F. A. M'MINN SENT TO GAOL.

Marlborough Express, Volume XLIV, Issue 95, 28 April 1910, Page 3

F. A. M'MINN SENT TO GAOL.

AND FINED FIVE POUNDS

OUTCOME OF THE POWELKA

SEARCH

CONDUCT "OUTRAGEOUS."

(N.Z. Tjme;; Correspondent.)

PALMERSTON N., April 26. When the court resumed this morning to deal with the sticking-up cases against Francis Alexander (known as "Faddy") McMinn there was an interested crowd present. Mr A. D. Thomson, S.M., first delivered his judgment in the Xaybourne case—a charge of common assault against McMinn, heard the previous day. His Worship said a technical assault had been admitted. A constable was justified in using firearms to effect an arrest for a crime when otherwise the arrest could not be made, but a private person had no such authority. His only justification for having recourse to firearms was selfdefence, and there was no evidence in the present case that defendant was at any time in danger. Defendant called on Laybourne to stop and covered him with his revolver. That was a very serious thing to do and might have led to grave consequences. The more serious allegation, however, was that the defendant announced himself as Powelka. The defendant on oath denied that he did so; and that was really the only matter in dispute. He was not satisfied that defendant did say he was Powelka. Both agreed that Powelka's name was mentioned, but by Laybourne only. The conduct of the defendant before and after the occurrence seemed altogether opposed to the idea that he was masquerading as Powelka. He had been out all that day with the approval of the police, searching for Powelka. Defendant was justified in satisfying himself by legitimate means as to the identity of any suspicious person. In these circumstances he was passed by a man riding a bicycle without a light, though it was fairly dark. The man had on short leggings, or gaiters, and it was supposed that Powelka had somewhat similar leggings and rode a bicycle. The man turned up a private lane and there occurred the incident with -the revolver. Laybourne admitted that defendant had a good look in his face and then walked away, apparently careless of what Laybourne did. Such conduct appeared to fit in better with defendant's statement that he was merely satisfying himself that the unknown man was not Powelka than with the other view. Defendant must be convicted of assault, but without the aggravating element alleged, viz., that he announced himself as Powelka. Even such a use of firearms as was admitted, however, was_ a I serious matter, and while recognising! that there had been recent occurrences which justified approved searchers in carrying firearms., his Worship said he must also make it plain that they were not to be used or even threatened thereby. Defendant was fined £5. THE PRATT CASE. McMinn was then charged with having assaulted Edwin Pratt on the night of April 11th. He pleaded not guilty. Mr Cooper (for McMinn) said he was willing to plead guilty to a technical assault. Mr Loughnan (for the prosecution) said the reason for Roing on with the case was that there could be no suggestion that there was a bona fide attempt to apprehend Powelka. Edwin Pratt, barber, said that on cycling home someone hailed him and ordered, him to dismount and put his hands up. He got off the bicycle and walked over to the man, whom he recognised and addressed with: "What's the matter, Paddy? What are you trying to frighten a man like that for?" Defendant said nothing, I but walked towards him, and when he got close ho said, "Oh, you'ro all

right." He had previously sune out "•Hold up your — hands," potnS a revolver at witness the while. The : command was followed by, "Or I'll blow your brains out." Witness . said, "What's up, Paddy?" He did I put up his hands. He did not have a. . bicycle light when he was accosted. ! As soon as McMinn put up the weapon witness recognised him. He had ' known defendant a few years. De- | fendant was nine or ten yards away when witness dismounted from his bicycle. He thought McMinn was somewhat under the influence of liquor at the time. To Mr Cooper: His acquaintance I with McMinn was nothing more than | an occasional one. j John Frederick Manning, bailiff, ; said he saw defendant in the vicinity cf Shields' house on the night of the 11th. McMinn was excited, and had a revolver. He said he had been out after Powelka and would "have him." Witness formed the opinion that the defendant had been drinking. It was ■about 7.30 when he saw McMinn. To Mr Cooper: He had known McMinn for a good many years. He knew nothing against him and thought he was "a good fellow, and a fairly I popular man., particularly among | footballers." Frank Slattery, butcher, who in the morning commenced to search with McMinn, gave evidence that he had pre-arranged to meet him ■ ■■■<:■ the corner of Ferguson and East Streets at 6.30 that evening. FACTS NOT DISPUTED. Mr Cooper said there was no dispute respecting the facts. The only diu-erence in this case and the other was that a certain amount of "language ' was alleged to have been used in Iratts case,, but that was not serious. McMinn did not recognise Iratt until Pratt got close to him. In every other respect his statement exactly confirmed that of the prosecution. McMinn had seen Pratt coming and thought he should see who the person was. His Worship: I think it is a very different case from the other, and I am quite willing to hear defendant if you wish to call him. McMINN'S EVIDENCE. — McMinn was ; called, and his evidence in Laybourne's case was taken, (without repetition) as applicable up to the point where McMinn was at the corner of East and Ferguson btreets at 6.30 McMinn proceeded to say that he saw a man cycling along, *™ «not , re9°gnising him, called "Challenge! Stop!" When the man stopped he went up to him and remarked: "Oh, it's you; it's all right." He had had three or four drinks through the day (between four and nye o clock), but was perfectly sober when he saw Pratt, -and he knew what hewas doing. He was trying to do his duty to the best of" his ability. To Mr Loughnan: There was nothing particular in Pratt's appearance which looked suspicious. He did think it was his duty to bail up anyone who refused to hold up their hands, and also to threaten to blow their brains .out. He did not think he used the ' language Pratt attributed to him. He did not have any drink between the time of seeing Pratt and seeing Manning. To Mr Cooper: He had had no wrong intentions when scouting. That concluded the defence. His Worship: I can't see any extenuating circumstances in this case, Mr Cooper. I will hear what you have to say. ADDRESS BY COUNSEL. Mr Cooper said that in botli cases there was a sticking-up and an ascertaining of who was stuck up. His Worship had McMinn's oath that he did those acts without any intention of doing any harm to the persons stuck up. No doubt there was nervousness, and people's minds were inflamed, and he did not see why a thihg which would probably have passed unnoticed at any other time should be considered according to the inflamed minds of the people at the time. He would like it to be taken into consideration that McMinn was a married man with five children,. Also, there was absolutely nothing against him, and, according to Manning's evidence, he was a man well and favourably ,known. Further, his Worship should remember that he had already sentenced McMinn to pay a fine of £5. Again, there was the. fact that no harm had been done toPratt. Pratt by his demeanour in" the box did not appear to have been frightened or to have treated the affair other than lightly, and McMinn apparently went up and saw who it was and at once said: "Oh, you're all right." He submitted that McMinn rightly thought that he was doing what was right and proper, and what he thought he was entitled to do. As his Worship had pointed out in respect of Laybourne's case, McMinn knew perfectly well what he was doing. There was no evidence to say that McMinn was parading about in a state of drunkenness. He was a man who had given up a whole day's work to help the community, and, unfortunately, towards evening had gone a little too far. Counsel asked his Worship to take into consideration the entire absence of intention to do wrong, also his absolute frankness and his absolute honesty of purpose. There was obviously no intent to do harm to anybody, and if the occurrence had been at any other time it was improbable that there would have been so much notice taken of it. He recognised, and McMinn, too, recognised now, that McMinn had no right to stick up a person and threaten to blow out his brains, and that the affair was a serious matter. But if it was taken into consideration that others were out looking for Powelka, and the other surrounding circumstances were considered, his Worship would find that the defendant's offence was not of a nature that was , really criminal. ONE MONTHS' IMPRISONMENT. His Worship said he regretted exceedingly that one who had been helping the police should have allowed himself to get into such a condition that he acted as McMinn did act which condition was the cause of the^ act. He was prepared to take intoconsideration what McMinn had don& as a searcher, and that the defendant was apparently still acting with a view of assisting the police. There were no extenuating circumstances, beoynd that the defendant had been assisting the police and was still in a sense assisting them. His conduct had been outrageous, and that was plain to anyone. The only thing his Worship could do was to reduce the punishment. McMinn would be sentenced to imprisonment with hard labour for one month. On hearing the sentence, McMinn got up and walked straight over to a couple of police constables, one of whom accompanied him immediately: out of the Court.