NAPIER SHOOTING

Wairarapa Times-Age, 2 November 1938, Page 5

NAPIER SHOOTING

HERCOCK FOUND GUILTY OF MANSLAUGHTER CHIEF JUSTICE PASSES SENTENCE. IMPRISONMENT FOR TWELVE YEARS. (By Telegraph—Press Association.) NAPIER, November 1. Convicted by a jury of manslaughter, Colin Herbert Hercock, Waipawa, aged 21 years, was sentenced by the Chief Justice (Sir Michael Myers) to imprisonment with hard labour for a term of 12 years. When his Honour pronounced sentence, an audible gasp went up from the spectators, who filled the court in every part, but silence was instantly restored by the court orderly. Hercock was charged with the murder of Mrs Isobel Annie Aves in Westshore on October 3. Before his Honour passed sentence, accused’s counsel, Mr C. G. E. Harker, making a plea for leniency, said his honour had probably formed a favourable opinion of accused’s character. Accused’s best instincts, said Mr Harker, rather than his worst instincts, had placed him in the position in which he now stood. It was regrettable that a man of prisoner’s type should be before the court at all. He asked his Honour to take the view that it was not a question of punishing accused but one of satisfying the demands of society. In all the circumstances and because of the youth of accused, he asked his Honour to take the most lenient view possible and make any sentence he saw fit to impose of a reformative character rather than penal.

In passing sentence, his Honour said that from the observations of accused’s counsel one would almost think accused should be regarded as a hero. “I do not so regard you,” said his Honour, addressing prisoner, “nor do I intend to adopt Mr Harker’s suggestion of reformative detention. If I were to extend leniency of that kind it would be equivalent to a pronouncement from the court that human life is no longer sacred. I decline to be a party to any such thing.” In Wellington recently, said his Honour, he presided over a murder trial in which a young man was found guilty of manslaughter and sentenced to 10 years’ imprisonment. There was no evidence in that case that accused had gone into a room with a lethal weapon in his hand, but in the present case accused went to a woman’s house with a loaded gun in his hand. “We know Mrs Aves had performed an illegal operation on the girl and you took her there for that, purpose,” said his Honour. “I know that some two years ago she was charged with a serifes of those offences and, in the face of the most convincing and conclusive evidence, four juries were unable to agree. I do not hesitate,” his Honour continued, “to say that the few —I hope only a few —who refused to do their duty in that case undertook a serious responsibility as events have turned out, as it appears that this woman came back and continued her illegal practices. If she had been dealt with as she should have been this tragedy of yours would not have happened. Nevertheless,” his Honour concluded, “she was entitled to her life, and that you have destroyed.” His Honour then passed sentence. In the course of his summing up, the Chief Justice said:—“This woman, Mrs Aves, was killed. That is homicide. We now come to the division in the Statutes which defines culpable homicide. Homicide is culpable when it consists in the- killing of any person by an unlawful act. Now, gentlemen, supposing you accept prisoner’s statement in this case. Supposing you thought you should come to the conclusion that he went there for the .purpose of frightening Mrs Aves. He went there with a loaded rifle and he fired that rifle, committing an unlawful act. So, gentlemen, I direct you as a matter of law that if you accept prisoner’s statement in full that he Went there with a loaded gun .in his possession and with the intention of frightening her, then that was an unlawful act and the woman was killed. That was culpable homicide. If this is right, then accused is at least guilty of manslaughter.”. The possibility of accused being not guilty because of insanity could be ruled out altogether, said his Honour. There could be no suggestion of provocation and he would .tell them that the law said that culpable homicide might become manslaughter where sudden provocation caused a person to lose his self-control temporarily. Mr Weston had suggested that the young man thought he was doing a ’good thing for his country by frightening the woman and stopping a nefarious practice. What right had accused to set himself up as the saviour of his country? Having reviewed the facts adduiced in evidence, his Honour said it was for the jury to say whether, in all the circumstances, it could conscientiously say on the whole case that it did not believe accused had meant to kill Mrs Aves. If the jury had any real doubt and not visionary doubt, it should not find him guilty of murder, but of manslaughter, but if it was found that he had committed murder, then the verdict must be one of guilty. The jury retired at 12.10 o’clock, and returned at 2.50 with the verdict.