FOUND GUILTY

Gisborne Times, Volume LXXIII, Issue 11878, 24 February 1933, Page 7

FOUND GUILTY

ASSAULT QN. AGED WOMAN

FISH REMANDED FOR SENTENCE

Following a retirement of under three hours (including the luncheon interval), the* jury brought in a verdict''of. guilty in the. case in which Frank Fish', 31, was charged with assaulting Mrs. YVilhelmina Mary Horne a widow, aged 71, causing her actual

bodjly harm, at Gisborne on January 20. i The case was heard before. His Honor, Mr. Justice Riair in the Supreme Court, starting on Wednesday afternoon and concluding yesterday. Fish was remanded for sentence. The Crown Prosecutor, Mr. F. W. Nolan, conducted the Crown case and Mr. E. T. Brosunhan appeared, for accused, who pleaded not guilty. When the hearing was continued yesterday morning, the cross-examin-

ation of Arthur S. Stevenson was continued Toy, Mr. Broshhhan. Wit- | ness stated tliht,. on his return f rom j the police station, Mrs. Horne did not. say anything about the hammer. 'The only time' she mpntionedi.it whs after she came back from hospital, when witness required it to do a small job.

Edward Kennedy, a chef, . stated that he was with accused on the night of January 20. They met a Jew minutes after 3 o'clock and after a-few drinks at The Masonic Hotel, went up to Mhe-RecordTßeign. reaching there, about .5145. . .They had a drink there’- and a,lso . stopped j for., .dinner. At the Afas'onie previously accused bought a hottlpVof whisky and witness was carrying this. Alter dinner they walkedvdown. Gladstone.. rend, witness still having the w.hislcy in bis hip pocket - . . Witness stopped to look in a shop window and when ho looked nronnd again ho saw accused entering a place' on the opposite .side of the road,.this proving to be AUs. Horne s house. Witness, followed in, thinking Fish must -know the people. When witness reached the hack door, he heard accused ask for. a drink of water. He was just'inside a porch or scullery there. The person inside did not appear too keen on giving accused a drink and Fish thereupon said he thought he had every right to ask for a drink of waterJf he wanted one. -Witness called to accused to como away, hut received no answer. 1 There was further argument between Fish and Stevenson as to the, drink of water, Stevenson oveUtually ordering accused out and starting to p.fln' him out a side-door. Witness rhen caught Fish . round the waist and attempted to pidl him out, with the assistance-,of Srbvqnson’s pushing.

They "got him practically -out nnd.SteRhnt'the door, but apparently -•v jammed Fish’s tpe -in the door, for Xiccused called out. Witness released ) him then. There was nothing very violent nhont the struggle, though witness received n hit of n knock. He heard Mrs. Horne, call out to get the police. At that time accused was very drunk, hut witness, while not strictly sober, was not really drunk. •Stevenson then told witness he should get accused away. Mrs. Horne meanwhile,..was saying, “Get _ .the police,” and witness suggested Stevenson should do so. He montipnod also that he thought * Fish Had 'made a mistake yas*' to the- house. . Thinking the stniggling was merely excinng Fish -further, witness went /to the, front of the house.' Shortly after accused came hurriedly round the. side of the house with a hammer in his hand, saving: “Look what they tried to hit m 0 with.” Witness did not answer, but wont round to the hack to'see what had happened. He found Airs. Horne lying on the ground and he assisted her on to the porch. When he asked her what had happened, she merely replied, "Get the other hoy home and please go yourself.’ ness then left and walked’down to the corner of the. mad where he met Stevenson who said the police were coming. Looking for accused,, ho eventually found him coming - along Cobden street. Witness bad “planted” the bottle of whisky behind the Royal Hotel; believing that, Fish had had enough. He then tried to persuade accused, to cotne home, F'sh agreeing but first" asking for tin; ,•*>*- tie of whisky j They went round and picked up . the bottle, witness giving , it to accused. Fish went into the \ Hoyal Hotel and witness followed in or der to get him to come home. Though witness tried to explain that he thought accused had got into some did not appear to realise it. When Constable McKenzie and Stevenson came in, witness.heard the. latter say: >Tlmt is the man.” They went to the station and there.he. .saw' a hammer taken from Fish’s pocket. ■ y ■' a ■. . . Mr. Brosnnjian': JAjcl vpu see Fish with a, cup in liis-.haxiilp.,.. . •• • • Witness: Yes, when he ; was tallnng

to Stevenson. ' Were they* then arguing about (lie drfnk or water ?—AYes.i: • _ ■ ! } Wn -you ifirst found M™.. ; Hojpe on- the ,f/ V n "" shouldn’t. I,aVO ot.moc ym Mrs Horne said that yon did. J don’t remember laying anything hkp When arrived at the. Royal did*' .Fish say, any tiling about being hit' by a' !hammer ?-No • "What has the : hammer got to Jo with' B?”‘asked’His Honor. Me

have heard ft great deal about this liammer, and I do not ■ see that it matters in the slightest. Even if the olcl lady got tlie hammer and cracked the prisoner ion the head -withwit’, I shall tell the jury that lie simply got what ho deserved. He- was a trespasser and*she could have taken an axe to hini’ if she had, liked. Then I would tell/ the ; jury ■ just the same. All he could do was to .run away, and that’s all there is to it.”

Mr. Brosnahan pointed out that the use of. the hammer might he a mitigaring-factor so far as the assault was concerned.

His Honor replied that, it would still he an assault and, if it was the cause of the injuries sustained by the old lady, then if was -the form of assault with which the prisoner was charged, an assault,' causing actual bodily harm. Constable McKenzie, stated that, ’n consequence of a complaint from Mrs. Horne, he went in search of accused. Accompanied by Stevenson, witness went into the Royal Hotel and found ■Fish there,; ’.. • • ’

Giving an explanation at the station, Fish said that Mrs. Horne came at him with a liammer and; during tbo scuffle, the old lady fell to the ground, sustaining the injuries previously described.

This concluded the evidence for the Crown.

Accused, in the witness-box, stated that Kennedy's description of their movements on the evening of January 20 was correct. Tic went into the house to obtain a drink of water, as his month was very parched. Stevenson came to the door and was very antagonistic from the start, though lie eventually produced a tin mug. Accused had four or five drinks of. water after being pulled out of the door. He was about in leave the premises when ho saw Mrs. TTorno coming across the inner room. Mrs. Horne began screaming at him, as he made his. way round the house. .Accused hesitated at the corner, for he was not, certain of the way, and then he saw Alt's.Horne coming at him with an upraised hammer. He was uncertain what to do and, as he hesitated, she reached him. As she raised the hammer, he caught hold of it and she helcT on to It with both hands. Finding he couldn’t get it away with one hand, accused then put both hands to it and wrenched it away. Afrs. Horne overbalanced and fell heavily. At no stage did he strike her and he had no special grievance against her. for he badn f seen her before.

Mr Nolan : Kennedy says you were so drunk yon didn’t know you .wore in trouble ?

AYitness: T didn’t-know the old lady was hurt, or I would have helped her. You were quite drunk?— 1 had been drinking since 10 that morning. Amu had a clear recollection of ail the events that, happened?—Not all of them.

So this old lady of 70 was s o powerful you had to use two hands to get the hammer away from her? A es. When she fell you didn’t wait.No, I went out. When Constable McKenzie eame •nto the hotel, you said Tra caught” ? Yes, hut that , was in reply to. a question from the constable ns to what I was doing in the hotel. I t°ld him T had come in for a drink.

But you had a bottle in you. pocket?—lt wasn’t opened. You tend to'fight when y°u have a few drinks?—l had one fight here with a boxer on Kniti bridge when I had only one hand. This closed the evidence. Addressing the jury, Air. Brosnahan contended that Airs. Horne’s story of two blows was entirely uihrensonab e > for surely one blow would have sufficed to knock such an old lady down. There was corroboration of accused s story in the evidence of Kennedy, as to accused coming round the corner with the hammer, saying they had attempted to strike him with this. Could a drunken man have concocted .such a story in a brief time? ' Summing up, His Honor pointed out that the present charge, of assault was more serious than a charge ° common assault. There could lie no doubt as to the fact of the woman sustaining the injuries, and if these were due/to any. act of accused then lie was guilty of the crime with which lie was charged. Some .question had been raised as to the,brittle state of the hones of an elderly person, hut that had nothing to do .with the. case, though f it was always open to the. jury to firing in a verdict of common'assault. The defence as he understood it was that this man came in thirsty, as one from, the desert, lie hack.asked very politely, of,course, for a 'drink of water,, and then the. old Indy had..attacked him with a hammer. From the evidence it seemed that accused came there, virtually took charge of .i-ho place and made a first-class nuisance of himself.. , Because. .she jhaci attacked him, accused claimed, he-.-Was entitled to use force to take tlio hammer away, from her and throw her to the ground. Even if accused.’s' story wore assumed., to he true, he was still a •trespasser.,; and the old lady was entitled to take a hammer to him, or an axe if she likccl. Accused’s ; ’ duty was simply - • to g° awayhut apparently aided liy Dutch courage'instilled by liquor, he fought ',with her and injured her. On the accused’s own story, then, he was .•’clearly' 'guilty, for by using force- 'to

take away the hammer from her he had assaulted her, and the injuries she suffered ; were directly due to that assault.

The Grown case, added His Honor, was that the accused, resented, being told to go away, that be came back a lid that he struck her two blows, probably a loft and right. f l lie defence suggested that she received one bLow, walked away, then came back and received another, but she had stated she received two blows in quick succession. In all cases the onus was on tlio Crown to prove its case, but in this case there was no doubt that the old lady received the injuries and that those were duo to accused's handling of her. However they occurred, on accused’s own admission, it scorned that what ho had done amounted at law to assault causing actual bodily harm.

The jury retired at 1t.50 a.in. and returned at 2.30 with a verdict of guilty.

Tiie. prisoner was remanded until to-dav for sentence.