Editorially speaking…
As told in this week’s Chronicle, Stuart Henderson’s courtroom record was perhaps without equal: he lost just five cases of 50 over a half-century of defending clients accused of serious crimes, usually murder.
Lawyer Henderson’s most famous client, by far, was the accused murderer, Simon Gun-an-noot, second from left,posting with provincial police officers. —BC Archives
One non-capital case that he lost, in March 1929, is worthy of note for how Henderson made his plea for mercy and for how the judge responded. How our justice system has changed over the past century...
This is how it was reported in the Victoria Colonist of Mar. 21, 1929:
THOMAS SMITH IS SENTENCED TO FIVE YEARS
Mr. Justice Morrison imposes punishment on prisoner found guilty of criminal assault here.
Deportation to be recommended.
Five years’ imprisonment in the B.C. Penitentiary at New Westminster was the sentence imposed by Mr. Justice Morrison at the conclusion of the Spring Criminal Assizes here yesterday, on Thomas Smith, alias John A. Green, alias George Allen, formerly of Los Angeles, California, who was found guilty by a petit jury on a charge of criminally assaulting a woman in Oak Bay municipality on Dec. 7, 1928.
His lordship stated he would recommend that Smith be deported at the termination of his prison term.
“Had I been on the jury I'm not sure that I would not have taken a different view from that which the jury did on the case. But, of course, it was entirely in the province of the jury to take the view it did,” Mr. Justice Morrison remarked. At 2:30 yesterday afternoon, Smith was arraigned in the prisoner's dock to receive sentence for the offence on which he had been convicted.
“Have you anything to say why sentence should not be imposed upon you?” His Lordship asked the prisoner. “I'm in your hands, My Lord,” Smith replied in a low tone of voice.
War Record Cited.
Mr. Stuart Henderson, counsel for Smith, in addressing the court, said that, while the accused had been found guilty by a jury of a serious offence, the verdict was accompanied by a strong recommendation for mercy.
Mr. Henderson said Smith came to Victoria last May and stayed until September. He went away, and returned early in December. Speaking of his war record, he said that the accused went to the war with the first American Legion in 1916. He served 28 months at the front. He was twice wounded. When wounded the first time he was ordered home, but he didn't go home. He went back to the front and was again wounded. He was discharged from hospital with a disability pension and since then has voluntarily resigned that pension.
“The accused went into business in Los Angeles and Hollywood, and is now in receipt of an income from investments of from $1200 to $1800 dollars per year, besides having property valued at $8,650, which indicates he is a hard-working and energetic man, with a purpose in view in life. I would urge the court to exercise leniency towards him," counsel said.
Mr. Justice Morrison, in speaking of the jury’s strong recommendation for mercy for the prisoner, declared the courts always give full value to such recommendations in matters of this character. "There were a number of things which take this case out of the category of the serious aspect of assaults of this kind, and I think it is quite fair for me to take this into consideration in determining what sentence should be passed upon the accused."
Escapes whipping.
“The recommendation for mercy," His Lordship continued, "justifies me in eliminating from my consideration that which I otherwise might have inflicted— and this is a whipping. I want to impress upon the prisoner the extreme penalty attached to the crime of rape in this country is hanging, and it shades down to the various forms that usually are apparent; and anything short of that the penalty attaches to it the whipping. Even an attempt to rape it is a period of seven years imprisonment and whipping." (My italics—TW.)
His lordship said the recommendation to mercy was merciful so far as the prisoner was concerned, and that he hesitated to prolong his stay in the country at the expense of the country. “Under all the circumstances, I send you to five years in the penitentiary, and shall recommend that you be deported," Mr. Justice Morrison declared in imposing sentence.
Smith was visibly affected when the sentence of the court was pronounced. With unsteady step he walked from the dock to the corridor, from where he was led by provincial police officers to a police car outside and taken to the city jail to await removal to the penitentiary at New Westminster.
As I noted, our judicial system has changed over the past 95 years. I leave it to readers to decide if for the better or for worse...
* * * * *
A major overhaul of my extensive library turned up numerous books I’d hadn’t read, that I had, in fact, long forgotten I had them. One, From Wheatfields to Timber by Margaret Gray Morse, was published in 1998. She will be long gone now but her memoir, which comes across as more of a family history, impressed me for its unwritten theme: for want of a better word, community.
In this nuclear age of fragmented families (by which I mean, everyone doing their own thing as opposed to working as a single harmonious unit), the way of life for many Canadians in the Dirty ‘30s (the time of the decade-long Great Depression) was so unlike the world around us today.
Back then, when times were truly harsh for 100s of 1000s of Canadians, particularly those on the Prairies where drought and dust storms compounded the misery and many were forced to abandon their homes, everyone pulled together.
Throughout her book, Mrs. Morse tells how complete strangers helped each other, opened their homes to them, stood together through fires and personal tragedies. Young couples married, had children while struggling to make a living and keep a roof over their heads but still forged ahead with common purpose.
In her case and that of her husband Ron, they experienced two fires which made them start all over again, changed locations (from Saskatchewan to Houston, B.C.) half a dozen times with a growing family, and still got by and finally prospered.
My point: People of generations ago shed hardship like water from a duck’s back. Always, they carried on, and they did so by helping each other. And without really complaining, I might add.
My grandparents came to Canada to start their lives anew and went through the First and Second World Wars and the Great Depression. My parents came later, of course, but in time for the ‘30s and World War Two. Thanks to them, I never had to serve in the military, never had to defend my country, but have enjoyed all the benefits of Canadian citizenship.
I’m sure this applies to most readers of the Chronicles.
I thank Mrs. Morse for reminding me to appreciate our collective heritage. Canada Day, July 1st, is rapidly approaching. But, like Remembrance Day, shouldn’t be observed for just a day, but every day of the year.