COURT OF APPEAL.

Temuka Leader, Issue 1563, 10 March 1887, Page 2

COURT OF APPEAL.

[Before their Honors the Chief Justice, Mr Juslice Johnston, Mr Justice Richmond, Mr Justice Williams, and Mr Justice Ward.] KEaiNA V. HALL. The special session of the Court of Ap. peal for the consideration of the point raised in the case of Begina v. Thomas Hall, tried in Dunedin for the murder of Captain Cain, was opened at 11 a.m. on Tuesday, and the following account of the first day's proceedings is abridged from the Press:—

Mr B. 0. Haggitt, with him Mr J. W. White, Crown Prosecutor at Timaru, appeared on behalf of the Crown ; Mr F. R. Chapman, with him Mr J. E. Dennistoun and Mr U. D. Bell, appeared for the prisoner. Mr Chapman, for tbe prisoner, said the special cise reserved by Hit Honor Justice Williams was as follows • case was reserved under section 20 of the Court of Appeal Act, 1882, at the January criminal session of the Supreme Court at Dunedio. Thomas Hal! was tried before me for the wilful murder of Henry Cain. Tbe jury found a verdict of guilty, and sentence of death was passed, but execution was respited until the questions of law reserved by tin- present case should have been considered and decided by this Couri;. The death of Heory Cain occurred on tho 29th January, 1886. From circumstances which arose subsequently to the death, Cain's body was exhumed on tbe 27th of September following. The body was found to contain antimony, and Cain shortly before bis death had exhibited symptoms of anti- " inony poisoning. The case attempted to be made againat the prisoner was that the death of Cain had been caused, or accelerated, by antimony administered by Hall. It was proved that the prisoner during the last few weeks of Cain's life visited Cain almost daily and generally twice a day, and was often alone with him on these occasions. Cain during this period was an invalid, for the most part confined to his room, and during the last fortnight of his life to his bed. The hypothesis that the antimony found in Cain's body might have been administered by accident, was distinctly before tbe jury. Evidence was tendered and admitted that after the death of Cain viz, in June, J 886—the wife of the prisoner was confined, that tbe prisoner whs in constant attendance upo» her, and that from four days after her confinement down to the 15th August she exhibited symptoms of poisoning by antimony ; that on that date the prisoner was arrested on the charge of attempting to murder his wife, and that antimony was found upon him; that iced water given by the prisoner to bis wife and the excreta of his wife upon analysis were found to contain antimony. This class of evidence was objected to as a whole. I admitted it, however, on the authority several cases. [Cases cited]. In' ming up I directed the jury that they ought to 'draw any inference from this evidence as to the administration of antimony by the prisoner to Cain that they considered reasonable. The admission of the above evidence was, in my opinion, essential to establish the administration of antimony by the prisoner Had it not been admitted I should probably have told the jury that there was no evidence againßt the prisoner upon which they could safely act. The case Regina v. Winslow, 8 Cox, 0.0., 397, the fact that in Palmer's case, where the evidence of this kind was almost certainly in existence, and where the case for the Crown would have been enormously strengthened by its admission. Such evidence was not tendered, and the fact that the question had never come before, the Court of Crown cases reserved seemed.' to me, in the absence of any right of appeal by the prisoner, to justify the opinion of this Court being taken. The question for the consideration of the Court of Appeal is whether, upon consideration of the case as above stated, the conviction should stand. A copy of the notes of the evidence, which are exceedingly voluminous, will be transmitted to the Registrar for the purpose of being referred to, if necessary, on the hearing of the case.—Joshua Strange Wilmams. There was also a uote appended that counsel might make use of tho report of the sun,ming up. Mr Chapman went en to say that he proposed to submit in the course of his argument that the evidence was, under the circumstances, inadmißsable. In deal* ing with this he would not dispute that i evidence of history in all parts of the world might be given, but that the evidence as given against Hall was inadmissible. It would only be admissible where the itself } being admitted or proved, it necessary to prove guilty knowledge on the part of the actor, that was the intention as gained from the knowledge of the action of the prisoner. Beyond this the direction of the learned judge went too far in the way he put it to the jury, which, he submitted, went the length permitting the jury, or directing them, yf that they might use this evidence alone to convict the prisoner with the principal

act which nas being inquired into. Mr Chapman then quoted a large number of cases in support of his arguments. Id the course of his address the following occurred ;—Be submitted that even in the case where the possibility qf the owa*

mission of a crime was narrowed to two persona it would bn adniissib'o to produce evidence that ono of those parsons had formerly committed a similar crime. Supposing that three persons wearing a distinctive uniform were charged with an offence, could the Crown Btart by giving evidence as to one psrson having committed a similar crime 1 He submitted not. Let them take another case. Two clerks in a Bank holding keys which could be used independently, and being the only ones having the opportunity, coin is missed, and both clerks are dismissed. Some time afterwards th« character of one pf the clerks in discovered to be dishonest. Could evidence be given of this as to his being the guilty party in the former case f His Honor Mr Justice Johnston snid that he did not think that this evidence would be received. Whether it was right or wrong he did not say. Mr Chapman asked whether, if this chrp bad betjp tried before the one in Christchurch, would it have been evidence against Miss Houston that she administered antiuio n v to Mrs Hall in oysters ? MrJustic- ,r hnston: There would, <>f course, ha' u c) be evidence that sh'administered poison knowing it to he such.

Mr Chapman : Then would that have beer evidence against her of ha ping poisoned Captain Cain 1 Mr Justice Johnston : We have not that before us now.

Mr Chapman: But suppose the trial for the murder of Captain Jain had come first, would the evidence given as to Mis* Houston administering the poison in oysters be able to be used against her?

Mr Justice Johnston : There was no evidence of the poison being put there by Miss Houston. That she administered the oysters there was bo doubt. Bnthere was no evidei'Cß that Miss Houston knew that the oysters were poisoned. The suggestion of the Crown was that Hall put the poison there. Mr Chapman : Supposing no suspicion had attached to Hall in the second ose, would it not have been strong evidence against Miss Houston that she had given Mrs Hall oysters which had rendered her sick 9 Mr Justice Johnston : It would b j flvldence perhaps, but not very strong, to intent, because there was no proof Bhe knew of the adtniuistration of the poison. Mr Chapman then «"ent on to cite still further illustrations from Mr Wharton's work in support of his contention, and at 5 o'clock the Court adjourned.