SUPREME COURT.—CRIMINAL SESSIONS.

Otago Daily Times, Issue 7222, 10 April 1885, Page 4

SUPREME COURT.—CRIMINAL SESSIONS.

THUEBDAY, APRILIS, (Before his Honor Mr Justice Williams and a Common Juiy.) ASSAOLT AND BOBBERY. Jamoa Eastwood aud James Myall were placed in the dock charged with assault and robbery. In this case the! jury failed to agree, and were locked up all uight. On the Court resuming Mr V. A. Coxhead, the foreman, stated that the jury had boen unable to agree. His Honor: lam very sorry to hear it, and very sorry you were put to the inconvenience of beiug locked up last night, but it was un avoidable. I suppose there is no possibility of your agreeing ? The Foreman : The jury are not unanimous. We want assistance.

His Honor: You mean to say that if I were to form a thirteenth jmyman you might be able to settle it ? Well, all the advice 1 can give you mußt be given in the opsn Court, before the prisoners. The Foreman : There is no possibility of our settling the matter in our present, state. His Honor: You don't think there is any advice I can give, you 2

The Foreman: I don't think that would be fair, your Honor. His Honor: Then you must be discharged, and a tresb trial ordered, You propose to try the case again, I suppose, Mr Haggitt 1 Mr Haggitt: Yee. Hia Hooor remarked that there would be a I fresh jury panel on Monday, and the prisoners could Ue tried theu. Mr Solomon had no objection to the postponement of the trial if Myall wan released on the same bail as formerly—two sureties of £25 each. Mr Haggitt did not think tho bail was at all proportionate to the cffenoe. The Gfrand Jury having found a tnia bill against the prisoners tor highway robbery, the bail would be ridiculously small. His Honor remarked that the case was in a different position from what it bad occupied now that a true bill had been found by tbo Grand Jury and a common jury had disagreed respecting it. j>ir Soiomon said that if the bail was to be increased he would ask that the case unould be gone on with on the following day. His Honor: No, I think it is reasonable there should be a fresh panel. He can go ou bail if he can get two sureties of £50 each; otherwise be must remain in custody till I Monday. It ib not very loDg.

ASSAULTING A CHILB, Alexander Fleming was charged with beating and ill-treating his bod, a child 11 years of age, at Kensington ou the 12th of March, thereby occasioning actual bodily harm. The Prisoner pleaded Not guilty, and waß defended by Mr J. Macgregor. Mr Haggitt, in oponing the case for the Crown, Baid: Gentlemen, the indictment just read to you charges the prisoner with haviug, on March 12 last, committed an assault upon one John Fleming, and by means of that assault occasioned to the said John Iteming actual bodily harm. Now actual bodily harm, in the sense in which the term in used in the indictment-, does not necessarily mean any injury of a permanent character inflicted upon the person assaulted. Anything that would j tend to the serious discomfort- of the person | assaulted is an assault occasioning actual bodily harm, and it is not necessary thero should be any permanent injury or even very great injury, but such injury as interferes seriously with the comfort of the person assaulted. In this owe, John Fleming was the child of che accused. The mother of the child bad died some four or five months before this occurrence took place, and the prisoner had married again, and ho and the stepmother and the three children lived in the neighbourhood of Kensington. On the night of March 12, after the prisoner came home, it waß reported to him, apparently by the stepmother of these children, that the boy had struck bis Bister, who waa a little younger than himoolf, and had inflicted a pair of black eyos upon her. Whether it was so or not—l do not know whether it was bo or not—is not a circumstance which you need trouble yourselves with, but it is with what the prisoner did, in consequence of the information that was given to him, that you are concerned; and what you will have to inquire into is whether the prisoner aotod in what he did in the way in which the parent of the boy was justified in acting, or whether he exceeded what his powerß wore in that behoof, and ill-treated and ill-used this child so as to bring himself within the scope of the criminal law. VVhat he did, as you will hear from the eviddnoe, is this; Tho boy was in bed, and tlm tather wont into tha room, took him out of hie bad, strippod him naked, tiod him to the bedpost, and then with a carter's whip, which will be produced—such a whip, I suppose, as he usou aa an cxpiesa-driver,—be lushed this boy most unmercifully, and left marks upon him which wero distinctly visiblo oight days afterwards whon examined by a d ctor. The next day after having treated the boy ao, he took him to tho place whore ho went to school, caw tha schoolmaster, Mr Moore, and gave him an account of what had occurred, tolling him the reason for treating the boy ai) bo bad done. But instead of telling the truth about it —instead of Baying he had bputenthe boy in the wn;? ho bad doco, be told Mr Media that ha tysd used a short oaae, dskcrib- 1

Ing the length of it, and Baying that with that cane be had marked the boy. Gentlemen, I put it to. you that when the prisoner, did thia he must hava known that ha had dona more than he could, justify da being dona in:the way of correction; aud the explanation of the Ha which he told the schoolmaster is the faot that he did know tint he had no right to treat the boy as 'be ' bad, trotted htm—that ha had exoeeded the b uuda of justifiable punishment in using tmoh a weapon as he did uuo to the obild on the previous night. I need hardly tell you, becaino, you niuat know, gentlemen, that a parent ia jus'.itittd in iuflisting upun his child reasonablo ehustiaemant tor faults committad. As I have already stated, it ia not for you to inquire into the nature of the fault which the child did commit. Oa thin occasion your business is confined to the chastisement which the child received. You will have to say whether that chastisement was reasonable lin its character or not. If it was reasonable the prisoner was justified in iuflioting it, but if it was unreasonable then he deseryss to be punished for it; and it will bo your duty to say whether he deserves to be punished for it or not I have told yon, gentlemen, what tho circumstances of this punishment wore. Here wrb a child about 11 years of age dragged out of bod at night, stripped naked,, tied up to a bedpost, and beaten with a cart-whip. I ask you, gentlemen, to judge for yourselves whether such punishment as that can b9 considered as a reasonable mode of correction for a parent to adopt towards hie child, I do aot care what the provocation was—whether it was great or small ;* you, will leave that out of the question entirely. For the purpose of considering the matter, say that tbo provocation was as great as any child of that age could possibly give to cause a parent to correct him, I ask you, then, giving tbe prisoner the full benefit of that —the (ull benefitjof any provocation he could have received from a child of that age,—to say whether tbe puniahui3nt was such as a reasonable person, acting in the course of his duty in punishing » refractory child or a bad boy,' would be justified in inflicting. That, gentlemen, ia the question which you have to try, and in coming to a conclusion upon the (subject you have to take into consideration tho age of tbo child, thu time when the punishment was inflicted, tho manner in which it was inflicted, and the weapon which was used for tho purpose of inflictiug it. If you come to the conclusirn, after hem ing all the evidence, that tho chastisement was reasonable and proper chastisement for a parent to inflict upon a child, tho prisoner is entitled to be acquitted ; if, on the other hand, you come to the conclusion that the banting was cruel, unjustifiable, and unreasonable, then it is your duty to convict.

The evidence was then taken, and was substantially the same as was given before the Police Court. The witnesses examinod were: John Fleming, Mary Fleming, W. J, Moore, Dr A. J. Forgussoa, and Sergeant Macdonell.

Tbo boy Fleming in the course, of his cvi deuce stated that his father did not strip him, but camein just as he wasgoing to put his nightshirt on, and then tied him to the bedpost with a rope and beat him, giving him about seven strokes with the whip. In cross-examination the boy said.his father had always baen kind to him before, and had always been veiy fond of him and bis sister, but that he did not want to go back to his ia'-her. The case for the prosecution being closed; Mr Macgregor said he proposed to call witnessed to prove that tho prisoner's habitual treatment of bis children wai kind.

Constable May deposed that hs had known the accused for about four years, and had been on terms of intimacy with him. He had not visited him within the last three or four mouths, but previously had often been at his house. Witness believed that the accused then treated hitf children kindly. They were clean and cheerful, and he never saw anything wrong with them, Prom what he kne.w of the accused he did not expect he would ba unkind to his children, and was surprised when h@ read of this caaa in tbo paper. Colin Allan deposed that he had known the accused for 15 years, and had been twice to his house. He had always found the accused a quiot decent man, and had truutod him a good deal. He did not think the accused was a man who was likely to be guilty of any cruelty to his children.

James Ward (a bootmaker) deposed that he bad lived next door to the accused for a year and eight months, three years ago. He was frequently in the housa of the accused. The accused was always affectionate to his children, and treated them kindly.

To Mr Haggitt: That was about three years ago, and the prisoner's liryt wife was alive. Sergeant Gsariu said that he had known the accused for between 14 and 15 years, and had always fouad him a quiet, sobsr, and industrious man.

Mr Macgregor addressed the jury on behalf of the prisoner at considerable length. The charge, he remarked, was a very serious one— ao serious that the law provided for the offence a penalty of three years' imprisonment—and he thought no one could point toauother case of the uort where a muu had been put in such a position as the prisoner occupied upon such extremely slender grounds. The case he believed to be unprecedented. Hero was a father who, according to tha evidence, had been affectionate to bin child, never having beaten him but once before (itud > hen with a strap), charged with an offence rendering him liable to three years' imprisonment, for giving hie boy a whipping when he believed ho deserved it, and when the evidence showed that the father, although he might have been mistaken, believed he was acting for the good of the boy. If they found the accused guilty of this offence any one of them who was a father, if he gave hia child anything like a smart whipping, would be liable to have a policeman force his way into the house, examine the child, and if he found a mark on the child get up a howl against the parent, and make him, as the prisoner had been during the past few weeks, an outcast of society. What the law said was that a father was not to chastise his child for the purpose of gratifying his own passion, or of giving vent to his own ferocity; but the law did not make it a criminal act if a parent gave a sharp whipping to a child believing that the child needed correction. He did not wish to Bay that the boy was a bad boy—as representing the parent, tmch a course would ill become him; but tha boy had admitted beatiog hia little sister, and ibe father was led to believe that he was becoming unruly and that chastisement was uecessary. The father had been previously over indulgent, and in decidiug that the boy should be whipped for what he had done he was only acting as a parent would ordinarily do. The evidence showed that the whipping was not severe, that the blows were not many nor given rapidly, as they would have been had the beating been severe, and that the blows were not haavy was apparent from the fact that the boy did not cry out. Before administering the beating the father actually sat down in the kitchen and cried like a child, and the reason he tied the boy to the bedpost was not bo that ho might beat him unmercifully, for that he had not done, but because, having made up him miud to whip the boy, he thought that if tho boy struggled with him he would not be able to give' him such n whipping as ho beliav6d the boy deserved. AHer ne had beaten the child, the prisoner said he had beaten him once, and he hoped it would do him good, but whether it did or not, he could never beat the boy again, The learned counsel argued that the evidence did cut in any sense support the charge iv the indictment, and claimed an acquittal for his client, His Honor, in the course of bis Bumming up, said: It is only in an extreme case that the law interferes between a parent and child—only whore it is necessary to protect the child from the acts of the parent. Ono parent may think —and for my part Iso think—that tha less use that is made of the rod the belter; that the bust way of bringing up children is to use a little firmness, a great deal of good-nature, and as much taot and sympathy as possible. My neighbour, however, may take an entirely different view of tho way iv which children ought to be brought up. He may think that to spare the rod will spoil the child, and he is justified iv acting on that belief, provided that ha duos not unreasonably exceed that right. He has uo business to hit a child for the gratification of bis own passions; nor has he auy business to chastise a ohild in such a way as may tend to injure the child or to iuterfera with tho health of it. What you have to decide is whether the accused has gone beyond his rights. , . . When I read the depositions and saw that tho whipping had beou indicted with a cartwhip, I was under the impression that the accused had taken a whip with a lash to it and used tho l.wh to the child, the name way »s though he was boating ft refractory horse. That, however, does not appear to have been tho caao. It wns the stem of a whip, and the whipping was iuflioted, not with the butt end, but with the other part. It is for you to say whether you think that such an instrument ■. was a propor ova for a purpose of this kind. I So far as I oau see it depends very much on tho vigour with which it waa applied, and it would be possible with such an instrument as that to give a light beating, and also possible to give a very cruel one. . . The indictment may bo looked upon in three ways: First, did the accused Rive his boy an unreasonable beating, and infl ct upon jiiin actual bodily harm? If he did so the accused is guilty of the indictment as it stands. Second, if toe ao ousod gavo tho child an uareasonable beitiug, and still you aro satiefioi there was uo prejudicial intorfaranco with tho wellbaing of tbo child, tnen ho would be guilty of a common assault. If, however, you aro not satisfied that tho accused has goao beyond the exercise of bis rights as n parent, then tne accused is entitled to1 bo acquitted. After a short retirement the Jury returned a. verdict of "Not guilty." There was some attempt at applause, which was immediately sunprassod, whan tho verdict was roturned. The prisoner was discharged. Carrie Fleming (28), who on the previous day pleaded guilty to two indictments charging her with assaulting her stepchildren, was than brought up for sentence.

Mr Macgregor : May it please your Honor, tho indictment that the accused has pleaded guilty to is, as your Honor has already pointed out, of a nature that raogcu fcbm a veiy serious offeuco to a comparatively light one; and although it is not for mo to excuse or justify— and I do not intend to do to —the conduct of tho accused, still your Honur, having tho faetu before you, may, I think, view her cu'eo in this light: that her conduct in whipping the children undoubtedly shows that the was not actuated by any ill-will toward* th. in, but merely acted fi-oin a want of sympathy or a want of physical utility to enter iutu iha feelings of the children, Your Honor will see by tho depositions that tho children appear to have been kept very comfortable, tidy, and neat; and it seema to ins that the offeuco of tho accused amounts to this: aho committed an error of jiidgmeat as to ho-.1 mode of treatment of the chU(ken, Eha

it evidently a particularly careful per»on in bar notionH as to how ohildren .should be brougbt up, and has apparently adopted ft wrong mode of treatment, which cannot be excused. That, I submit, your Honor, is tbt'moßt that can be said against the accused. It is not in- ' consii tent with the faota that she balioved the children required whipping, and that nothing eljie but whipping would do tbi>m any good. If your Honor comes to the conclusion that Bhe was guilty of a mere error nf j id jnient as to the way in.which the children should ba treated, and that Bhe was not actuated by motives of ill will, these are matters wbio'i .-Wight weigh with you in the sentence you muy be pleased to pass upon her, I could have brought evidence as to character, but probably your Honor will agieo with me that this caso in not in the nature of an ordinary crime, aud tbat witnesses to character would be altogether unnecessary. If your Honor will take the view I suggest in meting out punishment, that * is the most I can ask, ' ' ■ His Honor: Prisoner, I am unable to ogrco with the suggestion of your, counsel, that ia flogging those poor children you acted from au error of judgment only. On the contrary, it soemo to mo from the depositions, aud from what I have heard today, that your conduct evidences tbat you were-actuated by a cruel mind; and it seems to mo fortunate that a charitable neighbour interfered and put n stop to your proceedings. ■. There is no doubt that both the boy and the little child received grosa ill-treatmont at your hands—ill-treatment which appears .to rue to be altogether without justification. . Standing in the position which you do to them, it was your special duty to treat them with kindness 3. r The sentence of the Court is that you ba imprisoned, in the common gaol at Dunedin for the term of two years, and kept to hard labour—two years on each indictment, the sentences to bo concurrent, making two years in all. ' , The prisoner, who was.much affected, wns then removed from the dock, The Court rose till 10 ».m. on Monday.