MANSLAUGHTER CHARGE.

New Zealand Herald, Volume LXVI, Issue 20302, 9 July 1929, Page 14

MANSLAUGHTER CHARGE.

[DEATH FOLLOWS QUAIiIiEL

FAILURE OF PROSECUTION

DECEASED THE AGGRESSOR

HAEMORRHAGE OF THE BRAIN

The charge of manslaughter arising out of a quarrel in Victoria Street on Juno 24, which was preferred against Thomas Nizich, aged 35, Dalmatian labourer, in the Polico Court yesterday, was dismissed by Mr. F. K. Hunt, S.M. Nizich was charged with unlawfully killing Arthur Ludwig, of 5, Burgoyne Street, and an inquest into Ludwig's death was conducted simultaneously, a verdict of accidental death being returned. DetectivoSergeant Kelly appeared for the police, while Mr. Allan Moody represented accused. Tho Court was crowded.

Dr. C. H. Tewslcy, who made a postmortem examination, said that Ludwig had superficial abrasions on the left side of tho forehead and tho bridge of the nose. There was blood on the left side of tho face, and other abrasions on the left arm. There was no bruising of the scalp, and no fracture of tho skull. Internal examination disclosed extensive haemorrhage under tho brain membrane, and this was the cause of death. The heart was enlarged, and tho heart muscle was degenerate and hypertrophied. Dr, W. Gilmour, pathologist at tho Auckland Hospital, corroborated the evidenco of Dr. Tewsley regarding the causo of death. The haemorrhage could be caused by a state of emotion or by a blow on the head. Tho only mark on tho head was tho abrasion on the left side of tho forehead. Tho inference ho drew was that deceased was liablo to haemorrhages. Argument Insido House. Mrs. Vera Butterworth, of 13, Virginia 'Avenue, said that she wont to 139, Victoria Street to get the key to a house in Nelson Street. After she had seen the house she went back to 139, Victoria Street, and began to make arrangements with accused about renting it. Doceased walked in, not at her invitation, and commenced to argue with accused. Deceased appeared to havo had liquor, but accused did not appear to be under tho influence of drink.

When deceased went into tho shop, accused told him to leave. Accused pushed him out, but he went back. " Before I left tho shop they both had their hands up as if (o strike ono another," witness said. . " I left tho shop and when I reached the Empire Hotel I saw deceased, accused and oilier Dalmatians on the footpath. I did not see accused strike deceased. I did not seo tho deceased falling as I ran away. Ido not know of any private dispute between this accused and deceased, while accused did not give deceased any provocation. I knew deceased sinco I was a child." On her way back from the houso in Nelson Street witness had met deceased at tho corner of Victoria and Xclson Streets, and left her little boy, who was with her, with deceased while sho went to discuss the ■ terms of rental with accused I all in Street After Blow. Mrs. Martha P,obinson, of 4, Sale Street, ■who had accompanied Mrs. Butterworth, gave similar evidence regarding what happened inside tho building. A crowd gathered in tho. front, shop and Mrs. Buttprworth ran. into, the crowd to separate the men. Witness saw accused strike Ludwig in. the street,, and ho fell. Before thai, sho saw Ludwig take his coat off. IWhen tho parties were in the shop there was no blow struck. . William Jamen Farrell, residing at 8, Vincent Street, said, that while passing tho shop he heard an altercation inside, and thcrp were several Dalmatians in tho room. After going on a few paces he stopped. He then saw a man go out of tho shop ahead of accused, who was not trying to push him out, but coaxing him. "I saw deceased pull off his coat and put it down by the window," witness continued. "I heard the deceased make a remark to the accused, but I could not hear what it was. Tho deceased said: 'You tried to do for mo inside, now try to do for me outside.' I heard accused tell deceased to go away. Ho said, 'Don't be silly, got away out of it.' I did not see Ludwig strike Nizich, but I saw tho latter striko Ludwig on the left jaw with his right hand. When deceased fell ho struck his head on tho footpath heavily." Deceased "Talking Fight."

Witness said that ho thought Ludwig had had a few drinks, while accused appeared to bo all right. He did not consider that tho accused was in peril when ho struck Ludwig. In reply to Mr. Moody, witness said that accused struck only ono blow, as far us he saw. Ludwig was excited and seeking troublo, while Nizich, who was cool and collected, pushed him away. Ludwig appeared to be inciting Nizich to fight. When ho was struck he was "talking fight" and moving toward Nizich. Witness did not see Ludwig strike Nizich at all. Nizich was trying to get Ludwig away, and was not in any way aggressive. A different version of tho affair was given by Ernest Hunter Barrett, a traffic inspector to tho Main Highways Board, who was passing When he first saw the two men they were in lighting attitudes in the street. 110 saw three distinct blows. Deceased struck Nizich twice in the face, and then accused struck him. The blow given by Nizich was not sufficient to knock deceased down. Both men seemed to have taken liquor, but accused was the more sober. In reply to Mr. Moody witness said that when he saw them both men had their coats off. Court Discharges Accused. Stating that she heard deceased use objectionable language to accused, Mrs. Annio Frances Anderson, of 5, Macky Street, whose evidence was corroborated by her husband, said that Ludwig had asked Nizich to go out of the shop and fight him. He had later used further obscene language. Accused had tried to get deceased away, attempting to shake hands with him and not endeavouring to defend himself, even when deceased struck him in tho face. Mrs. Alice Maria Mitchell said that deceased took off his coat and rolled up his sleeves, then striking accused over the loft eye. She heard Nizich offer deceased ft drink if he would go away. Instead deceased again struck accused in the face. Several rnoro witnesses wero then heard, and the coroner returned the fol- i lowing verdict:-—"! find that the deceased died in Victoria Street, Auckland, on.l June 24, and that tho cause of his death j •was haemorrhage over the surface of the I brain. The medical evidence shows that ! emotion or excitement would cause such a haemorrhage in a man in tho deceased's I physical condition, and I find that it was I so caused and not by a blow." Mr. Moody submitted that in the face e! such a verdict there could bo no case of manslaughter, arid the magistrate agreed, remarking that even if deceased had fractured his skull in his fall he j would n)t havo committed accused for ' trial. Nizich was accordingly discharged.