SUPREME COURT.

Tuapeka Times, Volume VI, Issue 284, 10 July 1873, Page 8

SUPREME COURT.

CRIMINAL SESSION. Monday, July 7. (Before His Honor Mr Justice Chapman.) His Honor took his seat on the bench at ten o'clock. The undermentioned gentlemen having been sworn of the Grand Jury : — Messrs Henderson Law (foreman), J. L. Butterworth, H. Calder, W. S. Douglas, James Galbraith, John Gray, Alex. Gunn, Chas. R. Howden, R. Howlinson, James Kilgour, A. H. Burton, George Matthews, N. J. B. Maogregor, James Scoular, H. Skey, Edmund Smith, and John M. Williamson — His Honor delivered the following charge : Mr Foreman and gentlemen of the Grand Jury, there are seven indictments to be presented to you on this occasion, and I am sorry to say that two of them are of a serious character. The rest of the cases are of such a nature that they will require very little comment from me, because they relate to those ordinary offences against property with which by this time you must be very familiar. The first case to which I shall call attention is that of William Atkins ; and it is very peculiar in its nature. The man is indicted for murder; and undoubtedly, if all the facts come out to your satisfaction, and to the satisfaction ultimately of the petty jury, the leading features of the case will amount to the legal crime of murder. What the Crown proposes to prove by the witnesses that will be sent before you amounts to this : a woman, whose name was Eliza Mains, visited the house of the prisoner, who is a carpenter, living at or near Clyde, and there she was ultiI mately found in a state of helpless intoxication. What is imputed to the prisoner is that he made her drunk for the purpose of having sexual connection with her. Now, under ordinary circumstances, supposing she had not died, that alone would constitute rape. If death ensues under these circumstances, he having intentionally made her drunk, it would amount to murder. The facts show, according to the hypothesis of the Crown, that hor death was caused by two circumstances combined — both the act of the prisoner, the one giving her large quantities of brandy to bring her into a state of intoxication ; the other that he had sexual connection. If from the combination of these two, both of them unlawful acts, you are satisfied that death ensued, then it will constitute murder. Under another aspect of the case it would constitute manslaughter. We will suppose, for instance, that you are not satisfied the intoxication was intentionally produced by him for the purpose of committing a rape. We will suppose that the evidence leaves a doubt upon the point, but shows this : that she herself voluntarily produced this state of intoxication, or, in simple words, was drunk ; and that the prisoner, taking advantage of her under those circumstances, had \ connection with her. That undoubtedly constitutes rape. The distinction for the purpose of this indictment between manslaughter and murder will be this : no jury I in the world would suppose that having had connection with the woman in a state of intoxication, the combined effects of both having produced such a state of the brain as to cause death, no one would say he intended to kill her ; therefore, " malice aforethought," as it is called, would be stripped from the case. But the law as to manslaughter is this : — Although a man may have no intention to kill another, yet if death ensues in the prosecution of an unlawful act, then it constitutes manslaughter. . . . I think, therefore, you will understand the distinction in this case. I believe it is the intention of the Crown Prosecutor to send before you two bills : one for murder, the other for manslaughter. Therefore, I would just give you this hint respecting them : that that degree of doubt which would justify the pretty jury i nacquitting the prisoner of even the mionr offence is just that degree of doubt which would justify the Grand Jury in finding a bill. Why? Because it is the duty of the Grand Jury to see that there is a prima facie case made out by the Crown which is sufficient to call upoa the prisoner to answer. Therefore, although the Grand Jury may have some lurking doubts in their own minds, so as to say that "in all probability when this case goes before the petty jury' they will give effect to that doubt, yet we, the Graad Jury, think the case ought to go before the petty jury," leaving to be determined, by the

petty jury all the circumstances which may operate in defence or excuse of the prisoner, or which may tend to mitigate his offence:. The other case is of very great gravity and I am sorry te say that although generally the degree of crime is diminishing, not only in this Province but throughout the Colony, this offence comes very frequently befoi c this Court. It is rape upou the person of a girl of tender years. Consent or the absence of consent is of no importance in this matter. A child under ten years of age is by the statute now in force in this Colony rendered incapable of giving consent ; therefore, if she did verbally or by her actions consent, her giving consent is just as if she had not given it. The law disregards that consent. The whole circumstances are that William Duffy, the accused, was in a public-house, I believe at Clyde, and in one of the rooms of that house a girl and boy, both of tender years, were sleeping in bed. The charge against Duffy is that he got into bed with the children and committed a rape upon the person of the young girl. The girl will be called before you, and as far as I can glean from the depositions, both the victim of the violence and the boy, who was with her, will identify the person of Duffy, and place it beyond doubt. Under the circumstances, if penetration has been completed, it constitutes rape ; if not completed, it is better to leave the petty jury to determine if there be any doubt as to penetration ; and it will be competent for them' to throw out the indictment for rape, and find the prisoner guilty of attempt to commit rape. The other three cases are ordinary crimes against property, one being an indictment for obtaining money by means of false pretences. . . . There are two cases which are novel in their nature, that is to say, novel so far as this Colony is concerned. In the course of my experience here and my previous experience in another district in the Colony, I have never had to try a case of the kind ; and Ido not recollect having seen in the newspapers of a case having been brought before any Judge of a superior Court in any part of the Colony. Two perBons, Moore and Calder, are indicted separately — of course each is a separate offence — for a contravention of the 50th section of the Act regulating elections, or what is called personation. By this Act any person who is guilty of giving false answers to the legal questions put to him— to the questions which are prescribed by the provisions of the Act— or of personating another person, or of voting twice, is, by clause 50, guilty of misdemeanonr, which is punishable, as every misdemeanour is, by line or imprisonment or by both, according to the discretion of the < ourt. Both of these mon went to one of the polling places in an election in this district, and represented themselves to be some other person, and were given into custody. I believe that one of them was identified on the spot as not being the man — though it is almost a bull to call it identification, when the person is known not to be the man he represents himself to be. Ihe other was identified to be the man he is, and therefore cannot be the man he represented himself to be. I think that on the face of the depositions in these cases, which are short, you will have no difficulty in coming to the conclusion that there is quite a sufficient case to take the opinion of the cetty jury upon. There is upon the Grand Jury a Mr Calder, who, I understand, is nearly related to George Calder, one of the accused persons : he should retire from the Grand Jury when the case comes on. MURDER. On the application of Mr W. W. Wilson, his counsel, the trial of William Atkins was postponed till to-morrow. SELLING SPURIOUS GOLD. Ah Youck, who was convicted at the last session of selling spurious gold at Naseby, and upon whom the passing of sentence was deferred, pending the decision of the Appeal Court on certain law points reserved, was brought up for sentence, and ordered to be imprisoned for twelve months. LARCENY. James Cornelly pleaded not guilty to an indictment charging him with having, at Oamaru on January 3, stolen a watch. He was undefended. The facts shortly stated are these : — On the 3rd of January last, the prosecutor, Robert Smith, a blacksmith, was staying at the Oamaru Hotel ; but in consequence of the whole of the accommodation being taken up, was obliged to sleep in a stable. Before retiring to rest at 11.30 p.m., he left his watch, which was attached to a silver chain, in his waistcoat pocket. Shortly afterwards, prisoner, who was employed in some capacity about the hotel, brought into the stable another man to sleep there. On getting up in the morning, prosecutor missed his watch, the chain having been broken in two, and part taken with the watch. Search was made among the straw, the prisoner assisting, but no watch, could be found*. A few days afterwards prisoner took the watch to a Mr Taylor's, a clothier at Oamaru, and obtained L 2 on it. It remained in the possession of the latter until he gave it up to the police. The prisoner's defence was that he found the watch, and being in want of money, pledged it with Mr Taylor ; but intended, when he was able, to redeem the watch and return it to the prosecutor. The jury, without leaving the box, returned a verdict of guilty. His Honor, in passing sentence, said :— It appears you have a taste for stealing watches, for I find that on the 15th February last, at Oauiaru, you were convicted before the Resident Magistrate there, of stealing a watch, and were sentenced to four months' imprisonment, with hard labor, in the Dunedin gaol, which you have just left. I shall give you a longer sentence this time, and if you come again, I shall sentence you to penal servitude on the roads. The sentence of the Court is that you be imprisoned and kept at hard labor for eighteen months. I should advise you not to come here again. THEFT FROM A DWELLING. Hugh Falconer was indicted for the theft of a quantity of wearing apparel and other articles from the dwelling-house of E. G. Tancred at Geraldine, Christchurcb. He pleaded guilty. Sentence deferred till tomorrow morning. FRAUD AND IMPOSITION. Donald Paterson pleaded guilty to having, od the sth April last, issued a valueless cheque for L 5 with intent to defraud. Sentence was also deferred until to-morrow.