ASSAULT WITHOUT PHYSICAL FORCE

NZ Truth, Issue 1063, 8 April 1926, Page 5

ASSAULT WITHOUT PHYSICAL FORCE

THE FINE DEFINITIONS OF THE LAW

(From "Truth's" Special Auckland Representative.) A very unusual case came before Judge Herdman at Auckland recently when an appeal was made from a decision of Magistrate Tate, of Whangarei, m convicting a man of assault and indecent exposure,

t"wr N the course of the hearw. ing, the legal definition |m of an assault was |(M|| brought up prominently. llJpljl The appeals were allowed and the Magistrate's decision reversed. A doctor was summoned to a confinement and when ho arrived at the home of his patient he found that ;he had been summoned about two hours too early. Ho had another visit to make elsewhere and proposed to attend it m the interval. The husband of the woman confined/however, was not prepared to allow the medico to do so and took steps to see that he was not permitted to do what he intended to. i The doctor was kept waiting for the confinement at ) the house/ This was a case quoted by v Mr. S. L. Paterson (for the Crown) to Judge Herdnan on the matter of assault to show that m the case m point no physical force was required to constitute assaulj..''^ • -•. ' ' ■ ' ''' ' ; Mr;-^jl. -A. Singer championed th-i cause^ of; the appellant, Frederick Freeman 'Raine, an acting engine-driver-/of -Whangarei. . VCREEPY-LOOkING MAN." According to the evidence of a girl aged 10 years, the accused asked her if she wanted a lift as she was walking along a. "street m Whangarei to visit an aunt. She agreed to go, and stepped into the two-seater car driven- by Raine. The drive, she said, lasted about two ihours. During the return journey the alleged offence took place. . She arrived at the house of her relative much later than was expected. '■■'[ On seeing her aunt she said she would have been thei-e much earlier "but for a creepy-looking man" who had taken her for a drive/ She then told her aunt what had happened. The defence was a complete , denial of the allegation. Accused said that he had been out to test his car, which he had just been repairing. In order to do so he took it up the Tikipunga Hill, which is a recognized testing ground for cars. ' He said that he met the girl on the way and asked her if she wanted a lift. She assented. ' ' When they came to the junction of the roads leading to her destination she hesitated m alighting. ' Accused said she seemed to be enjoying the ride and he asked her if she would, like to go to the top of Tikipunga and she said she would. . Accordingly he took her with him. He was no longer than twenty minutes altogether on the journey. . In oorroboration of, the story told by the accused, Henry Pawson was called to speak of having seen the accused on the Tikipunga Hill on the date m question. He said he was out gathering * wood at the time and remembered accused sounding, his horn and waving to him as he went to and returned from the top of the hill. ■.*';* During that time witness said he had gathered a bundle of sticks and' having done exactly the same since the trial he timed himself

and took only three minutes to cover the ground he covered while accused was on the hill. Witness said he saw a little girl m accused's car at the time. Mr. Singer submitted that there was nothing sufficient to warrant a conviction. '■■■'' <l He reviewed the evidence of the little girl and contended that it was evident she was anxious to give some excuse for being late m her visit to her relative. The Judge: What evidence have you, Mr. Paterson, of indecent exposure? Mr. Paterson mentioned a statement made by the girl. ' NO EVIDENCE OF FEAR.' The Judge: Is that enough? In England it has been held that it is not sufficient to expose before one person only. And what about the charge of assault? There is no evidence of that. Mr. Paterson: Yes, sir. The man was m the position that he frightened the girl. That constitutes assault, sir, if the girl was not a free agent, though there may have been no force whatever. Mr. Singer: There is no evidence of fear, your Honor. Mr. Paterson contended that there were two assaults committed by the accused — one when he drove the girl past the 'street at which she desired to alight and the second as described by the girl. . Mr, Singer: Your Honor must hold firstly that this was wilful imprisonment against the girl's consent. { ', The Judge: Where is there evidence of compulsion? Mr. Paterson: The girl says, sir, that she wanted to get out, but was afraid. All the Crown has to prove is that there was submission. It . was not necessary to show compulsion. ■• The Judge considered that he ought to allow both appeals. In a ■ case of that kind the burden lay strongly on the Crown to prbye its case. On the charge of assault, if 'the Magistrate's notes were allowed aa part of the case, it was admitted, by Mr. Paterson that there was nothing m the evidence to justify his finding of compulsion; Both appeals were therefore allowed and the • Magistrate's decisions, reversed. . . Costs were applied for, but were not allowed by the Judge. .'•■■■ PULMONAS STOP NIGHT COUGHS. The master printer told of his father -in-law whose health was failing. "A night cough troubled him most, broke his sleep, wearied and worried him. Now he takeS| a "Pulmona" pastille on retiring and sleeps undisturbed." Get "Pulmonas" at Chemists, 1/6, double size ,2/6.* SETS YOU RIGHT FOR THE NIGHT.' Take a tot of "Bols" Gin at ■bedtime. You will sleep well and wake as fresh as a lark. Finest thing m the world, too, for sharpening appetites. Three and a half centuries' experience is con- ; centrated into eyery bottle of "Bols" Stone Holland or Dry. Gin. Club or hotels,*. . : .