DANGEROUS TOYS.

Auckland Star, Volume XXXV, Issue 190, 10 August 1904, Page 5

DANGEROUS TOYS.

KILLED BY A PEA-RIFLE. REMARKABLE AFFAIR AT ROTORUA In the Auckland Supreme Court this morning a 16-year-old youth of Rotorua lamed Charles Montgomery Clarke was tried on a charge of manslaughter committed on a playmate named Richard Leonard Godfrey Mayes, while skirmishing with him with a pea-rifle . When the accused was called upon to plead, his counsel, Mr T. Cotter, asked that the case might be dealt with under section 17 of the Criminal Code Act, 1893. This section, Mr Cotter pointed out, provided that in cases where the ! depositions showed that the offence required no more than a nominal punishment, and it was undesirable that a conviction should be recorded, the judge : -night at his discretion direct the Grand Jury to return a "no bill," or direct that he should not be arraigned, but should be released from custody with all the advantages of an acquittal. If that stage of the proceedings was the proper time to make this application, he would with the Crown Prosecutor's permission address His Honor on the circumstances of the ease. His Honor said that this was the proper stage of the proceedings to do so. Mr. Cotter then, addressing His Honor, said: "From the depositions it would appear that these three lads—the deceased being 17 years of age and the other two about 16—had been friends for years; they had practically grown up together, gone to school together, been playmates, visited each other's houses, and been on the most perfect terms of friendship. They went out on this particular day to, have a day's outing, and unfortunately they carried ..with them articles which are known as pea rifles. They say you can hang a dog by giving it a bad name; and so apparently you can, by giving an article a light name,, give the impression that that article is not so dangerous as if called by an ordinary term. I understand that these articles, though called pea rifles, are in reality loaded with a small bullet. These boys went out with those rifles shooting rabbits. Apparently on the way out they used these pea rifles in shooting at marks and tins, and otherwise amusing themselves. When they came to this particular place in the bush the deceased, for some reason or other, suggested that they should have a skirmish. The suggestion did not come from Probert or the accused, but from the deceased himself. The depositions show that in the first place the deceased skirmished with Probert, and, peculiarly enough, when that skirmish took place the lad Probert took up a position behind the same log as that behind which the deceased met his death. They exchanged a number of shots, and it was only when Probert's ammunition was exhausted that the deceased suggested to the accused that he and deceased should have a skirmish. Accused refused in the I first insta-ice to have a skirmish at all, and he informs mc that on no previous occasion was ever such a suggestion made, nor did ever any skirmish previously take place between these two boys. Whether it did between Probert and deceased we do not know, but so far as the accused is concerned this 2s the first and only occasion he has skirmished with deceased or any other person. Accused declined, but on deceased saying something about his being frightened or chicken-hearted, then, boy-like, he agreed to have the skirmish. The skirmish then took place, and while it was going on something took place with regard to a bullet having touched deceased's hat. One would have thought that the young man would have then realised the danger, and would not have willingly gone into that skirmishing again. But apparently deceased was a very brave boy: I don't want to use the word 'reckless.' But from the evidence given by Probert, deceased actually on a couple of occasions said he wouH like to be under fire. And this instance about the hat he only looked upon as a kind of because he treated it jokingly and said something about 'what a lucky escape he had.' So the second skirmish ended. Before that, however, and before any skirmishing began at all, the deceased actually fired off his rifle, and bullet from which went between tue legs of either Probert or the accused, and when deceased was spoken to about it he replied that he knew all right, and knew where to fire." In regard to the third, or fatal, skirmish Mr Cotter said: "It occurred in this way. The boys made arrangements that if they separated they should signal by firing. Apparently Probert had gone away, and the accused wanted to find where he was. They signalled, but there was no a.iswering Signal, and the accused left the deceased for a few paces to go in a direction to try and find' P.obcrt. Accused turned round to see if deceased was following, »nd then deceased

pointed his rifle at accused as if inviting him to co__mence skirmishing again. Deceased got behind a log and accused got behind a tree, and then when deceased fired *hots he returned them. Between ■ the last but one shot which accused fired .and his last and fatal shot accused s;.id there might have been a little more ti.:«i than between the others. He took mora ! time loading, and the deceased might have thought his friend had finisiui firing, so he raised hia head; or ha might have thought this time his hea4 was actually concealed from any d:< tiger from the fire of the rifle. But whatever it might have been, the fatal slot was fired, and deceased unfortunate :y killed." "Now," said Mr Cotter, "I would not stand here before Your Honor and m;''kthe application that I am doing if taa facts were different, or if the accused were of an age at which one would <-:<- ---pect him to fully realise the actual danger of using firearms of this kind. L'.ut at the age of 16, with two skirmishes gone through, and no injury happen; ng, he might still have thought, 'OL, well, no injury is likely to arise now.' Frobert had said he had heard that these guns were dangerous, but, so far as he could see, he did not think they were." Mr Cotter continued that, so far as his own knowledge went, he was not aware that such an occurrence _ad been previously recorded, although his friend, Mr Tole, informed him that a similar fatality had arisen through the use of these pfa-ri-les. But at the time of the present fatality there was not present in the minds of these young persons any idea that what they were doing might result in injury or loss of life. He would ask, therefore, that His Honor should deal with the case under section 17 of the code, as suggested. A young man had always life before him, and he had already suffered very greatly. His Honor would remember that for two hours the accused held his dying friend in his arms, and he (Mr Cotter) was convinced that what accused had suffered was greater punishment than any which the Court could inflict. If His Honor consented to his request the accused would not be placed in the position of having it said in years to come that he had been convicted. His Honor: I do not feel disposed to act on your suggestion, Mr Cotter. The Hon. Mr Tole said it would in that case be necessary to call upon the accused to plead. This was done, and the accused replied, "I am guilty." His Honor: Prisoner at the bar,—That you committed an altogether unjustifiable act, resulting in the death of your companion, there can be no doubt. It is quite contrary to law that any one should engage in the sport in which you were engaged. It is quite contrary to law that any one, whether in the name of skirmish or with more serious intent, should discharge firearms at another person. But at the same time it is, of course, quite plain from the depositions that your counsel is right in saying there was no evil intention on your part. Nevertheless it was absolutely necessary that this prosecution should be undertaken by the Crown, in order that reckless persons who indulge in lawless sports may understand that if they kill or maim their fellow-beings they will come under the arm of the law. In dealing with you, however, I must necessarily consider the extent of your guilt and what may be expected to result from passing sentence upon yon. And I must take into consideration the fact that if you are capable of feelings at all—and I see no reason to doubt that you are— you have already had most effective punishment in tbe consciousness that you must retain throughout the whole lof your life that you have been the cause of the death of your playmate and friend. Under the circumstances, and considering that it would serve no good purpose whatever to send boys, though guilty of a breach of the law, to herd with convicted criminals, I feel justified ■__ ordering you to enter into your own recognisances to come up for sentence when called upon. I am anxious that this should be considered in the nature of a warning to all those reckless youths throughout the colony, and I believe there are a good many in the country, who are addicted to the use of this weapon, which is considered to be harmless, but which in reality, as everybody knows now, is most dangerouf. I hope it will be considered a warning by these people, because if it happens that anyone else should come up after this warning under similar circumstances it will probably be my duty to pass sentence upon him. In the mea_»ti_te I feel justified, as I have said, in releasing you on your own recognisance to come up for sentence when called upon. I do no* think there should be any need to caution you, but if necessary I say that yom must be on your good behaviour now. If you should misbehave yourself in any manner you are liable still to be called upon to com. up to this Court to rer ceive sentence upon the present charge. The recognisance was fixed at £ PQ.