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jury in order to enable the own to bring forward a stronger case by bringing forward Mary Fine, but that the appellant should have a fair trial. He cannot have a fair trial owing to the fact that the jury had tried him and ŝeturned their verdict had heard what the evidence of Mary Pine would be.
The next ground which my my last ground is the additional ground. The evidence of Hrs, Fairburn in the absence of the evidence of Mary Pine was wrongfully admitted and put to the jury. No objection could possibly have been taken at the trial because the defence asd conducted on the admission that the Crown was going to call Mary Pine to give evidence.
"e submit in the absence of Mary Fine's evidence the evidence of Krs. Piarburn was not admissible on the ground as put forward, because the evidence of Mrs. Fairburn as to the throwing of the two children could be classified as falling under the heading of "similar act". I submit evidence of similar acts cannot be given in any trial unless the Grown has first of all made out a prima facie case against the spellant.
I refer to only one authority. I. vs. Smith Vol. 11 Cr. Appeal page 229. Judgment. Statement on Law on page 237. About the middle of page ... "It is suffici en të
whole judgment read.
Mr. Haydens- Would that not be evidence of "similar acts not committed at the same time. - that is the whole point of the case.
If there has evidence to prove any one of the three children had been thrown by the appellant then these two points are admissible on the ground that that formed part of res jeste(?).
(Discussion on how case compares with present case and Mr. Hayden does not agree it compares).
Adjourned to 2.15 p.me
2.15 p..
9.10.34.
MR. FRASER.
My Lords tm
The case for the appellant has been put by my friend with great lenth with his usual el@quence and it is incumbent on me to put the case at your Lordships request, for the respondent.
In the first place may I apologise for having interrupted the proceedings of this Court so often during my friend's proceeding I was led into that course by what was rather unexpected to me, the attributing to my opening speech a great many things which had no place there.
That being so I feel it also incumbent upon me to define as shortly as possible what was said or what could have been asid and first of all I would direct your Lordships to the statement which is before you at paragraph" (a) - the statement is that Mary Fine would say some of the children etc.
Now that is the only a tatement which direct mention is made that any witness will say a particular thing and from this contiguity of the two statements - Brio Davis and Mary Pine, Your Lordships will see the reason for putting it in that form, It was an attempt by me to anticipate in the minds of the jury any confusion that might arise between these two statements and I put it to them straight away.