%META:TOPICINFO{author="PaulKlemick" date="1185588406" format="1.0" version="1.1"}% %META:TOPICPARENT{name="PolishArtilces"}%

-- PaulKlemick - 28 Jul 2007

THURSDAY, FEBRUARY 16.

(Before his Honor Mr. Justice Sim)

The criminal sittings of the Supreme Court were continued on Thursday.

ATTEMPTED MURDER

Joseph Switalla was charged with on or about December 24, 1921, at Allanton, he attempted to murder Jacob Switalla. There were further charges of intent to do bodily harm, and of causing actual bodily harm.

The Crown Prosecutor said that the facts were exceedingly simple. The accused and Jacob Switalla were step-brothers, the accused being the son of the old lady, Mrs. Switalla, and Jacob her step-son. When they were not working they lived with their mother, and they were there on December 24. The family was of Polish descent. About 8 o'clock on Christmas Eve accused came into the room in which his brother was lying on a couch. The first that Jacob knew was that he received three blows over the head. Medical examination showed that these blows had not been given by a sharp instrument. As Jacob was rising from the couch he received a fourth blow on the shoulder from the sharp edge of the axe. Joseph went outside and Jacob following him was hit with a rail. There had apparently been a feeling of jealousy on the part of the accused because Jacob got on better with the mother than Joseph did. It was possible also that accused might have been under the influence of liquor. Fortunately no permanent injury had been done to Jacob. On the other hand the injury might have been of such a nature as to cause death. It was a question of with what intent the blows were struck.

Evidence was given by Jacob Switalla, Dr J. P. Shaw, and Detective Beer.

Accused elected to give evidence on his own behalf, stating that his brother cursed and swore at him and he cursed back. Jacob rushed at him and tried to throttle him and accused got the axe and struck Jacob with it.

His Honor, in summing up said that he thought the jury not trouble about the third count, and should confine their attention to the first two counts. They had heard the story told by each of the brothers and according to Jacob the prisoner had made a wholly unprovoked attack on him while he was lying on a couch. They had heard the story told by the accused that they quarrelled, and that his brother came at him with a carving knife and that he then took an axe. Even if they accepted the story of the prisoner it was clear that the blows were not struck in self-defense. He thought therefore that that could be left out of consideration. Their having no justification for self-defense then it was really a question of which of the two counts they ought to convict prisoner on. Unless he struck in self-defense it was clear that prisoner had committed a breach of the law. The jury had to decide whether the prisoner attempted to kill his brother or only attempted to do him bodily harm. Prisoner said that he knew what he was doing, so it was clear that he was capable of forming a clear intention. It seemed reasonably clear that prisoner did not intend to murder his brother because if he had had the intention nothing could have been easier armed as he was with a weapon like that.

The jury retired at 11.35 and returned at 12.20 with a verdict of guilty on the second count and not guilty on the first count and with a strong recommendation to mercy.

His Honor said that in this case the jury had found the prisoner not guilty of the more serious charge and guilty of the minor charge with a recommendation to mercy. In view of that recommendation he thought it would be sufficient if prisoner was sentenced to a term of one year's imprisonment, with hard labour. "The Otago Witness", 21 February 1922.