SUPREME COURT.

Gisborne Times, Volume XXVII, Issue 2612, 21 September 1909, Page 7

SUPREME COURT.

CRIMINAL SESSIONS. A LIGHT CALENDAR. Tho Gisborne Courthouse presented a crowded appearance yesterday morning on the occasion of the opening of the half-yearly session of the Supreme Court, which was presided over by His •Honor Mr Justice Cooper. THE GRAND JURY. Tho Grand Jury was empanelled as follows:-—Messrs Frank Souter Malcorri, William G. Crompton, Thos. Edward Toueycliffe, Jas. Dalrvmple, AVm. Morgan, Geo. Smith, Thos. Corson, Joseph Wm. Jas. Preston, John Wm. Cook, Geo. Adam Runciman, Allen Leonard Muir, Robert Johnston, John W. Bright, John Robert Nieholls, Gavin Ralston Wyllie, Geo. Grant, Louis Tliorley S.vines, John Henry Evan s , Thos. Alex. Coleman, Herbert Musgrave Porter, Henry Austin King, Mainland Louis Foster and Wm. Francis Anderson. Mr. J. W. Bright was chosen foreman. THE JUDGE’S CHARGE.

In his charge to the jury His Honor remarked that the criminal list contained charges against five persons, two of which were of a serious nature. The other three charges were not of a really serious character, and His Honor thought lie might congratulate the district on the small number of persons brought before tho Court at this sitting. Ho had just come from Napier, whero there wore only three persons charged with felony, and the- decrease in crime was a pleasant thing to find in those places. Of tho serious cases, one involved a ehargo of infanticide against a young •woman. His Honor understood that the police would not ehargo her with the full offences of murder, and he thought quite properly so, because the circumstances would not justify the Grand Jury returning a tnie bill for the ultimate offence. It would be lift cc.ssary to shortly explain tho law on this point, and His Honor pointed out that homicide was in itself not a crime, and that culpable homicide was not necessarily murder. Homicide was the killing of a human being; a child became a human being as soon as it was horn, whether it breathed or not, and the killing of such child was, if it died of injuries received before, during, or after its, birth, or of neglect to perform legal dutes and care towards the child. Culpable homicide was a criminal offence of which the first degree -was murder, and tho second degree might he called manslaughter. In this case the woman was about 25 years of age, and about a year previous to tho date of the alleged offence had given birth to a child for which she had proper medical attendance. On March 10th last she gave birth to . another child and had no attendance, the doctor only being called in after the child was born. 'The medical evidence would indicate that the child had been born alive, and that .it had' sustained some injury to Its head which was probably tho result of the exhausted condition of the woman and tho want of assistance in the matter. If the woman had deliberately injured the child, that would have been murder, but the evidence before the Magistrate did not show any intentional injury. What had happened in this case was that tho woman having no assistance and not having called in a doctor, had by her omission to obtain assistance caused certain injuries that resulted in its death. This reduced the charge to one of manslaughter, and if the juny found that the prima facie evidence 'boro this out it would be their duty to Actum a true bill on the major charge of causing tho death of the child by omitting to perform the legal duties infcumbent on her.

There was a second charge of concealment of birth. It was an offence 'if anyone disposed of the body of a child or concealed the fact that its mother was delivered of it, whether it was born dead or alive. In this case the depositions would show that the child’s 'l>ody was found in a box wrapped up. The case was a very distressing one, hut the Grand Jury would probably find a true bill.

The other serious charge was one of rape upon a .girl and or 10 years of age. ’The child in this case was about eight .years old. Certain circumstances were beyond dispute, and t’aese showed that the child had been outraged. The question was one of identity, and depended on tho evidence of the little girl and the evidence of one or two other children, and on other cir cumstances, which would probably justify the return of a true bill.

The remaining charges included one against a Maori of forging and- uttering a cheque for £5 10s. His Honor remarked that the fact of a person being in possession -of a forged' cheque and attempting to cash it was prima facie evidence of forgery. There was a charge against a butcher who became bankrupt "in May last of failing t/o keen proper books, and anoVuer of contracting debts when unable to pay them. Failure to keep- proper books was an! offence under the law, and if there was evidence that a man contracted debts without having any reason to suppose that he could, or would, be able to pay them, that was an offence.

The remaining charge was one under the Legislature Act, and was of a kind that seldom came before the Court. Section 220 of the Act provided that no payment or contract for payment for the purpose of promoting a candidate’s election shall be made, and any person contravening it was liable to be indicted for illegal practice and fined, [n this case cabs were engaged for the purpose of taking voters to the poll, and they must return a true bill. COMMON JURY. The common jury was empanelled as •follows:—Messrs B. S. Cox, Ernest •Ivil, David Chas. Jones, Harry Weston,, Frank Cox, William C. McLean. Frederick Carter Wilkinson. Jas. Walker Bain, Harry Higgs. John Sheridan, 'Goo. Thos. Heathcott. Archbald Campbell Linwood, Richard McCarthy, Geo. McLachlan, David Cameron, Albert Maokay, Montague Win. Craig, Edward Chas. Stillman, David Martin Wilson, Wm. Goo. Stevenson, Jas. Robert Miller, Theodore Armstrong. Fred Parker, ‘Jas. Smith Allen, Wm. Robert- -Morel], Henry Jacob Citron, Lawrence Anderson Ellerby, Wm. Judge, John Ed. Sheen, Roy Vincent Gully, Thos. Dalrymple, Robert Robb, Alfred Tilley Hookey, Francis Joseph Teat, Frank Yates/ Jas. Jones, Arthur Newman, Geo. Clifford Tarr, Michael Hugh Doyle, and Chas Gibson. AN ABSENT JUROR. When the name of Vincent Adolphus Pyko was called for the Grand Jury there was no answer, and after Constable Pratt bad proved service of the summons, His Honor imposed a fine of ■ £5. Later on the missing juryman turned up, and on his explaining his previous absence to the Judge’s satisfaction, the fine was remitted.

TRUE BILLS. True bills wore returned in all the charges as follows: — Rose Kerwin: Infanticide. ■ George Manns: Carnally knowing a child under the age cf 10 years. George Edward Darton: Alleged committing an illegal practice within the meaning of the Legislative Act, 1008. (Redstone’s case.) Same: Ditto (general). Joseph Henry Norcrcss: Failing to keep proper books. Same: Contracting debts while unable to pay. 3*. pi Tawara: Forgery and uttering. CHARGE OF INFANTICIDE. The first case called was that of Rose Kerwin. The accused was dressed in blank and’ pleaded “Not guilty” in a clear voice. Mr J. W. Nolan prosecuted and Air L. T. Burnard deiended.

The jury called upon was composed as follows: —Messrs J. R. Miller, W. It. Morell, Then. Armstrong, F. Yates, D. M. Wilson, T. Dalrymplc, F. C. Wilkinson. M. W. Craig. F. Cox, A. T. Hookey, J. Jones, and B. S. Cox. Arthur Newman was called, but challenged by the Crown. Air Ilcokey was chosen foreman.

Mr J. W. Nolan, the Crown Prosecutor, said that the prisoner was not charged, with murder as his hearers broadly understood it. In Alarch last the accused was employed by a Airs. Lochs as a domestic. On the 10th of that month she was ill and went to bed in. the morning. In the afternoon Airs Lochs wanted to send for a doctor, but accused objected. Airs. Loohs, however, was suspicious and sent tor Dr. Coker, to whom tho prisoner admitted that she had given "birth to a child. After lie had looked for the child outside, accused told him it was in a tin box wrapped up in a skirt. The child wag dead, and the mother in a very weak state. Dr Collins later made a post mortem examination, and expressed the opinion that the child was born alive, and that tho cause of death was suffocation. The suggestion of the prosecution was that the child died from non-attention affer birth and from suffocation as the result of being put in tho box.

The first witness for the prosecution was Alfred Philip Coker, medical practitioner, practising in Gisborne. The doctor gave evidence as to having been sent for by Mrs. Loohs on Alarch 10th. He got to the house about 3 p.m. and found the accused lying jn bed in a weak state. He asked her what was the matter, and after some hesitation she said she had a baby. She told him the child was in an outhouse, but this proved to be untrue, and she then said it was in a tin trunk, which was close to the head of the bed. On opening the trunk the witness discovered the child wrapped in a skirt with an apron over it. The infant was dead and practically cold when found. There were no signs of violence, but Dr Coker could not say whether the baby had been born alive or not. There were certain signs of neglect. On examining the accused the witness found every indication that she had recently given birth to r. child.

Air Nolan :Assuming*the child to have been born alive and to have been put in the box in the manner in which it was, would that have been likely to cause death?—Yes. It might "have died from privation of air.

Air Burnard: A'ou mean in other words that it would have boon smothered ?—Yes. In cross-examination the witness said that neglect to tie the cord in this case would' not have caused death. The white appearance cf the child’s s kin was an indication of asphyxia, and asphyxia was generally the cause of death when an infant was still-born.

Air Burnard: I propose to tell yon what Dr. Collins’ evidence is and ask your opinion on those points. His Honor: A'ou can’t do that. A'ou can only put assumptions to him. Y'ou cannot ask him to criticise Dr. Collins’ evidence.

Mr. Barnard: I intend to put the questions -as assumptions. Witness, further cross-examined, said that if he found certain- conditions, which counsel detailed, it would be proof that the child had breathed, but not that it had been born alive. It was very common for a child to breathe before complete delivery. Certain other conditions supposed ho -could not have said that death land been caused in any particular manner. He could not say with certainty that the child bad been delivered alive.

Counsel : I suppose a large number of children, and particularly illegitimate children, are born dead? — Yes, particularly in the case of first-)orn children.

Re-examined, Dr Coker said that even had 1 he made a post-mortem examination himself he could not necessarily have told that the child had been born alive.

James Clive Collins, medical practitioner, Gisborne, stated in the box that he found the body was that of a fullterm female child, well-developed, and with no marks of violence. He performed a post-mortem examination, and found the appearance of the lungs consistent with the child having breathed. Mr Nolan: When you say breathed, do you mean that the child had 1 lived ?

Witness: In my- opinion the child had lived some time.

Dr Collins added that the probable cause cf death was asphyxia. Wrapping the child up and shutting it in a box on a hot afternoon would, in his opinion, bo sufficient to cause death. Counsel: Had that child when born received proper attention do you think it would liave lived?—Judging from its organs I should say yes. Witness added that he had attended the accused on the occasion of a former confinement.

In cross-examination the witness said he based his opinions on the appearance of tho chest, cavity, the heart, the umbilical cord, and the abdominal organs. He could say emphatically thatthe lungs had expanded freely* more than once. Giving technical details atconsiderable length, Dr Collins explained to Mri Burnard the conditions on 'which his observations were based. In liis opinion as a professional mail he believed the child lived and breathed. Mr Barnard: Could you swear that it had lived? —I can only give my opinion .

His Honor: Not having seen the child alive the witness can only give you his deductions from the state of the body. Tho witness was cross-examined' at length and stated among other things that in the case of a woman being confined -without assistance, she was generally too weak to properly attend to the child. “That child cried!” said the witness later.

Counsel: Did you hear it ? —No, but that is my' deduction. Re-examined the witness said that in his opinion the child had died from slow asphyxiation. At 1.10 tho Court adjourned for an hour and five minutes.

At the resumption it was decided to take no other case during the day, and waiting jurors and witnesses were released from attendance till ten o’clock this morning.

Florence Marion Loolis, married woman, residing in Grey Street, Gisborne,

| was the next witness. She stated that the accused was in her employment for five or six weeks prior to Alarch 10th. On that day Kerwin was ill, and witness sent her to bed, and went to business. After lunch, in consequence of what her daughter, who had been home in the interval, told her. Airs. Loolis returned and saw tho accused, and afterwards sent for Dr Coker, though accused‘did not want her to. The doctor told the witness what was the matter with the young woman. Ida Ethel Loohs, daughter of the last witness, her mother’s evidence. AVhen she returned from the shop at lunch-time on Alarch 10th, she asked the accused what was the matter with her and offered to send for the doctor, but tho other would not let her. Annie. Stokes, married woman. Living in Gladstone Road, said the accused was confined in her house in Disraeli Street twelve months ago last Christmas. On Alarch 10th last the witness went to see the accused at Airs. Loohs place. She was very excited and weak, and told witness that she had given birth to a baby a few minutes after twelve (noon). She said she didn’t remember anything for sometime, and when she came to, the child was lying on the floor. She picked it up and put it into the bed, and afterwards Airs Loohs came in. The latter was so excited that the accused put the baby into a box lest Airs. Looks should see it. The, witness was present when the accused made a statement to Sergeant Hutton. The previous Saturday night, Alarch Gth, the witness had spoken to the accused about her condition, but the latter had said she couldn’t he that way.

By Mr Burnard: Witness knew the accused Well. She seemed to be a good respectable girl, and to have a kind nature. Witness did not think she was at all the sort of woman to kill a child. Airs Stokes added that the accused had told her she thought the child was dead when horn. AVhen tho witness noticed the accused’s condition she did not think thnt the event would take place so soon.

Sergeant D. D. Hutton gave evidence to the effect that he went to Airs Loohs’ house with Constable Dwyer as the result of information received from Dr. Cokeir, and saw the accused. The latter began to cry and was very upset when she was told who the witness was. The witness afterwards took the body of the child to tho morgue, where Dr "Collins made a post-mortem examination. On the night the witness was called in the accused made a statement (produced) stating who the father of her child was. She said she was confined on the floor. The child never cried, and she picked it up and put it in the box because she was too weak to do anything else. Dr. Coker was recalled to satisfy the jury as to how the. body was wrapped up. Ho stated that a garment was folded round the child, the box being two-thirds full of clothes. This concluded the case for the Crown.

Air Burnard, in opening the defence, said that lie proposed to call medical witnesses who would say that it was quite possible for a child to have breathed fully a number of times and yet have died before complete birth. They would say that it was possible for all the indications mentioned by Dr. Collins to bp present without tho child having been born alive. Counsel would also call -evidence to show that the fact of the child having possibly Cried would not necessarily mean that it had been born alive.

David Morrison, medical practitioner, of Gisborne, said he knew of many cases in which children breathed lor some time before they were fully delivered. He would also go so far as to say that it was a fairly common occurrence. He had known children attempt to take full breaths before being born. Mr Burnard: Is it possible for the body of a child to present the appearance of having fully’ breathed for some time and yet for the child to have been still-born ?

The Crown-Prosecutor objected to the question, but His Honor pointed out that in examining witnesses called in as experts, counsel could scarcely avoid asking leading questions. The witness answered the question in the affirmative as regards the lungs. Dr. Morrison further stated that he had known a child! to give a sort of cry and to be born dead subsequently. This would cause the same condition in the stomach as' if the child had lived and cried.

Carl Hermann Schumacher, medical X>ractitioncr, gave similar evidence. Dr. Coker, who had given, evidence for the prosecution, was also called for the defence. The witness said that in no case could a doctor making an examination of the body of a child three hours after death tell whether or not it was bom alive if there were no signs of external violence. Addressing the jury, Mr. Burnard said that if they found the accused guilty it would lie. one of the most serious crime s in the Criminal Code, and he ask'ed them .to bear this in mind when considering their verdict. He went on to deal with the medical evi-

denee at considerable length. Commenting on the fact that the birth took place before it was expected, he pointed out accused had probably no time to provide for .proper attendance. The Crown had not proved that the child was not born dead, and there was nothing unnatural in the accused having in her distress placed the body in a box. rr he Crown Prosecutor submitted Lit the onlv evidence that was relilYe js to tnis particular child having been born alive was that of the doctor who performed the post mortem examination. It would be a very dangerous principle to cast abroad that no doctor could tell, some time after death, in the absence of specific signs of violence, whether a child had been born alive or not. If Dr. Coker’s opinion on this point was to be generally accepted, counsel would hazard that there would bo a great increase in infant mortality. He pointed out that the fact of the accused' having kept the child in bed with her for two hours was strong corroborative evidence that it was not dead when born.

His Honor, in summing up, said that the jury had two questions to consider. Firstly, whether trie child was a living human being within the meaning of the law, and secondly, if it was a living human being, whether its death was the result of any act or omission on the part of the accused. The second question, was, of course, only to be considered if they decided the first point in the affirmative. His Honor reviewed the evidence at length. Dealing with the question of neglect, he said that the case suggested by the Crown was that the accused, owing to previous experience, must have expected the birth of the child. The ]ury, however, must be satisfied that there was a degree of negligence to justify them in saying that she had wilfully abstained trom obtaining attendance. This question was purely one of fact, and while the jury might take into consideration tho suddenness of her illness, there was also the fact that she had had a previous experience of child-birth. Commenting on the disparity of the accused’s statements when the fact of the birth was discovered, he said that owing to the physical and mental condition of the woman at the time her statements could not be looked on in quite the same light as those of a woman under normal circumstances.

At 5.30 p.m. the jury retired to ■consider their verdict. THE VERDICT.

At 6.12 p.m. the jury returned, and gave a verdict of not guilty. There was some applause in Court, which was at once suppressed. The accused was accordingly acquitted. ANOTHER CHARGE. Rose Kerwin was then formally charged with concealment of birth. She pleaded not guilty, and the hearing was adjourned till 10 o’clock this morning, the accused being released on •her own recognisance in the sum of £SO. A CASE ADJOURNED. During the afternoon Air. G. Stock mentioned tile case of James Henry Norcross. The accused, he said, was taken ill last week with sciatica, and could not attend. Counsel put in. a medical man’s certificate that Norcross was absolutely unable to walk, and unable to travel, and asked that the case be adjourned to next session. Hie Honort: To put back the case till next session means an adjournment of six months. In the interests of the accused it is desirable that he should be tried at this session if possible. The Judge further remarked that sciatica was an ailment frequently of brief duration, andj eventually agreed to adjourn the matter to Alonday next. Air. Stock intimated that ho would communicate with tho defendant in the meantime, and if he was not better another medical certificate could be procured.

A freak of Nature was on view at the Barry’s Bay factory a couple of weeks ago, says the “Press”, in the shape of a lamb born in a flock belonging to Mr R. Latter, Barry’s Bay. The animal had two' bodies, joined, having eight legs, two heads, and two tails, all perfectly formed. SORES THAT REFUSE TO HEAL. Sometimes sores are found that refuse to heal up. A small amount of pug is daily discharged, hut the sore itself remains in a stationary condition. It is suffering from weariness, and requires stimulating into activity, otherwise it may become chronic and grow larger. Rexona, the Rapid Healing Ointment, is particularly applicable to a case of this kind. Mrs. E. Fletcher, 83 Newman Street, Newtown, N.S.W., writes: “My little boy had a terribly core toe, which prevented him walking. The sore refused to heal for several months, although we tried every remedy we could think of. We at last tried Rexona, and it began to heal at once, and in five or six days there was not , a mark left.” Rexona is sold in triangular pots at Is 6d and 3s. Obtainable everywhere.