7
17th day of October 1934 such appeal was dismissed.
a.
12. Your Petitioner humbly submits :
That a substantial miscarriage of Justice occured in that
it was impossible for the Jury to disregard the statements in
the Crown's opening with regard to the evidence that Mary Pine
would give, in spite of a warning to that effect given by the
Learned Trial Judge.
That the evidence given by the said Doris Pine with regard
to the two marks on Mary Fine's neck was of no importance
whatever unless the Jury had in mind the Crown's opening, namely,
that Mary Pine was seized by the neck by your Fetitioner end
that therefore the Learned Trial Judge misdirected the Jury on
this point when he said on page 14 of his summing-up :-
"There is one piece of direct evidence which from the
point of view of circumstantial evidence is of considerable
importance. That is the two bruises on Mary Pine's neck.
You remember the state she was in when her poor mother got
home she found her being put to bed. She was undressed,
examined there was a mass of bruises and cuts, but there
were two strange bruises on the right hand side, at the
base of the neck. The skin was not broken, they were
bruises and they were circular in shape. Now, gentlemen,
I mention this for two reasons.
Firstly, because it is an important piece of evidence
that you will have to fit in to the whole of this great
jig-saw of pieces. Also I want to remind you expressly
that you must pay no attention whatsoever to the statement
very properly made in the circumstances by the Counsel
for the Crown, in his opening that those are indicative
of the grasp of the accused as Mary Pine tried to run
away. This is one of the statements made by Mr. Fraser
in all good faith and confidence that Mary Fine was going
to give evidence. She has not given evidence and therefore
6.