SUPREME COURT.—Monday.

New Zealand Herald, Volume I, Issue 274, 28 September 1864, Page 5

SUPREME COURT.—Monday.

CRIMINAL SITTINGS. fJSol'ore His Honor (lie Chief Justice."! llUK.U'll 111-' TllE JIKItCttANT Sll U'PJNG ACT. Ujion Hie re-asseinl>ling of Uie Court, l'eter Ilenly was charged under tlio 17111 and ISth Yict., ilui) . 10-1-, clause 3D, which recites " That, any master, any seaman, or apprentice belonging to a British ship, who shall, by a breach of duly, or neglect of duty, or by reason of drunkenness, commit any wilful act to the danger of the ship, or the life and limb of any person in her, shall be adjudged guilty of a misdemeanor." Air. Merriman appeared for the prosecution. The prisoner was undefended. l*'roni 1 lie statement of counsel, it appeared that the ship 'Annie .Laurie' sailed from Glasgow in February last. 'l'hat on the 17th of July, while iu latitude -1-3.U1, S. longitude 100 K, the prisoner was chief otlicer of the watch, and that he lmd put a bov to the wheel, contrary to the express orders of the captain, who desired that tlio lad should not be allowed to go near the wheel in heavy weather, owing to the very bad state of the rudder head. The details will be best gathered from the evidence which we give at length. Ai atthew iiced examined by M r. M ernni:tn : lam the master of the ship ' Annie Laurie.' She is owned by persons in Great JJritain. On the 22nd of February we left Glasgow for this port. The prisoner was an articled seaman, in the capacity of mate. [Articles handed iu.j He acted as mate a portion of the voyage. His Honor : I cannot receive any evidence in this matter until it is lirst shewn that this was a British ship. Have you the register, Captain Keed '? Witness : No ; it is in the town. Air. Alcrrimai!: 1 beg your Honor's pardon. I fear 1 have put the cart before the horse. ilis Honor : Say rather, Mr. -Merriman, that you have put the foresail before the jib. Witness : 1 can swear that she is owned by British subjects. His Honor: I think you had better proceed with the corpus flclicii or facts of the charge, and cause tileregister to be sent for. Although I am hi' no means certain that the register will bo sufficient. The register nitty not tell us anything about changes of owners Section the lUth describes, or rather defines, what the statute means by a British ship. It distinctly states that no ship shall be deemed a British ship unless she be wholly owned by certain classes of persons—for instance, she must be wholly owned by British born subjects, or persons having letters of naturalization or denization issued by the legislative bodies corporate, who with their surveyors and others may give a certilicate. jixamination continued: The prisoner tided as mate, in the month ol July we were in latitude -13 ° 31 S., about lljli l'j. longitude. On the 17th July it was blowing hard from the N.E, with a heavy cross sea. 1 was badly obliged to keep to my cabin at times. It was about 7 o'clock in the evening. I lieard the wheel chains rattling to und fro. 1 knew that the helm must have been let go. I ran on dork. The mate (prisoner) was in charge ol' the ship. When 1 came en deck L lound the bov John Macfurhme hanging on to the weatlu-r rail close to the wheel. The prisoner had hold of the helm. 1 saw him, however, run alt. I told him the wheel had been let go. lie replied that it had not been let go. 1 told him to send another man to the helm. JJe said that he would not, that he would take charge of it himself. The bov Maefarlane went forward. 1 told him repeatedly not to allow the boy to go to the helm in' heavy weather, owing to the state that her rudder-head was in. 'J here were two able seamen in the mate's watch and two ordinaries. The prisoner was otlicer oi' the watch, ilis watch lasted until 8 o'clock. An hour alter that it was very unsettled wrat her. Tin* consequence to the ship wasthe greatest danger, and to all hands besides. The letting <jo of the wheel tended to the serious damage of the ship. The boy Maefarlanc was not qualified to take charge of the wheel owing to the state of the rudder. That weather continued for some time. 1 am quite certain I gave the prisoner positive orders not to put the boy Maefarlane to the wheel. John Maefarlane, examined by Air. Merriman : I am an ordinary seaman on board the ' Annie Laurie.' Was so on lite l/l h of July Jaat. fc>hc was out at sea. On the evening ol' that day the prisoner gave me no orders as to going to (lie wheel. Jle hud charge of the deck. It was very heavy weather. Wo were under close-reefed topsails and fore topmast staysail. .1 went to the wheel. I relieved a man named William Todd, an able seaman. About an hour after 1 relieved him the ship took a very heavy lurch, she was labouring before 1 relieved him. X was knocked from the wheel, and the roil of the ship knocked me over to the weather rail from the leeward. I ran and caught the wheel again. The chief ollieer (prisoner) came running ait, and asked me what was tlie matter. 1 had been an hour at the wheel. The jirisoner was in charge of the deck at the time. 1 told him <c she knocked mo from her." The captain came running out then. Jle came /row below. lie said to the mate, " I am sure L told you not to let; the boy go to the wheel iu such heavy weather as this." lie said to the chief ofiicer the wheel had been let go. The prisoner said, " liather than there shall be any "bother, 1 will take the wheel myselt." The captain then went down below. Cross-examined by the prisoner: You were two or three minutes aft before the captain came up. Kxamination resumed: Prisoner was at the pump belore he came to the wheel. The roll of the ship threw me to windward. The wheel chains going through the iron blocks would make r- noise, though the wheel was not let go. The main-topmast staysail was not set. fc?ho was going- through the water about one or one and a half knots. I took my regular trick at the helm along with the other men ail the passage out. I took the wheel alter prisoner was confined to his room by the captain, it did not blow so hard again after that for about- ten day.s. I took my turn at the wheel during those ten days. We were then running from time to eight knots. Jiy Mr. Merriman: i once heard the captain give orders to the prisoner not to allow me to go to the wheel at night as it would endanger the livos of all hands. It was not heavy weather when tlio captain ordered me to take the wheel. Thero was breeze — wo were going six or seven knots. The captainnever sent me to the wheel in heavy weather, lie was seldom on deck in heavy weather. The captain suffered from very ill health on the voyage. James Wilson, sworn, stated: 1 was steward on board tho ' Anue Lour it?/ from Glasgow to Auckland

I often heard ilie captain give orders relative to putting the boy Maefarlane to tho wheel. I recollect tbe evening of the lGth July. 1 was then in the captain's state-room, giving him some arrowroot. lie was ill in bed. 1 heard the rudder chains rattling much mora than usual. I immediately rushed ou deck before the captain. The captaiu followed close behind me in undress. Ou reaching tho poop-deck, I saw the prisoner, going to the wheel on the port side. That was the fee side. There was no one at the wheel , J-' 10 hoy was struggling to get back to the wheel, from the starboard side. I allowed the captain to pass aft fceforo me. He said to the pris oner, "Mr Henry, that wheel lias been let go. I thought 1 liavo told you over and over again not tc let that boy go to the wheel, in heavy weather." Prisoner replied, the wheel has not been let go. Captain replied, do yon mean to tell me a lie. A second time tho prisoner said, the wheel has not been lot. go Ihe captain then said, send one of the men to tho wheel. The prisoner said ho would take it himself, for the time being from six to eight o'clock. I never heard the prisoner order the boy to go to the wheel. I did not hear him give any order that evening. lam quite sure, there was no one at the wheel when I came on deck. Cross-exauiinecl by the prisoner: You were making from the pump on the port side, when I came on dock, it was dark and raining very heavily. I could see what took place. Tho captain was ou deck twice that day. He tried to take the sun. The captain gave orders to shorten sail. 1 don't think the captain stood on deck, until the ship was reefed down. 1 have heard the captain many times tell you that he was ill. 1 did not recollect the captain striking you, on any previous day. The captain sent me on deck to shut the companion, and 1 did so. W hen I came down, the captain was standing against the cabin table. He was not ill your room. I did not see liim striking you. I .saw blood on your upper bp. -ii ihe captain of the 'Annie Laurie ' re-examined, staled: This document (produced) is the registry certificate of the ship 'Annie Laurie.' I got this from the owners of the vessel, when I took command ol her. This is a registrar, in accordance with the Merchants Shipping Act. It purports to be certified by the registrar of British ships, at Glasgow, Frederick j'revoi. 'ihere are several endorsements on the back, the last*, of which shew, that on the 20th of February, two days before tho ship sailed, she belonged to British subjects, and consequently, was a British ship. His Honor: I shall admit this document as jn-ima faci"' evidence that this ship is a bouu fhlo ship. Cross-examined by the prisoner:' I was on deck twice on tho 17th. 1 believe I shortened sail on that day. 1 took the sun that day about half-past eight a.m. I was on deck also at noon. Prisoner : That was three times. Captain : I have frequently told you I was badly. On several occasions I have tolJ you not to put tho "boy at the helm in heavy weather. 1 have taken tho boy from the helm in your presence and put a man to it. The hoy did not ship asublcseaman,but as anordiuary seaman, so did not ship to take his trick at the helm on all occasions. Onthe 18th 1 wioto the occurrence down in tho official log, and read it to you about 4 o'clock. By the Court: Any offence of this kind is put down in the log, and thu offender sludl bo furnished with a copy ot the entry, and may make any reply he likes, and then an entry shall bo made before witnesses of all the circumstances. 1 produce the ollicial log, and oil Sunday, July 17, which is a nnrativo of what took place that day. By the prisoner : This entry wasread to you < n the 18th, in the atternoon. I put you i.n your room on the ihtli. I was not able to strike any one. 1 was scarcely able to stand. 1 did not strike you. By the Court: Ihe rudder-head was gone, and tho letting go of tho wheel was likely to twist the head off altogether. The state of the rudder is generully known by the seamen and oiiieers of the ship. Tho prisoner was perfectly aware that the rudder-head was in a bad state. lam not aware how lon«- tho prisoner has boon in the service. I engaged him myself. The prisoner, in his defence, stated:—l, Peter llenry, late mate of the Annie Laurie, beg to state that. Captain Beed did uso ahusi.e and insultin" language to me. I was obliged, for my own safety, to retire to my cabin, into which tho captain cam-i wilh his brother-in-law, Archibald Johnson, as he wished to speak to me in private. At the time tho steward was below, and tho captain ordered him on deck to shut the hatch, so that the crew should not hear, what was going ou. He then took me by the arm and struck mo on the litce repeatedly, from which I lost a great deal of blood ; he also loft my left shoulder so much soro that! can scarcely move my left arm with Uio blows, and lamin a very weak state at. present. He ordered mo to be put in irons, but tho crew would not obey him. 1 was then confined to my room for the remainder of tho voyage. My whole allowance was four buiscuits, and half a gallon of water per day. This all occurred on the lhtli July, ISG-t.. For tho defence tiie prisoner called— James M'Donald, who, being sworn, stilted: I saw no blood on your face ou tho 18th July. Tho captain called us all aft. I was relieved from the wheel at twelve o'clock. We were at dinner. We went alt. Tho captain told us he was going tu make tho mate a prisoner, for he could not put up with his conduct any longer. Tho prisoner was in his cabin, and could hear what took place. The captain then read the log before all hands. I was not able to stand, being very ill at the time, so 1 walked awav forward tuul lelt the captain and the remainder. I saw no blows struck. Jhe prisoner was in his cabin, and the captain was standing,at the table when 1 >vent below. Had there been any blows it must have boeu before we came aft. I did not-hoar the prisoner complain at that time that he had been struck, lsaw.no bruises on his lace. I took no notice, as he was in his cabin. By the prisoner : I saw no "blood on your face. Tho door was jiartly open, but 1 did not see you. I signed tho log. It was about half an hour after you were in confinement that the log was read. I never spoke of irons at all. The captain asked the steward and second mate to put you in irons. I heard tho log road on the ISth. I signed tho log. Tho captain asked if you had any answer 10 make, and you Kiid No." Be then asked if it was correct, and you said " Yes." Tho steward recalled: I did not see the captain strike the prisoner. 1 only saw a small spot of blood like what would be produced by the scratch of a pin. The lip was not swollen. I saw tho prisoner wash his face. The captain's brother-in-law was standing lit tho door of his own cabiu. The captain asked the second mate anil me to put him in irons, when lie drew out a sailor's knife out ol' his pocket, and said no ! you shall not put me in irons. The captaiu said 1 insist upon it. 1 attempted to do so, but could not talco his hands. I then told liim to- put away that knife. The prisoner said ho was not going to use it, and then put it away. Tho captain said let it be so, we will confine him, and put a bar across tho door. Tho carpenter made tho bar, tho second mate put it on, and I looked the door. By tho prisoner: You had a knife in your hands. I locked the door. I gave you bread and water. You were put in I should think a few minutes past twelve. The door was opened to read the log. By liis Honor : AVo arrived in port on the 30th of July. The prisoner was kept on one pound of bread and half a gallon of water per day during that time. Tho Captain recalled : 1 made a mistake. It was was on tho IStli the prisoner was confined, and on the l'Jth the log was read. Mr. Merriinan addressed the jury in a short, speech. llis Honor then summtd lip, reading over the evidence, and making very lew remarks. The jury then retired, and after an absence of about ten minutes, returned a verdict of guilty, but ill consequence of the prisoner being in confinement and led on broad and water during tho remainder of the voyage, they would recommend that his Honor shuld deal with it as leniently as possible. His Honor, in passing sentence, stated that the prisoner had done an act which endangered the ship, and also that tho captain had exercised a proper discretion in not proceeding to extremity but ill applying to a Court of Justice. The scnteneo of the Court is," that you be kept to hard labor for three calendar months," to commence from tho first day of this session. Tuesday. llis Honor took his seat ou the Bench at 11) o'clock. ASSAUI.T OX THE 111(1 K SEAS. Thomas Gay, captain of the bitrt-|iie 'Bessie,' and William Gay, mate of the same vessel were indicted lor that they did on the luth July, lStil, while on tho high seas, beat, wound, and otherwise ill-treat, by sti iking him on the lace, putting a gag in his muitfli, and assault Charles Boyle, an able seaman in the said ship, against ihe peace of our Sovereign Lady tho Cit'.ea, xr.

Mr. Merriman and Mr. Brookfie id were counsel for tho prosecution. . Mr. Beveridgo and Mr. Wynn appeared for theprisoners. Tho following gentlemen were sworn jurymen James Gray Moppet (foreman), Alexander Mure* John Nicholson, William Chambers, William liobinson, Richard Davis, JDonald Maclean, John By croft* William Atkins, James Weare, John Edwards, and Thomas Herbert. Mr. Merriinan, in opening the case for the Crown, said, that although the prisoners might have been indicted upon charges involving a more serious amount of guilt, and a heavier punishment, that course had not been taken. Tho offence, therefore, with which the prisoners stood charged was that of assault, which amounted, in the eye of the law, to a misdemeanour, f l he charge, however, was still an exceedingly serious ono, and he felt sure that the jury would not grudge tho time and attention they would bestow upon its investigation. Although the powers placed by law in the hands of captains and mates of ships were very great; the discipline of the ship, and the preservation of law on the high seas, was the object for which the powers were given. Still there must be the protection of law hold over the seamen who are on board of ships, bo that the officers who are armed with such powers as the law confers may not abuse them, and the responsibility for such abuse as the indictment in this case indicates, must be sustained, or otherwise , thero would be no safety on the high seas for those whose profession it is to perform the labour neces- | sury in their navigation. | The learned counsel having recited the mam j features oi the caso, hoped that the jury would not allow themselves to be inllueuced by anything they I might have heard out of doors in connection with this | case, which caused some excitement at the time of t its occurrence, but would do their duty and return a | verdict in strict accordance with the evidence. Charles Jijyle, examined by ilr. JBrookiield : I am ; an able seaman. I was to on the 19th July—on board the barque ' Bessie,' now lying in Auckland harbour. J know the prisoners. Thomas Gay was captain, and V* illiam Gay was mate of that vessel, \Ve were on the high, seas on the 19th of July. The l:'st place w<- left was the island of JSihihu, one of the Squill Sea ] lands, which belongs to the captain. Our cargo consi ed of seventy mules. I was on deck during the u- g-watch, from four to six o'clock in tho evening. -1 i.e mate came and ordered us to feed tho live .stock, w;>ieh we did. The next order was to set the fore-topg Jlanfc sail. That was done. The next order was tu put a hank on the ilying-jib. Tint order was t> me. That order was given by the mate. J went to do it. I was out on the boom, and while 3 \wis out on the jib-boom, tho mate came ouat nd said lie would like to knock me overboard. I said, Here [ am." 110 came out on the jib-boom and threatened to shove me oft*. I said I was willing to go along with hini. The captain came on the forecastle and to:d the mate to order me alt to be put in irons. I said £'would not be put in irons. I gave the mate im palming needle and came on the weather side uf the deck. The mate came and seized me by the ncrktie. I said, " Hauds off/' and shoved him off. Tin- captain came and caught me by the leg and knocked mo on to the deck. Both of "them had a hold ot ;«e at that time. They were trying to put me in irons. The captain called the carpenter to lend a hand. I ■ cannot say whether the captain or the mate had irons in their hatids. I was being hauled by tim e men. Mr. Wynn applied to the Court to order the witnesses out of Court. The application was acceded. Witness: The captain ordered the mate to put the irons on me. He did so. They were handcuffs. X was ordered down to the lazarette. I obeyed that order. The lazarette is aft alongside the wheel. It is ten or twelve foot high from the lower hold, but at the Lime I was put in it was choked up with blocks, ropes, hay, sails, &t\ It was about four feet high and live feet long. I had not room to be fore and alt. I had to lie atlnvarc ships on ropes. Iliad only room to move on my hands, back, and belly. I was there lor sixteen days. When I was in the lazarette for about fifteen minutes the captain desired the carpenter to bring a bolt down with him. He did not .say what the bolt was for. The carpenter brought a boh but the captain said it was too big. The captain told the mute to get one. The mate was on the poop near tho hatchway of the lazarette. The captain was sitting in the house on deck, | close by the lazarette. The mate brought the bolt. (±>olt produced.) This is the bolt. The mate gave the bolt to the captain, who came down with it to the lazarette. He tried to get the bult into my mouth. He seized my hair with the leit hand. I held my head down. He tried to shove the bolt in my mouth with his right hand. He eould not get it in. I buried my face in the hay. He I pressed the bolt against my mouth, which I kept 1 closed. He coukl not manage it himself aud ho called the mate down to help him. The mate came down. By the mate I mean the other prisoner. "NY hen the mate came tho captain ordered the mate to take me by the hair of the head and open my I mouth. The mate did so. The captain 6truek mo in the mouth with the bolt and broke one of my i front teeth. The mate had hold of me at the timeThey got my mouth open. The captain next broke two others of my back teeth by thrusting the bolt into j my mouth. 1 was in a state of great pain and excitement so that I cannot tell how he dia this. The i captain aud mate together then lashed the bolt in my mouth by fastening it with a rope round the back of my head, I hey hauled it as tight as they could. It wi/s the captain who hauled it. The gag was uu mo : from a quarter to 6 o'clock till sometime in tb6» | lorcnoon watch the following day, a period of twelve i or tourtcen hours. I do not know what time the I gag was taken oil'. I should think about nine or ten ■ o'clock, as I was in such a state that I did not know ' anything. I was not quite sensible. The captain at length came down and cut it oil*. I think a seaman named i?rank Williams saw me with the gag in my mouth. The irons were still on me. After he cut the lashing oil*the gag he came and pulled my arms with t lie irons then yn me, so that 1 have no use of the right arm now j he gave me great pain. His Honor: The man seems to be using his arm now. Witness to the Court: When I came ashore here I could no use it at all. I am getting better now, but 1 have not complete use of it. I was kept in irons from the 19th of July to the sth of August. J\lr. AVynn objected to any evidence being adduced of what occurred after the date mentioned in the indictment. The assault committed on the prosecutor h::d been minutely described, and was alleged to have occurred upon the 17th of July. If evidence were taken of what took place at a subsequent date, it would be impossible to know to what charge a prisoner should have to answer. 1 His Honor: Slight there not be circumstances showing aggravation. Mr. Wynn : Previously to the assault it might be perkctly corrcct. Had this been an action lor false imprisonment, the putting in his mouth an iron bolt might be proved an aggravation. It could not be aggravation of putting an iron bolt in his mouth to pui upon him a subsequent imprisonment. The (jntcamiii of the indictment is the assault with the bolt, the imprisonment might perhaps have been justified by circumstances. The allegation in the indictment is singular and definite. I submit that evidence should not be adduced of what might constitute a distinct otlence. His Honor thought that the prosecution should be careful of taking evidence of what occurred during the imprisonment. Witness: WhenT came ashore the captain offered me my wages if I would sign the log. I was a cripple on board the ship. He wanted me to sign clear of the sliip and take my wages. I refused. Mr. Hall, th« agent, also came on board and wanted me to settle matters with the captain. I refused. He said the captain would hand me over to the authorities. He did not state what for. An oiler was made to me in the Police Court of £o0 through Mr. Beveridgc. Cross-examined by Mr. W\ nn.: W r e seamen usually carry a knife. Wo have it in a sheath. . My knite was in my sheath. It was there when I was called aft. This is the knife, (knii'u produced). His Honor : Who produces that knile. Mr. Wynn : I hold the knife in my iiand. His Honor: llow can I put it down in evidence. Mr. Wynn : Well your Honor, I inust. His Honor : Really Mr. Wynn you will not overrule tile Court. It is certainly the first time in my whole experience ot twenty years, that a counsel should stand up and hold an article in Jtis hand, and decline to say where it came from. You cannot use that knife as evidence, unless you show that it is 1 some way connected with the ciLse, and inform the ; Court where it, came from and who produces it. Mr. Wynn : I got tho knife from the prisoner Thomas Gay, the captain. He produces the knife. I cannot pit; him in the witness-box. j lis Honor: Very weU, proceed, let us see what will become of it. Witnoss ; The knifo in my sheath. I did not

"havo it flourishing it *bcrat. I could not have done ; so. I was sent to do a job of ■work. I did not commence it, -when the mate came out and threatened to knock me overboard. Tho mate came out on the foot ropes. He said have'nt you finished yet. I cannot say how long it was between getting tho ■order to put tho hank on tho flying jib, and finishing it. I suppose to do such a job would take from twenty minutes to hnlf-an-hour. I had soveral jobs to do "at tho tamo. I cannot say whether an hour had passed. Thero were several jobs which took from . four to six o'clock. I got no other order oxcopt to coino in and go into irons. There might havo been an hour between putting on tho hank setting tho top-gallant sail and all. I do not remember doing anything' to deserve putting in irons. I don't know -whether I asked the prisoner why I was put in irons. I don't remember. I asked several times when I was steaming in the lazaretto. I did not ask them when I was on deck. The lazaretto is not above tho main deck. There is a poop to tho ship, where I was confined tho deck of the poop was about four feet high. I cannot say how high above tho main deck the poop deck is. I do noi know whether it is fifty feet. 1 do not remember whether I mado use of any language after I was put in tho lazarette. I could not speak to any body where I was. I coidd not seo unv body. I don't know. I don't remember whether I used foul or abusive language when in tho lazarette. Thero is only a bulk head between the Captain's cabin and where I was confined. I do not remember the Captain's making a remonstranco to mo about my language. I was not long in tho lazaretto when ho sent for the bolt. I was there between teu and fifteen minutes as near as I can recollect. The hatch was down all the time. I do not remember that I was swearing and cursing. I do not remember the Captain's saying that " If I did not shut up and stop that noiso he would come and make me." I might have said something, I am not exactly sure. The gag was put into my mouth so as to prevent me speaking. I could hardly get my breath. I don't recollect what I said to the Captain when he took the gag out of my mouth. Prom the lime the gag was put in my mouth in the evening, I swear it was not taken out till daylight next morning. .After the gag was put in my mouth I do not remember saying to the Captain " that is all I wanted, I -ivill make you pay for this." I could not speak. I remember saying something to him when I was down in irons. His Honor : It seems to be qxiite undecided whether the witness could speak when that bolt was in his mouth. It would not be amiss if some gentleman would fry it on you Mr. Wynn—(laughter.; Mr. Merriman: That has been suggested your Honor as an admirable test (loud laughter.) "Witness : The order was not simply " to go aft," but " to go aft and be put in irons." The irons were put on close by the mainmast. The Captain and mate hauled me to there. Then the irons were put on ; when I was in the fore-rigging the mate tried to get hold of me, and also when I came oil 1 the jibboom. I refused to go aft to bo put in irons. At that time I used no other words than " hands off." There was a man named Henry Potter, I do not know whether he was present. His Honor: Had you not better put tho particular language to him. You will perceive that il'you wish to discredit him you must put tho very words before him. I did not say "hands ofl'yot ." I had rot an open knife in my hand. 1 do not. recollect the Captain telling me to lay down the knife. Be never told mo sucli a thing, 1 swear it. The knife was taken from my sheath when they handed me aft. Qhe Captain said, look at the knife. The knife was in the sheath. I had a blue shirt, a belt, and a pair of moleskin trowsers. I do not, recollect calling the Captain a sea robber. The polite has had the custcely of this gag. So-examined by Mr. Bit ok field : I am quito sure I never flourished a naked knife on- either of-the priscnciß. 1 never did such n. thing in my life. The knife was in the sheath when the mate seized me by Ihn neck tie. The only order I received when coming < ff the jih-bocm was to " go aft and be put in irons." ] used due diligence to get the woik done. I tried all I could. His Honor: The steam fnm the mules nErd to come up irom below into the lazarette. There was no air, and I used to catch the air in my cap. Sometimes the hatch was raised totakoup sails, and sometimes the captain used to raiEe it a few inches, and put it down again when anybody camo to the; wheel. I used to stream with perspiration. Tho ship was in hot latitude at the time the, weather was very hot. Three teeth wero broken altogether, two back teeth and one front. When the weather was wet I used lo liar.d tho hatch ovci—it was down most of tho limo I was confined in the lazaretto. The placc where I lay was dote to the hatch. The captain asked me to come out and wash myself once a week, on a Sunday. I came out to wash myself. The Ce.urt adjourned for half an hour. Upon tho re-assembling of the Court, John Johnson, examined by Mr. Brcokfield : I am carpenter on board the ' Bessie.' I know the prisoners. I know the prosecutor. He was an able seaman cn board that ship. I recollect the 19th of July. The ship was on tic high seas. I Lo not know whether the ' Bessie' was a British ship. I recollect a disturbance on the 19th July, between prosecutor and the two prisoners. Charles Boyle was put in handcuffs—irons. The mate put the him. I do not think I heard anyone tell the mate to put the irons on the prosecutor. Tho captain and myself were lending a hand to put Boyle in irens. The captain ordered me to lend a hand. The prosecutor did not want to be put in irens, and he was trying to get clear. This happened abreast of the mainmast port side. He was forward by the cook's galley when 1 was first called to assist. The captain, mate, and myself brought him aft. He did not struggle much. We canied him. The captain took a knife from him. I could not say where the knife was. I think the captain took it out of prosecutor's pocket. It -w as shut when I saw it. The prosecutor was ordered by the captain and mate to go aft. Tliey had let him go. I did not hear them tell him to go anywhere else. He went aft. The next place 1 saw Boyle was in the lazarette. That was about five minutes afterwards. Thomas Gay, the captain, ordered me to fetch an iron bolt. He did not say for what he wanted the bolt. I did not fetch one. I went to look for one in the cabin, where we kept the iron bolts. The mate came and looked along with me. He had something like a bolt in hia hand, but I did not see whether he took it away with him, Tho lazarette where the man was put was about 3 feet G high, about 6 long, and 5 or 6 wide. The rest of the lazarette was filled up with sails, blocks and things. I heard Boyle scream out after he had been placed in the lazarette. That was after the mate had been looking for a bolt—about ten or fifteen minutes. I did not hear what Boyle said; I was on the main deck. I do not know where the two prisoners were ; they were afc somewhere. The last island we left was Kihihu. The cargo consisted of mules—about seventy in number. They were stowed in the lower hold. The lazarette is in the stern of the vessel. The lower hold does not extend quite from Btem to stern, it stops a little before tho foremast. The mules were not so far aft as the stern. The lazarette goes down to the 'tween-dock beam. The depth is perhaps six feet below the main deck. The lazarette in which Boyle was put in was above the main deck. Thero is one above the main deck, and one under tho main deck, one above the other. You enter from one into tho other. Tho lazarette, I should think, was very warm. Cross-examined by Mr. "Wynne The captain and mate wanted tho prosecutor to goaftandhowould'nt. I did not take notice of any language. I do not recollect what was said. I heard them quarrelling before I came out on deck. The captain and mato could not get tho prosecutor aft. They had no irons with them that I saw. I saw the captain take a knife from tho prosecutor. I could not see whether he took it out of prosecutor's pocket or out of his hand. It was a "jack" knife. I saw him in tho lazarette about five minutes afterwards. The lazarette is immediately underneath the poop deck. Between the poop deck and main deck is only three feet six. It is not the full size as is usual in ships of this class. There is a deck between the two lazarettea. Tlioro are sleeping bunks in tho lazaretto ; the captain's son was sleeping there last voyage. Thero are three sleeping bunks. The distance between the mules and the lazaretto, where the prosecutor was, was about nineteen or twenty feet. The space between was filled up with hay, sails, and provisions. The position of the captain's cabin was nearer to the mules than where the prosecutor was confined. I never go to the wheel. I saw the hatch on the lazaretto at night time, when it was my watch on deck. I siw it open a good many times. The hatch would be sometimes oil'altogether; sometimes half off; sometimes nearly on. I saw it oftener open than shut. I • have seen tho prosecutor on deck during the time ho < was confined. I could not say how often. I have i sailed with the prisoners for upwards of twenty-one ' months. During my time from what I observed of ( tho captain, he was very kind and humane towards < his crow, except towards this man. <

Re-examined by Mr. Brookfield: I do not know of any other act of cruelty on tho part of tho captain, j At tho time the lazaretto was used as a sleeping placo it was not choked up with blocks and hay anel ropes. There was moro ventilation in tho captain's cabin than in tho lazaretto. Frank Williams (a man of colour) examined by Mr. Brookfield : I am an ablo seaman on board tho barque ' Bessie.' I know tho prisoners. They aro captain and mato of that ship. I remember tho 19th of July. Tho ship was at sea sailing from tho South Pea Islands to some port of New Zealand. 1 know Charles Boyle. Ho was an ablo seaman. I saw the captain's mate do something to him. At the dog watch I wont to the wheel. I liearel tho mate give tile order to take out a hank of tho stays and put it on the flying jib. I saw nothing moro until I saw the prosecutor put in irons. The captain anel mate brought the prosecutor aft. The mate put tlio'irons on. He was on tho port sielo of the deck, aft of the i house. I saw tho mato put the irons on. 'lhey were then standing just at the wheel. Tho prosecutor was sent down by tho mate to the lazarette. I was relieved at tho wheel at six o'clock. I wont forward. I elid not soo tho prosccut or that night any more. I saw him the next day bewccn twelve anel one o clock. Boyle was then in the lazarette. Ho mado motions to me, and he had something in his mouth. I saw I something. I could not see, but it was tied round the back of his head. The prosecutor could not stand upright in the lazarette. 1 do not know who put the bolt in his mouth. _ , • Cross-examined by Mr. Wynn : I am quito sure it was after twelve o'clock. I saw prosccutor next day. I could not see the back of tho prosecutor's head, but I saw tho rope going backwards by his cheeks. Bv motions, 1 mean the prosccutor trieel to speak anel could not speak. I was at tho wheel. 1 could see Boyle from the place where I was standing. 1 did not seo the captain and mato go elown to him during this time. The hatch of tho lazaretto is about four feet from the wheel. Standing at the wheel my face was towards the hatch. The captain and mate must have been seen by me had they gone down to tho lazarette. I can swear they did not go down while I was at the wheel. A Malay man named John, succcedcd me at the wheel. I sailed with the captain over three months. With tho exception of this case, I have no reason to complain of his conduct towards me or the other persons of tho crew. Charles Winterfelt, examined by Mr. Brookfield, said : That tho origin of tho quarrel was that the prosecutor was on dock sewing somo pigskin on to a hank. The mate said lie had been long enough about it, and that ho must go out on the jib-boom and do it. The prosecutor said ho could do it better on deck as thero was a sea wiling. The captain ordered the mato to tell Boyle to come aft, aud be putin irons. Boylo went on to tho jib-boom. The mate went out to him and said " Give mo the work." Boyle said "If you lay hands on me there is a giavc for both of us." The mate ordered Boyle on the deck. Boyle said he was afraid that if ho went first the mate would knock him overboard. He said the mate should go first. The mate did so-on the starboard side. The mate took a belaying pin in his hand, anel went towaias Boyle. Boyle said that if tho mate laid hands upon him that ho would sutler for it, oi that ho would cause the death of him, or something of that kind. William Gay dropped his belaying pin and seized Boyle to drag him aft. This was just aft of the windlass, on the port side of the deck. Boyle said hands ofl' you Then tho captain came. Tho remainder of this witness's evidence was merely a repetition of tho facts already deposed to. He aelded, however, that the mate, in putting tho irons on the prosecutor, stood upon his ncck, that when tho prosecutor was in tho lazaretto ho was jawing the captain. Tho captain said that the prosecutor bad better stop his mouth, or he would stop it for him. The captain then ordered the ear] enter to fetch tho bolt to stop tho " fellow's" mouth. Next day tho comers of prosecutor's mouth were cut a little. In cross-examination by J! r. Wynn tlio witness said the prosecutor called tho captain "a mean Scotch "a sea robber," and other bad names. He called the mute seme bad names also. Hie hatch of tho lazaiofto was always about three inches open. He continued Hie bad h nguage after the captain told him to stop. Wh< n the prosecutor used the language "Hands off" ho had a knife in bin hand. He had just been woikiug with it. Tho witness had sailed for eight months with the captain. He was a very kind man. This was the case for tho prosecution. Mr. Wynn, addressed the jury for tho defence. He said that the jury, whatever might have been said about this case in the public press, would, as he hoped, keep their mind unprejudiced, and would arrive at their conclusions solely frcm the evidence, which had been aelduccd by the prosecution,aud whichhe as the advocate for thedefoneo, would put in in answer. 1 he facts of this case were not of a complicated nature, although the circumstances were of n eorr.ewlmt unusual character. On the one lu.nd were two oHirers of a ship, in whose hands, as had been stated, the law reposed very large powers, and unless each power was plenary, it was impossible that discipline or law coukl be preserved on board a ship. On the other hand, was a man, a seaman, whoit is admitted, pliould be entitled to protection, but although this was so, it was not to be forectton that he was under the authority of superior ofliccrs, and in his capacity expected and indeed bound to n uder implicit obedience to orders. The jury would he pleased to bear in mind, that on board a ship there was no escaping from insult, if it were offered not to punish by summary dismissal a refractory servant. -The safety of the ship, the lives on board, tho cargo she carried, ilcpcndcd on the mutual co-operation of all who were engaged in working her across the seas. The jury would also closely examine, tlicy would observe the demeanour of the prosecutor, bow interested he was in answering no question whatever that might possibly favor the prisoner. There was one remarkable instance of this. A question was put to him, as to the height of the poop-deck above tlie main deck, whether it was fifty feet. The prosecutor could not tell, yet it turned out that the poop deck was only three feet six above the main deck. And with regard to the lazarette, as it, was called, it turned out that it. was above instead of below the main deck; that it was a placo where the Captain's own son anel two others had slept on a previous voyage ; that tlie | hatchway, according to the last witness, was for the most part three inches open, except indeed when the prosecutor himself chose to shut it, and that according to the same witness, the prosecutor had used language of the worat and foulest kind towards the Captain. There could not bo a doubt that the prosecutor, a mail of some intelligence, was straining liis ease to the utmost against tlie prisoner, at the bar. This was manifestly shown alike by the character of his answers and his deportment in tho box. With respect to the period during which tho prosecutor represented that, the gng was in his mouth, it was evident there was an error, in fact an untruth somewhere in the evidence. The evidence of tho proseeutoJ was that it was taken off somo time next morning between nine and ten o'clock, after having had it on from a quarter to six o'clock the previous evening. There can bo no doubt about the prosecutor's recollecting so important a particular. Yet the witness Frank Williams, states that he ran the gag into prosecutor's mouth as lato as two o'clock on the following day. Was Williams telling an untruth, or was it that this man anxious to make out a case against; the Captain, again put the gag in his mouth that he might b.3 seen. It was impossible to conceiveany thing butthat oncofthesoaltcrnativeswas tho real truth of tho matter. But tho jury would tako the evidence of the prosecution and consider it in a light that hacj an important bearing upon the ease. They would remember that even the witnesses for the prosccutor gave the prisoner, Captain Gay a character for being a kind and humane man ; the witness Winterfelt was more emphatic and said that lie was a very kind Captain. Here then was a man using the foulest language towards tlic Captain—the language deposed is bad enough, but worse language ivill be proved if worse can be. There is the Captain separated from this man by a bulkhead—by in fact a single partition. He cannot as he night ashore walk away from tho approbrious jpithets which are heaped upon him. What wonder f his temper is aroused, and that his actions cxeeed ;lie bounds of moderation. It should be remembered hat this language is also uttered in the presence of Jther seamen over whom the captain should have luthority, and who are bound to obedience. Was it lot within the provisions of the statute the very case •vliich was now before the court. Is not this the rery conduct to repress which powers were conferred ipon captains aud mates of ships ? Even from tho noutli of the prosecution—an unusual circumstance —tho character of Captain Gay is spoken of in terms )f praise. But thero would bo laid before the jury :ven higher testimony. Men in the highest position vould come forward to speak to tho character of j'aptain Gay, for his uniform kindness and humanity .v tending over many yenrs of their known knowledge >1 hiui. The Colonial Secretary, Mr. Fox, 'wu# in J

court, having come forward to bear hia testimony to tho character of tho prisoner. There was also a gentleman of tho highest respectability from Canterbury who had come up here unsolicited to speak of his knowledge of Captain Gay for a period of over twenty years. [Both tho prisoners uppe red to be much moved by tho statement of tlio learned counsel, Captain Gay oven to tears.] It, will not bo shown that Captain Gay is an inhuman or unrelenting superior, with whom violence is customary, but that, ho is a kind-hearted humane man, and the jury would say whether tho evidence of tho prosecutor was to be believed in its entirety; and even if it were, whether his own conduct was such as to havo called down a punishment, which, though it might, bo severe, yet was not dictated by malice or vindictiveness. He (Mr. Wynn) would leavo the case in the hands of the jury. Henry Do Potter oxamined by Mr. Be vend go: 1 am ablo seaman on board the harquo ' Bessie.' On tho 19tli of July, about a quaitor after four, tho mato ordered Boylo to put. a hank on tlioflying jib-stay. I ramo on deck at half-past fivo and it wasn't done yet Boylo was standing on tho forecastle with a palm and sail-necdlo in his hand. Tho mato told him to go out on tho flying-jib-boom, but Boyle said ho could do if better on deck, becauso thero was a little sea on. The mate got him by tho arm and told him to go out on the flying-jib-boom. He then went and was out about ten 'minutes. The mato wanted him to come in, and as ho came in ho said, " I'll jump oveiboard " with you." Tho mate and Boylo camo in and stood on tho forecast 10. When Boylo camo on deck the mato ordered him to go alt, but ho elid not go. Ho inmped on dock from tho forecastle with an open knife in his hand, and said. "Hands off, youh Tho mato and Boylo woro lying on deck togothor when tho captain camo up and asked Boylo for his knife. In tho evening at six o'clock I camo to tho wheel and heard Boylo singing in the lazaretto. Hie captain told him to be quiet, but ho began to curse and swear at the captain, calling him pirate and searobber, and other very bad language. I lie captain told him sevrral times to bo quiet, or he would make him. Ho did not desist, and tho captain sung out to tho carpenter for an iron bolt. Thov then went down to the lazarette. The captain having something in his hand, I did not see what, took place then; it was dark. Hie captain was clown there about ten minutes. When they camo out they slopped on the poop about a quarter of an hour The captain said " That chap's is quiet now, take that piece of iron out of his mouth. Ho then went down : the mate stopped on dock. Boylo said, " that i'll do. I'll make you pay for this." I have sailed eight months with the captain, he lias always been good (o me. I don't think there's any man on board will say otherwise. Cross-examined by Mr. Merriman : It would be all the same whether Boyle sewed tlio leather on board, or on the flying jib-boom, but he would do it easier on dock. The mate had not a belaying pin in his hand. At leastldid'nt see one. He came on deck about midships, on the top-gallant forecastle, on the port side. I saw the knife in Boyle's ■ hand, when he jumped off the top-gallant forecastle. The mate was very rough talking to liini. I could nt see what took place in the lazaretto, but I heard a j noiselike knocking with the feet towards thccawtain's cabin. I heard Charley Boyle singing out in a mufllcd tone. He-examined by Mr. Wynn : It was after the captain said, "that chap's quite now," that Boyle said, " I'll make you pay for this." That, was about three minutes before T was relieved at the wheel 'about eight o'clock. lioylc was singing some Had in (lie lazarette. [The witness, a German, expressed himself with a very strong foreign accent, so as to bo at timet, almost incomprehensible.} The Honorable William Fox, the Colemial Secretary, deposed to having hr.owii tho prisoner 'I homas Gav seven or eight years, having first become accpiainted with him by meeting him at tho house ot his mother-in-law. Mrs. Sinclair, and from what he had seen personally, lifd reason to believe him an exceedingly kind-hearted and humane man. William ontgomery, merchant residing at C'hristchurch, had known Thomas Clav bet ween'tlireo and four years, and had always regarded him in the same light as tho last witness. Ho had eomo up from Canterbury to say so voluntarily, and without a subpi on a. Sir. Merriman, addressing tho jury for tlio prosecution, eallid their atti litieji to the fact that in all the evidence that had been given as to character, not a single word had been said about tho chara"tcr of the younger prisoner. The remark of ono of tho witnesses was signiticant. Ho had said that with the exception of Ibis case, the captain had always shown himself a humane man. Mr. Fox, whose thorough truthfulness no one would for a moment presume to doubt, bore testimony to tho prisoner's kindness of manner when on shore, but he bad never sailed with him as an articled seaman, it was much more important to have the opinion of seamen who had sailed with him. CI he .question, however, narrowed itself to the single circumstance. Hid or ' did not the prisoner commit tho assault complained of? >"oplca of justification had been set up. But had it, been, could any demands of ship's discipline justify the putting a thing like that bolt in a man's mouth, anel keeping it there for several hours ? The prosecutor was not using approbrious lnnguage or abusive epithets when he was gagged in the lazarette. Ho was singing. It was eaiel in mitigation of the severity of his confinement, that lie was shut, in the same place where the captain's son had slept; but at that time there were three bunks in it, and it had been cleared out. Now it was so tilled up with ropes, blocks, sails, and hay, that there was absolutely not room for a man to stand upright. The evidence showed that, the conduct of the | prosecutor had been most, forbearing. Ho had j said to the mate when they were both on the Hying jib-boom, "You go first, or we shall both go overboard." The witnesses for the prisoners were unanimous in their evidence as to the good general character of at, least, one of them, but this would not justify the use of such strong measures as hud been taken, not as it appeared in self-defence, or in the j course of a violent struggle, but as a punishment for a very trivial offence. I The Court briefly summed up the circumstances of the ease which presented no extraordinary or legal difficulty. It was only a question of fact for the jury to satisfy themselves whether the assault had been committed or not, anel then whether the two joined iu doing it. If so, both would be guilty. The evidence was then read over, anel the jury retired for a few minutes to consider their verdict. ■ On their return they pronounced both prison is guilty of assault on 1 lie high seas. Mr. Wynn said he hud a number of testimonials numerously signed to present in favour of the captain, which liis Honor said would bo favourably considered in his sentence, as well as the fact that they had already passed (wo months in gaol, but lie should defer delivering sentence until he hail time to read them over. The Court adjourned till 10 o'clock this morning.