not leave the tarred part of the road then the Crown's case must fail. Counsel then proceeded to explain to the jury his theory that the old man was crossing the road to his proper side at the time the car struck him.

Evidence was given by i»r. E. F. Fookes, New Plymouth, as to the general state of accused's health. He stated he had examined accused and found him to be below the average. His heart was decidedly below normal.

Accused gave evidence similar to that given at the previous hearing. Cross-examined by Mr Billing, accused stated he left home for Hawera after 11 o'clock on the day of the accident. He had a whisky and a pony shandy before lunch. He had lunch at the club and had another pony shandy afterwards. He then went to the sale and returned to Hawera about half-past three. He had two more pony shandies. He then went out in his car to see a friend who was ill On returning to town he had another drink —a lime juice and soda. On the journey home he lit his lamps at about half-past five, at about a mile from where the accident happened. The number of drinks he had on the day in question was about the average when spending a day in town. In managing his farm accused did some milking and ploughing The work he did depended on the state of his health. He had a good deal of running about in his car. He went to Hawera about once a week. It was the newspaper report of the accident, which accused read the following morning, that caused him to believe that it was his car that had caused the accident. Accused was asked some questions as to the damage sustained by his car and as to his discovery of what had actually happened to it To his Honor witness said that when he found that the lamp brioket v.-ns bent he did not attach any importance to it. He did not think it had anything to do with the occasion when he thought the mudguard of his ear had just sheered the man off.

To Sir John Findlay: Ho did not associate the bent mudguard with the occurrence on the South Road on the previous evening. Lamp brackets sometimes got bent without the knowledge of the driver at the time.

Robert Linton, farm manager, Hawera, stated that there was no trace of drink on accused on the day of the accident when he saw him, a short time before the accident occurred. This closed the case for the defence and the Court adjourned until !) a.m. to-day