FIGHT CHARGE FAILS.

Hawera Star, Volume XLVII, 21 December 1927, Page 9

FIGHT CHARGE FAILS.

INFORMATION DISMISSFD. COUNSEL’S SUCCESSFUL DEFENCE "Not guilty,” said Mr A. K. North in the Hawera Court to-day in commencing a defence on behalf of Cecil Heighton, garage proprietor, of Hawera, who, was charged before Mir G. H. Bucke,ridge, J.P., with fighting in a, public place at about 7 o’clock on Monday evening. The hearing of the charge had been adjourned yesterday, when, arising out of the same circumstances, John Swinburn pleaded guilty and was fined £1 on a similar charge. After lengthy evidence, had been presented to-day the information was dismissed.

The prosecution was conducted by Sergeant J. Henry, who, commenced by outlining the facts as presented yesterday, when the charge against Swinburn was dealt with by Air L. A. Bone, J.P. In evidence John Swinburn said he had taken a car to Heighto-n’s garage and after certain work liad been done lie was informed by Heighton that the bill was 2s 6d. ’Witness had asked Heighton to charge the amount to the account of his (witness’s) brother, to whom Heighton owed a small sum. Heighton had objected to the suggestion and used a, certain term at the samei time offering to fight witness. They went into tiie garage where the fight had taken place anti later, when witness was proceeding to drive away, Heighton tooK the jaok of the car and the light was continued in the street. OFFERED AND AGQEPTED. Mr North: Heighten says the charge was, 12$, 6d. —i ueuy that. You wanted him to charge the amount to your brother's account, enough there was no contract between Txeignton and your brother, and Heighton objected?—Yes. Do you deny you knocked Heighton down in the garage 'i —-No- That was done during the fight. You say lie used language to you ? Yes. Lid you then hit him ?—No. The fight was offered and accepted. You say that alter the affair in the garage you went out to’ get into the car and lie then seized the jack. Did you fiat him then?—No. X wrestled with him.

Did you know that the repairs gave Heighton a lien on the car.-—No. Re-examined by Sergeant Henry, witness said that the blow referred to by counsel when Heighton Xiad been knocked down had taken place during the fight. It was the objectionable name used by Heighton which had caused the fight.

Harry Edward Swinburn gave evi deuce that he had asked his brother to instruct Heighton to charge the repairs to witness©’s account as an offset against 10s owing by Heighton. Lons c able Mullan deposed to having seen Heighton and John Swinburn exchanging blows on the footpath. "I saw at least four blows struck while they were on the footpath,” said witness. AN EYE WITNESS. Gordon McLeod, employee in a bottling store, was the first witness called for the defence. Ho said he had gone to Heigh ton’s garage at about 4.30 and found him repairing the car in question. Witness went away and on returning an hour later found 'Heighton still working on the car. Witness went away for tea and coining to the garage again at about 7 o’clock' saw Heigiiton and Swinburn standing by the car outside the garage. Heighton had a jack in liis hand and witness saw Swinburn strike Heighten, the latter falling to the ground. Heighton endeavoured to. run inside the garage, but was stopped by Swinburn, ivho grabbed him by the head. “I didn’t want to, interfere, but went, for the police,” vsaid witness. Sergeant Henry: Did you think that Heighton should have been arrestedf— No,

Then why didn’t you say so to the police?—l didn’t think it wa.si my place to push, my frame in. You didn’t see Heighton strike Swinburn ?—No.

"Heighton and .1 are not friends,’' said witness’ in answer to another question.

Questioned at length by the Sergeant as to whethetr he had discussed the fight with Heighton, witness finally admitted he had done so. Evidence that at about 9 o’clock on Monday evening lie had examined defendant, was given by Dr. R. G. B. Sinclair, who said the former’s condition was consistent with him having been in a fight. Defendant had sustained facial injuries, including a lump on the forehead, a swollen nose, which witness suspected was broken, marks on the left cheek, and a cut over the left eye, while both eyes were blackened. DEFENDANT’S VERSION. Defendant contended in evidence that he had been engaged for two and a half hours on the car and the bill amounted to 12s 6d. Defendant had told Swinburn this and when the latter said lie wished it to.’ be charged to his brother defendant had refused. A discussion followed and defendant was struck by Swinburn. Defendant would deny he had used any objectionable terms. Defendant was standing just outside the garage with the jack in his hand when the blow wa,s struck. The blow felled him at the garage door. He then tried to go’ to the hack of the garage, but was hauled back by Swinburn. Matters then became confused and defendant could not recollect whether or not be struck Swinburn. To’ Sergeant Henry defendant said the reason hits coat bad been taken off was because after returning from tea he had intended continuing tne workon the ear. Sergeant Henry : Were you not convicted a year ago yesterday for disorderly conduct? Mr North: That has nothing to do with the case. The bench agreed. The Sergeant was proceeding with further queries regarding the point when counsel again objected and said that the Sergeant was flouting the court. Sergeant. Henry : Does your worship decline to allow proof of a previous conviction. on a’ similar offence? The bench : I have already given a decision on the point. CONTENTION UPHELD. Addressing the court, Mr North submitted that in the garage there had been a. savage assault which would probably be the subject of further proceedings. This l , however, did not affect the charge of fighting in a public place. He contended that the only evidence adduced in this respect was that of wrestling on the footpath. 'To constitute a fight, in the legal interpretation both persons, must have, willingly engaged in the encounter. So far as the present allegation of fighting was concerned all that had been bhown was

that defendant had been engaged' m a scuffle while endeavouring to prevent the removal of property over which he had certain rights until the hill was paid. “If one man endeavours- to retain his property and another wrestles with him, the latter is guilty o-f assault -and in that case there is no fight in the legal sense,” said counsel. Sergeant Henry : Constable JMullan has sworn that he saw blows exchanged on the footpath. Reviewing the evidence the bench held that defendant had been justified in taking possesion of a certain portion of the car and ihe facts concerning the souffle in the street were consistent with defendant having tried to retain the property. In the opinion of the bench the evidence was not sufficient to enter a conviction on the charge- of fighting in a public place and the information would therefore be dismissed.