THE OKE CASES.

New Zealand Mail, 29 November 1900, Page 24

THE OKE CASES.

CHARGE AGAINST BROTHER KILIAN.

ACQUITTAL IN OWENS’S CASE

At the criminal sittings of the Supreme Coui-t, Wellington district, on the 21st, before Mr Justice Edwards, the hearing of the first of the Stoke cases was begun. James Solan (Brother Kilian), who answered to bail, was charged with having committed a common ass.uil on a boy named James Joseph Owens at the private industrial school for boys at Stoke, near Nelson, on the 80th May, 1900.

Mr 11. D. Bell, with him Ivlr Myers, prosecuted for the Crown; Mr Skerrett, with him Mr Fell (Nelson) and Mr Wilford, appeared for the defence. The accused had been previously arraigned, and had pleaded not guilty.

All witnesses were ordered to remain out of hearing of the proceedings in Court.

The following composed the jury: George Dome (foreman), Alexander Day, John Nut-tall, Thomas William Siiun, John Parks, Robert Henry Free, Hugo Gerard, George Willis Harvey, Carl Gustav Wilhelm Kruse, Robert Pownall, John Augustus Pyle, and Henry Foster Williams.

Mr Bell, in opening the case for the Crown, said the charge against the accused was one of common assault. No charge was made against him except for unkind treatment. As the jury had no doubt heard, one charge alone was to be made against him in this trial. If there were other charges pending against him they had no relation to anything else but violence to hoys; excessive punishment, that was all. The accused was now charged with having exceasdvHv and irregularly punished a hoy who was in his charge. It could not he denied that the way in which boys were treated who were sent to industrial homes or schools was a matter of very great importance indeed to the community. And it wa,s because these boys "could only be protected by the law that the law was invoked in the present case. For that reason the Crown) invited the jury, if they thought the evidence proved that an unjustifiable assault was committed upon this hoy. not to dismiss the charge because they thought it was trivial. It was a matter for their consideration, but be submitted that it was not a trivial matter that children committed by Magistrates to the charge of the proprietors or the conductors of a school such as the Stoke School should be dealt with unfairly, or unjustly or improperly. It was, of course, necessary that the matter should be proved by the Crown against the accused to the satisfaction of the jury. If it were so proved, then counsel submitted to the jury that the triviality or the apparent triviality of the assault was not a reason why they should acquit. They would remember that they were dealing with an individual case which might or might not be an example. At all events, if, taking the individual case, the boy was not to be protected except in the case of gross excess of punishment, then the jury wouhl see that the arm of the law was not long enough to protect the boy, or any of the children in these schools. There were three classes of industrial schools —Government, local and private. Tlie Stoke School was a private school. It was named in the schedule to the Industrial Schools Act of 1882. Regulations were made in regard to the punishment that might be inflicted in Government schools, but they did not extend to private schools. In fact, the matter now before the jury was one of common law and the Criminal Code. The case with reference to the boy Owens was not one of measuring the quantity of blows of a supplejack which the jury might or might not think was reasonable to be administered. In one sense it was an easier case than that. Corporal punishment was administered in this school with a supplejack, which, apparently, was very vigorously applied. Counsel had no doubt that a supplejack was a very useful weapon for bringing boys to their bearings, and when it was applied to a limited extent, it would be absurd to say that there was anything improper or criminal in its use. But if the evidence of Owens were believed, he was first boxed on the ears and then punched on the headi by the accused. Now, if that wore so—taking it as an isolated case altogether—men it would 1 be submitted for the Crown that the application of such punishment was altogether unreasonable, and to affirm that it. was reasonable would be to withhold the protection of tlie lav/ from the children whom the law committed to the charge of these institutions* It was not a case, nor was he opening a case of gross brutality, against the accused at all; hut it was a. case of a strong man using to a boy a method of punishment which, it was submitted, was utterly improper and unreasonable according to the intention of the law. t

James Joseph Owens, examined by Mr Myers, said he was at present working on a farm at Blenheim. He was a little over sixteen years of age. He had been an inmate of the Stoke School from about 1893 till tills year. The

accused was then in charge of the boys at the school. Witness remembered being punished by the accused about six months ago. The punishment was inflicted in the schoolroom. The boys were in ranks ready to go out. Witness was talking, and Brother Kilian saw this, and came up to him and struck him in the face with the open hand. Witness said, “Don't hit me cowardly.” Then the accused hit him on the leftside of the head with his fist. Tlie accused also punched him in the eye, and made it swell. He also kicked witness on the left leg. Witness made a kick at the accused, but did not succeed. The accused then got- him_ by the arms and threw him over. Witness was bruised, and laid down and started crying. The accused made him get- up and go with the other boys. A few days afterwards another boy cut, witness’s eye with a blow. His Honor: You don’t blame Brother Kilian for that. Witness : Oh, no. (Laughter).

By Mr Skerrett: Witness had never been struck by Brother Kilian before the occasion he had mentioned. He was .sometimes treated unkindly at the school. He had to do penances—standing and kneeling with his arms folded. Witness just after leaving the school wrote the letter produced to Father Mahoney, chaplain of the school. The object of the letter was to let Father Mahoney know he had got off at the wrong place when on his jyay to Blenheim. In the letter he said the boys at the school were well treated. Mr Skerrett: In this letter yon stand % up as a champion of the school. Witness: Well, in the way of tucker, I do.

Continuing, witness said he had been flogged on the hands with a- supplejack. He considered the assault- committed by Brother Kilian was worse than that. When Mr Guinness, M.BT.R. for Grey, asked him at Picton whether he had been flogged, and he replied in the negative, witness thought flogging other than on the hands was meant. Witness and other boys knew there was trouble between Mr Rout, of Nelson, and the brothers. That was before tire assault. Witness did nc-t know that many of the boys were on the side of the brothers. Some of the boys lighted a fire inside the playshed in one corner. Witness was not there, but he saw the fire. Witness thought it was lighted to spite Brother Kilian. Witness had nothing to do with it. It did not occur to him till it was over that there was ail attempt to bum down the shed. Once or twice the boys hooted Brother Kilian. After witness had been thrashed, stones were thrown at Brother Lilian, to whom the boys were pretty cheeky. One reason why the boys changed their tone was because they saw witness ill-treated. Witness did not consider that Brother Kilian had any special “ down ” on him before the thrashing. Brother Kilian was not a teacher; he was there to keep the boys in order. The teaching brothers inflicted punishment. The boys never liked Brother Kilian.

His Honor: Was that on account of the position he filled?

Witness: Brother rvilian was not liked.

Mr Skerrett: Who held the position before him?

Witness: Brother Wybertus. Mr Skerrett: vYas he liked ?

Witness replied in the negative. Further cross-examined, he said he remembered giving evidence at- Nelson. He read part of the report of it which appeared in a Nelson paper. He kept the copy, hut had left it at Blenheim. Witness was not a modest boy; he was able to look after himself.

Mr Skerrett: You were a pretty troublesome handful to manage, you boys ? Witness: Well, yes, we were.

The witness was then cross-examined in detail as to the circumstances of the alleged assault. Mr Skerrett: Did you hear that a number of witnesses in this prosecution went to the Brothers’ School in Wellington, and threatened Thomas Maher?—l was not with them.

Did you hear of it ?—I heard they were there, but not that they threatened Maher.

Did you hear that they had thrown stones ?—No; I heard they went there. Well, what did,they go there for?— Yes, I did hear that they threw stones. What did this lot of boys want to go to the school for?—We went down to listen to a paroquet talking. What time o'f the night was ft?— After tea.

His Honor: Does the paroquet belong to the brothers?—No; it was further down the street.

Mr Skerrett: Who did you hear about the stone-throwing from?—Some of the others.

On the day after your thrashing at Stoke were you out driving with Brother Kilian?—Yes; breaking in a young horse. “ °

I suppose that was a sort of treat?— I didn’t enjoy it. Why ? Didn't you like the horse ? I didn’t feel in good company. His Honor: Was it the young horse you objected to?

Mr Skerrett: What did you object to?—I didn’t like Brother Kilian. Was anything saidlabout the assault ? —No.

By neither of you?—No

Was your eyo still swollen?—-Yes. Could he have seen it ?—lf he had looked.

Mr, Bell: Did you talk about anything else?—He said a few words about the horse. Mr Skerrett: They wouldn’t/ sit like graven images. Mr Bell: I don’t know —schoolmaster and schoolboy might not have much to say. Mr Skerrett: That is not my experience. This concluded the examination of the witness, and the Court adjourned till next morning. The accused was again admitted to hail. His Honor directed the jury not to talk aboat the case with any persons outside their own number. At the criminal sittings of the Supreme Court on the 22nd, the trial was continued of James Solan (Brother Kilian) on a charge or having committed a common assault on a boy named James Joseph Owens, at the Industrial School for Boys, Stoke, near Nelson, on the 30th May, 1900. Mr H. D. Bell, with him Mr Myers, prosecuted for the Crown; and Mr Skerrett, with him Mr Fell (Nelson) and Mr Wilford, appeared for the defence. John Lane, a boy about fifteen years of age, the second witness for the prosecution, said, in reply to Mr Myers, that he was removed from Stoke to the Government School at Burnham in September. He remembered Owens being punished by Brotuer Kilian for laugh ing with James Maher, Brother Kiliau gave Owens two smacks on the cheek, a punch in the eye, and a kick on the leg. After he was punched in the eye, Owens said ‘‘Don’t hit me cowardly.” Witness noticed next day that Owens’s eye was swollen.

By Mr Wilford : Witness understood the ground-plan produced of the schoolroom in which the affair took place. He was sitting in the third desk at the time. Owens was near the door. There were no boys between witness. and Owens. There was none in the passage, but there were some in the seats. Witness could see clearly what took place. At first witness had his back to Owens, but lie turned round and locked at what was happening. He did not see Owens knocked down by Brother Kilian. He took no further notice after Owens was kicked. His reason was that he did not think Owens was going to get any more after the kick. Owens shrieked when he was punched in the eye; he was standing up then. For a. while Owens continued shrieking, then he stopped. He remained standing while he was shrieking. Witness watched him a little while after lie slopped shrieking. Witness did not see him on the ground. Witness’s memory was good as to what occurred. Mr "Wilford: In the Magistrate’s Court you saiu that after Owens was struck with the open hand the first time he said, “Don’t hit me cowardly.” Witness said that the account that hg gave in the Magistrate’s Court would 0e the correct one. He had forgotten now. Before giving evidence in the Magistrate’s Court witness made a statement to Detective Marsack in the presence of Acting-Detective Cameron. Before Brother Kilian hit Owens he.gave no warning; he said nothing at all. Witness did not near Brother Kilian speak while he was chastising Owens. Witness said in tue Magistrate’s Court that he saw Owens talking with Maher. He said that because he had heard other hoys, say so. His recollection now was that Owens was only laughing. All the hoys said Owens was talking. He could not give their names, except iu two cases. He did not say that Brother Kilian punched Owens because all the hoys said so, but because he saw it done. It was sometimes the practice, when a boy misbehaved himself in the ranks, to order him to stand out. He thought Brother Kilian ordered Owens to stand out on this occasion. He thought the order was given before Owens was punched. Owens stood a little out of the ranks. He did so at once. Witness did not remember Brother Kilian’s being kicked; by Owens. He had heard- Owens say he kicked; Brother Kilian once or twice. Brother Kilian hit Owens with his right hand, and struck the right eye. A boy named Charlie Miller hit Owens in the right eye, and cut it.

By Mr Bell: Owens was in charge of the horses at the school. Before he was punished", Owens was only whispering to Maher. If Brother Kilian had said to Owens, “What is the meaning of _ this P” witness must have heard! it, if it was said in a loud .voice. Witness was about 18ft away. William Moore, the next witness, said he was now working on a farm at Nelson. He was at the Stoke School froin 1896 to July of the present year. When Owens was punished,-, witness was in the rank in front of him. Owens . was whispering. to Maher, and laughing. Brother Kilian hit Owens with his - open hand, then rushed at him and hit him in the left eye, then kicked him, and then got him by the shoulders and threw him against one of the pillars. Owens fell on the floor just after he went against the pillar. Witness heard Brother Kilian say, “ What’s the raison P Brother Kilian spoke in that way.

Mr Skerrett: That's exactly what

Owens says. T+ : c 41 Kilian talks. lhe Brother Witness, eantinuinw , , Brother Kilian hft -fta ~ hand, the latter -said, «fi. h « open By Mr Wilford: Witney years and eight months old wt fifteen ness gave evidence before fl, 1 Commission he said ha A*, Ro lal tuer it was true h e w«a k?l ?“ ' vhe ‘ saw Owens kicked. H- He the Commission, to i?Tt tM’ aft « His Honor: Whv di/A Wastr ue. the Commission, “I think°h 0 Say A efore ed?” ’ nk Le got kickWitness said he thought ov * afterwards. He was not ß ** it about it when before th e P Gn G - SUre Ho l„d see,, ether be, aß*™: COU d think of it ’ reply to Mr, Wilford, witness Am J* ivas sent to Stoke from AuXIS <Np stealing two rusty chisels land for "Don't hit me eo»«dl‘f' said it alter he was punched as well * afveij he was slapned W’;?-,,,, 133 ab t U + n S n n ‘ Vay " -brother Kihan rtd - not tell Owens to leave the LAOwens stood out a little to tuL 5 ' He told witness « little while aftenS that ne tried to kick Brother Kilian w did not succeed Witness remembered of ™ dows “

By Mr Boll: When before the Conmission, witness was examined as to a number of things. a By Mr Wilford: Before that witness had made a statement to Mr Rout who wrote it down, and got him to sign it Leonard Minola, aged under 12 years now at- the Burnham School, said tint when Owens was punished he was about ten yards away. Witness was sitting in ms form. He saw Owens slapped, punched and kicked, lie dm not Brother Kilian speak. By Mr Skerrett: Witness’s attention!#; I”};" 3 , mailed to the affair, because Brother Kman knocked with a penknife and the boys stopped talking. Brother Kffino . went to the porch door to see that the hoys went cut regularly. After a little \ while h.e walked towards Owens.

Oueris is a pretty long-tongued Boy? Yes.

Witness, continuing, said that Owens' was punched about five minutes after he was slapped. The affair took place at half-past seven o’clock in the evening. There were three lamps in the room. Witness had said in the Magistrate’s Court, that when Owens was punched he was in the act of falling down. That was wrong. Witness had talked over this matter with other Stoke boys who were now at Burnham. Mr Bell: It doesn’t look like it. Mr Skerrett: That comment should be made at another time.

Witness, continuing, said that when Owens was kicked he was on the floor.

Mr Skerrett: Now, how could you have seen him? You are a little chap, you know?—l stood up. I was sitting in the third seat on the right hand side of the back row.

Owens says he was kicked when be was standing. He would knew, wouldn’t he ?—Yes.

Emanuel Baker, in reply to Mr Myers, said that Brother Kilian kicked Owens after slinging him against a pillar. By Mr Skerrett: Witness was in the ranks just behind Owens, who was laughing and talking. Brother Kilian did net say anything to Owens. He smacked him over the face, and then toiu him to go out of the ranks. Owens obeyed. Brother Kilian pulled him out. Owens did not go quick enough for Brother Kilian, who caught him by the arm. Owens tried to get away. , Witness would not say Owens was kicking. He did not take much notice. When Brother Kilian got Owens and punched him, witness looked. In the evening Brother Kilian wore ordinary shoes —-not slippers. He kicked Owens once or twice when the latter was on the ground.

Mr Bell: That is the case. Mr Skerrett said he wanted Thomas Lynch to be called for cross-examma-tion. " .. • Lynch, who is a small boy, said, m reply to Mr Skerrett, that he was now an inmate of the Burnham School, remembered Father George Mahon y coming to the Stoke School, and giving a little lecture. Father George 833 _ that if the boys had any complain s - make they should make them to m®Witness made a complaint. sai -g brother (not Brother Kilian) had done something wrong to him. Some of boys told him to ao that. Was it O’Leary, Yeadon and Earn sbaw ?—Yes. „ Was the complaint tru ® Ar* es 'rmw Do you say the brother did this to you?—He tried to. You gave evidence before the

the complaint wa3 tot tr 'h' what you told Father Mahoney true?—(No reply). „ . Ma . You came voluntarily to ha ' honey to contradict the statement , „

V t it not a fact the boys barest their heads together to 8a 7 r can against Brother Kilian? • „ Mr Bell: Why don’t they Je Brother Kilian ?—Because he is cruel to b °Sow long after the address go to Father George? Two d£ The boys had been talking?— Yes.

you to go to- FaLn : afraid ho doesn't. :^fo'W : S answer to questions oy He (the brother) didn't pjd you .v.iyouo lust to your—l went to - j| Q Br; . au and Maher about ®'o<>“. - lltr j 0 d.-> something bad. 4* - \ Va3 further questioned in opening the case for' which he did after tire hmzßfe'r'nrnnient, said it would be cieT 1 "that the evidence of the K 6ii» l . el : esses wa s entirely unworthy As to the charge, Brother ' cKooimaster, bad, utiIrlit* to-'use reasonable ’boys who were under uestion for tiro jury euess or otherwise of ie used in punishing ushment was deserved re jury would ha ve to given was in degree reply to Mr Skerrett, exam:iied before the .. Re was for two a charge of the boys !. Ho arrived in New eek> before he was i. Ris duty was to ys after school hours, the:', and received no at a clergyman of the Ho belonged to a •e obieet was the eduig. It was often his > indict punishment, the circumstances of A day or two pretence he had to piu:ledtence in the school, smacks on the hand Owen- was a brigli';, d l.e was strong. Ida . Or. the evening in were forming into' go out to the urinal. ■ the porch. His acted by Owens, who laughing with, other •lied, to him to keep r had no effect, ami three or four yards to Owens, and said." jau by this talking?” ! we sis replied, “WhSt so not talking.” (Askord “reason.” witness ay brogue.) Witness s. He also took him ami pulled him out rore that Owens had viteed to leave tk? rank?. Ho said, I wooing othing,’ and resisted viojsiJ.vj. He kicked at witness, hut did ist reach him. Witness slapped Owens igiin. He .’took Owens by the shoulder rni pulled . lini along. Witness did n’strike lnm again. Owens threw hints'; os the ground and started scrc-a.m-s?cst. He was not liuijt- at ail. The liter boys were passing out . and wit- £?“• tpld Owens to get up and follow fe.- He did so, and went to bed with p®.. .’Witness did rot punch Owens geye, or kick him. Next day he i*? driving with Owens. They were y 3, ®bout an licur and a- hair, nothing wrong with Owens’s ■JU. Witness and Owens talked about '■J ' ??’ they did not have much, 4*. %i* tbtte there was a ihuiu the school. On the, 'I k a SUI P 1 ”' 6 v isifc. to the school paid by Mr Rout and a-number of piemen. Witness’s -recollection 1,1- ™e punishment in question; :*•-inflicted on the 7th June. There «'another visit from some other &***» the nth June. AV;® e -i : Witr.es-' asked to be alui-; - m} e e y i de:ice before tiio Coins’* “); director of the school said tiki.. Uf 'cessary. Witness- was orCTim'^tt 6 Stoke School by the - ; son"tTr Ii hf e . UJU ier,st,-od that the- lea-to-hini.v i lt vy ? s considered that his - gaum! if ’ no - Beß . il satisfactory .The u ' ng fl ‘ :u ®v/ay m'.wj, lit; ■ ' ev^'j:tco : -S lVi? -p< Iwis-'i'e 7 L-‘ Haw- Mahon Ay, hr aveti §|P||M said- that i -rtc. iu' er3 1 cus and Loetiis) till thov r *’ Gther brothoi’3 remained ! replaced by the new staff. .•tWI ns? 8 / f-htn'e had been no . Cr pfher Le.Otus.- - - said ’Gwns in re-'-6« ? in « 9* boys in cells that Bcsmjn»T- X.' 51 *' w «s paid by Judge Mr Fell on : the' stb o ss- did not put the ceils or keep them understood that •-.Judge ?“ Lie school as.a private i® understood that Judge *” r veil gained- a, favour--oi - He aid not see th.e , 01 ' P-°w what they. wrote iV 1 'vl.Uioss boxed Owens’s did „ot say) “Don't hit R mtnoss said to Owens, meaning of this talkin'* ?” is tqo reason ?” He had had 0 coys about talkiim on a

great many evenings. He remembered w d ?“ tlus evening because it \v£is ti particular rn, occasions he had boxed boys''ears “ m£n lUS iIG / ior: lb was "'hen tne CmrfTrst kiewlhat K lllflU | ry tilat witness 1 • klle >v that lus conduct on tills occa th ° of comment, v : Jhat was the J u l v tjf S £ B t ' f ° V> ' eUS threw himself on u.e noor. That was after witness had pusned O',yens away from him. \\ mw« caught hold of Owens twice. iie TOojhis Hand off the boy’s shoulder to box nis ear. He had foimu Owens out ui pSIS-»s,iSf lit AM; T “ S 7 *v

_ ; ¥ r Bel!: They may have been, but I '‘w J° U wouidnt- suggest- it. i,”!;S sa ‘ d he had found Owens opt * fc A% m I ; egard t 0 catering the nn ti '' 4 .iarmaaud made statements 5“ v ' i ,H c 1 h witness found to Ut ue Witness did not punish Owens on -ha., occasion. Punishments which Owens, received on the sth June was for wb;nl g aU Kutru th—giving an excuse, wi.icn was not correct, about his having to change Ins clothes. Witness had been untortunate in what the bovs had vi- a ? llf ; hun 111 this Court, ‘ Mr,Deli, in reply to a remark bv hh-vSS"- , he ~ s ia ~ Mr Skerrett objected to questions in regard ,o other charges being nut to tne accused. . M 1 joeii ,in 'reply to his Honor, submitted that the questions which he proposed to put would go to the credit of tne accused as a witness. M-ig Honor ruled that questions couki not be put to the witness in regard to .other charges. He thought tnat wotnd be contrary to the first urmciples of criminal law. Mr .Bell then formally asked the witness: Did you not strike the boy Davis (mentioned in another charge) with your closed list in the eye ? Mr Skerrett objected, and his Honor chsaliowed Hhe question, saying it was unfair, and might prejudice the accused in Ins defence. Witness, in reply to Mr Bell, said he }*Qd never struck a buy with his fist. He aid not lose his temper when he caught hold of Owens! ■iais was the case for the defence. Mr Skerrett, who began 'iris address at- 0.00 p.m., asked the jury to rememoer the character of the" school, anct the necessity or maintaining discipline among its inmates. He asserted that tne cnarge against Brother Kilia-a was the. .outcome of the exaggeration o: a story which had no real foundation, and which was started after the boys found cut that the conduct of the sohc'c-1 was being made the-subject of investigation. Mr Bell said the discrepancies in the evidence of witnesses for the Crown were_ against any theory of a conspiracy on their part against the accused. His Honor, in his Summing up. said it was beyond douot that at the time in question there was a strong .spirit of insubordination in the school. If- the accused ordered Owens to leave the ranks, and the latter refused, and a scuffle ensued, was it possible for anyone else in & large, dimly-lighted room, to know what actually occurred? - Mr Bell: Tiie accused is able to say. He.says lie let go of Owens in order to hit him again. His Honor: To slap him. It would be for the jury to say whether such a scuffle was not the explanation of the whole thing, for the Crown witiusses were certainly- not making the least of it. Before all tilings in that establishment it was necessary to maintain discipline. The crucial point seemed to be whether Owens was ordered to leave the ranks. If the accused ordered him to do so, he had to see that he did, or there would have been an end to all discipline in the school, and the staff might as well have packed up their portmanteaux, and left the' establishment to “these young gentlemen.” Two of the C-rown witnesses swore one thing, and two another (-on this point. The accused did not seem to be a very strong man, and Owens was a. sturdy youth. Was there a rough-and-tumble between them? Owens made no complaint cf the accused’s conduct towards him.before the date m question. Was it likely that there would then be a change, and that, at a time .when the accused knew the school was specially under the public: eye, he would commit the grqss outrage which the Crown- witnesses said was ? In conclusion, his Honor directed the jury to dismiss all prejudice from their minds iu performing the very serious duty which devolved upon them. He reminded them that one of the growing evils of the day was insubordination of the young. The jury retired at 5.35 p.m., and after about- a quarter of an hour’s absence returned into Court with a verdict of not guilty. Mr Bell said he would go on with the Davis case dr, the following day.