SUPREME COURT.

Taranaki Daily News, 5 February 1919, Page 6

SUPREME COURT.

. SESTERDAY'S PROCfEEW^GS,.' .. ■..,-..»✓.-.. (Before His Honcr Hir, Justice Chapman) The criminal sessions of the Supremo Court at New Plymouth continued yesterday before his 'Honor JVIr Justice Chapman. ALLEGED MAjSTSLAUGJITEU. The hearing of the charge of manslaughter against James O'DonnelL farmer, Inalia, was continued. Sir John Findlay, K.C., counsel for accused, addressed the jury, urging them to take a broad, fair, and comprehensive view of the case presented by the Crown, and judge for themselves if the facts presented squared with tie probabilities and likelihood. He pointed out that the accused was a young man on the threshold of life; a capable motorist, who had driven the same car for the past eight years, and, so far as the police knew, had never 'had an accident before The road was a broad and straight one. and there was no obstruction. He was driving reasonably with lights shining brightly, and the jury was asked to believe, in all these favorable circumstances, that the accused "had suddenly swerved his car and run into and killed this unfortunate old man. That was a most unlikely story. The real test to apply to the case was as to whether O'Donnell's car left the tarred portion of the road at the time of the accident. Thrf width of the tarred road waadl ft. •Sir John Findlay referred to the evidence of the boy Smith as given; at the first hearing of the case in the Magisl- - Court in which, he swore that the car did not come on to the sandy portion of the road- It was swerving, but did not leave the asphalt. This, counsel said, was the chief evidence for the .prosecution, given a few days after the accident, and yet it showed that the car did not leave the asphalt. If the car had struck Morgan while he was walking on the side of the road there must have been some wheel marks in the sandy portion of the road. But nothing was seen of any marks of a recent motor car off the asphalt part of the rosd. He was entitled to accept that portion of the evidence of the boy which best suited the probabilities of the case. Counsel then referred to the constable's evidence, which he said was given in a thoroughly straight-forward manner, without partiality. Yet this witness, who was an expert, could see no marks of a car having been recently along the road off the asphalt part. The only mark he saw was an old wheel mark, which was probably a week old. He actuallv examined the road for 55 feet back towards Hawera and found no ear mtrk off the asphalt. -Neither was there any car mark off the asphalt between where the milk was spilt and where deceased's body was found- The only possible theory was that the old man, had been on his wrong side of the roaS, and seeing the lights of the approaching car attempted to cross to his proper side. He suddenly loomed out of the darkness of the side of the road into the lisrhts of the oar. The driver saw him and swerved to the left to.try to avoid a collision. As to his conduct after the occurrence, if that was unreasonable, and injustifiable, and he (counsel) was, not defending his conduct, the jury were not to trv him for what took place after the accident. That was really the only feature of the ease that presented any difficulties, and that was really disposed of by the evidence of Dr. FookesCoun«el suggested that if accused's conduct after the accident had,been unjnstiable, he had suffered sufficient punishment since then in the suspense that had been hanging over him in connection with the trial, and he would also suffer by reason of the view which the genernl public might take of such conduct. He urged the jury to consider well before convicting a man on the evidence before them. If there was any reasonable ground for doubt as to the prisoner's gnilt his Honor would tell the jury thai thev were entitled to give him the benefit of that doubt.

Mr Billing said the jury could dismiss from their minds any consideration in regard to the delay in the hearing of the the cast It mattered nothing if the case happened six months or six days ago. If he were guilty it did not matter how long ago the crime was committed. It was the car which knocked down the deceased and killed him. Every person who drove a ear along a public street owed a duty to the public. The question for the jury to decide was whether the accused did drive so negligently aa to cause the death of the man, Morgan. The evidence of the boy Smith was that he and his grandfather were walking along on the left-hand side of the road, going towards Hawera, on the gravel or tarred part of the road. It would have been difficult for the deceased to push his little go-cart along in the sandy track on the roadside, and it was therefore natural that he should push it on the good part of the roadIt had been suggested that deceased carried no light on his cart, but counsel was not aware that there was anything requiring him to have a light on his vehicle. Xeither did he know that there was anything to prevent deceased walking along on the right-hand side of the road. In referring to the zig-zajging of the car, Mr Billing suggested that accused's statement that lie was dodging the pot-holes in the road, was some corroboration of the boy's statement that the car waa zig-zngging. If the boy was able to see Morgan in the lights of the car/surely it was reasonable to think that the driver of the car also saw him- The defence had suggested that if the prosecution's story was correct then accused's action constituted murder, but counsel suggested that if their theory was believed then it must be that Morgan had actually walked in front of the car and practically committed suicide. But there was no obligation on Morgan to cross to the other side even if he was on the ricrht-hand side- Counsel then traversed the various theories as to the exact position of the old man at the time of the accident, and dealt "also with accused's sfory of the occurrence. He said the fact that he did not stop when he thought he had brushed a man off his car with the mudguard required some explanation. Apoarently the doctor's evidence was intended to corroborate his storv | that he forgot everything that happened immediately the occurrence took place Counsel then referred to the newspaper account of the accident, susreesting that the story there wa« so different from what accused believed had happened as to cause him to doubt seriously whether it referred to him and his car-at all, if his account of the nffair was correct. If; was suggested that accused's statement as given to the police was wholly unbelievable. The iury must remember that the public iisinjr the had a ricJvt to protection and drivers of motor <w« must "\erpise surt <sare a« life, "•

I THE SUMMING UP. His Honor said Jic did not intend to detain the jury very long. The facta as related referred to a very brief space of time, and counsel had discussed, every possible phase of the cube, but it was the doty of the jury to form their own opinion as to what had happened. The onus was on the Crown to prove- that accused had driven negligently so as to 1 cause the deatli of the old man Morgan. The responsibility of drivers of highspeed machines on the roads was laid down in law, and the measure of that responsibility was set forth in: Section 171 of the Crimes Act. Anyone in charge of a high-speed vehicle was under au obligation to the whole public to use reasonable care and precaution to protect the public from danger arising from such machine. A man driving at night, or at the approach of night, in a place Where there were no public lights, and when the moon was not up sufficiently to be of service, must exercise special care. A question for the jury to decide was whether accused had given a correct account of what happened or of his own condition. It was known that the earliest results of drinking were frequently to make men incautious. In regard to the actual collision there was evidence as to the force of the impact ■by the position of the go-cart, the spilt milk and the body of deceased. Therewas also the statement that accusedheard no sound or crash at the time of the accident, and the jury must ask themselves whether they Velievjed he 0 heard no sound, and if so, why he did not hear; and also whether or not (his account of the happenings were true. If they thought it not true then they must investigate the -case as best (hey could without reliance upon his testimony. His Honor said hie understood accused admitted that the account he gave to the police when he gave himself up to them was not correct. Then he said his lights were all right, but in his evidence he said he had found that one lamp had been broken and the bracket bent. There was also evidence that the lights oir-the car were not all right as the car was going along the road after the time of the accident. With regard to the speed at which he was travelling, accused said it was 16 miles, but two witnesses had stated that lie was going at a high speed, and his Honor never heard of anyone estimating the speed of a motor call 1(! miles per hour a high speed. Referring to accused's conduct after the accident his Honor said that could not be put into the scale against him. The fact of his hitting a man in passing and not stopping to ascertain what had actually happened might assist the jury to decide whether accused's narrative was true. These were all matters which the jury were entitled to take into consideration in coming to a decision. They must be quite satisfied that he had acted negligently before declaring him .guilty. They must also remember that they had a duty to perform to protect the public from the danger of high-speed machines using the roadway. THE VERDICT. The jury retired af 10.40 and returned at 11.45 with a verdict of not guilty, and accused was discharged. PRISONER FOR SENTENCE. Percy Stewart Mann, for whom Mr. D. G. Gow (Eltham) appeared, came up for sentence on a charge of breaking and entering. In pleading for leniency, counsel said the boy was not 17 years old and there was nothing else known against him. He had been employed in the Opunake post office until he had to resign on account of deafness. The postmaster, his school teacher, and the residents of the district all said accused was a good boy, and the lapse was inexplicable. On the occasion in question he had gone to the house of a neighbor, where he had often gone, and the door was open; he entered and took a watch which he saw lying on the table. Counsel thought it was really not a case for imprisonment. His Honor said he intended to admit the accused to probation for six months, without any special terms, so as to avoid all stigma upon the boy's character and life. As he was very deaf, the judge asked counsel to acquaint'him with the meaning of the sentence of the court. A PLEA OF GUILT if. Charles Archer Bryant, for whom Mr. T. A. Taylor (Hawera) appeared, pleaded guilty to three counts in an assault charge at Hawera on November S last. Mr. Taylor stated that the assault took place in connection with the proceedings on the occasion of the first news of Germnay's having signed the armistice being received. Accused left his employment and went "to the centre of life" of the community—the Normanby Hotel. There had been some trouble between accused and the person on whom the assault was made, and they had determined to fight the next time they met. Later the same day accused saw the other man, and, without waiting, rushed at him and struck him with the weapon he had in his hand at the time. Accused had undertaken to pay doctor's expenses, amounting to £(! 6s, which had been incurred by the person assaulted. Certificates as to accused's character were put in from the constable at Normanby and two previous employers of accused. The judge said the probation officer's report was unfavorable, and showed that the accused was on the verge of being classed as a vagrant. He had been given his chance and had not profited by it. It was evident he was given to violence when in drink, and the case was one for imprisonment. Accused was sentenced to 18 months' imprisonment with hard labor FORGERY AND UTTERING. * A Native named Maue Onekura, for whom Mr. O'Dea (Hawera) appeared, was charged with forging and uttering a cheque for £4O on the Bank of NewZealand at Hawera, on May 10 last. drawn by Frank Milham in favor of Koro and Rangiira Rongonni, and made out to "order" Accused pleaded not guilty. The following jurv was empanelled:— Messrs T. A. Marritt, J. G. Powell, D. Cameron, L. F. Laurent, J. K. Hawkins, R. L. Freethy, R. Sharrock, N. W. Hill W. H. Pellew, J. Telfar, E. W. Edgecombe, and E. A. Johnston. Mr. Cameron was chosen foreman The facts of the case were that accused was a kind of agent who worked amongst Natives in the matter of leasing their lands. He worked in conjunction with Messrs Fitzherbert and Fitzherbert, solicitors, Hawera. Mr. Milham had a lease of some land from Koro and Rangiira Rongonui, and when it fell due he re-leased it for a further three months for £4O. A cheque was made out in Fitzlierbcrt's office by accused for the £4O and signed by Milham. He rang up Koro and Rangi and mentioned that some costs were due to the Fitzherbert's and rent to the Hohapis. Rangi told him to endorse the cheque for them SPltd pay the amounts'—£2n and £l3. Accused i# also giy.cn the Son&ojiuis .sozge

money at odd times. Accused cashed the cheque at the bank at Hawera. Milham did not know the cheque had not been paid over to Koro or Rangi till he met Rangiira some time after, who said he had received no money for the new lease. Milham then gave another cheque for the £4O to Rangi. The bank had paid the first cheque and cliargcd it to Milham. Milham never asked accused what had become of the cheque he gave him, though ho saw him several time* afterwards. Milham had never been given a receipt for the amount of the first cheque. Tlie prosecution held that Maui (the accused) had no authority to sign the cheque on behalf of Koro and Rangiira, and that his signing of their names and endorsing the cheque were not authorised. The defence was that accused believed he had perfect authority to sign and en- . dorse the cheque in question on behalf of Koro and Rangiira, and that the moneys were legitimately withheld on account of costs incurred and debts due by the two Natives to accused and to the Fitzherberts. Evidence was given by the two Natives—Koro and Rangiira, who said they gave no authority to accused to sign the cheque on their 'behalf; also by Frank Milham as to the re-leasing of the land through accused's agency and the paying of the cheque for £4O to him. Police evidence was also given as to interviews with accused in regard to the cheque. The chief clerk of the Bank of Australasia stated that accused had an account in his firm's bank, and he recognised the signature on the back of the cheque as that of accused. For the defence, Mr. P. Fitzherbert, solicitor, New Plymouth, gave evidence stating that accused worked in conjunction with his firm's Hawera business and had introduced quite a lot of Native clients to them. He had authority to collect costs for witness and was looked to to protect the interests of their business in any transactions undertaken. Accused also gave evidence as to the transactions with Milham on behalf of Koro and Rangiira, and that he also collected rent from the latter for the Holupis. He spoke to Koro and his brother about the costs owing to Fitzherberts and the rent to the Hohapis at the time he was re-leasing their property to Milham, and they told him to endorse the cheque on their behalf, and he believed he had been authorised to act in that way. After a short retirement the jury returned a verdict of not guilty and prisoner was discharged.