A JUSTICE OF THE PEACE CHARGED WITH ASSAULT.

Otago Daily Times, Issue 10112, 27 July 1894, Page 3

A JUSTICE OF THE PEACE CHARGED WITH ASSAULT.

John Toomey was brought before Mr E. II Carew, S.M., yesterday morning at the Citj Police Court, and charged with having, on the 17th inst, at the North-Rast Valley, assaulted and beaten Daniel Douglas Macdonalil. He was further charged with having, on the same date, committed damage upon a morniDß coat and a waterproof, the property of Daniel Douglas Macdonald, doing injury to the amount of £a. Mr Solomon appeared for the complainant, and Mr Thornton for tho defondant, who pleaded not SUMr s Solomon, in opening the case for the prosecution, said informant was Mr Macdonald, a solicitor, and the defendant was Mr. Toomey a member of the City Council.and a justice of tho peace.-(Laughter in tho court.) lor some 18 months previous to tho night of the assault Mr Macdonald had never exchanged a word with Mr Tnnmpv having had a quarrel with nun some tinTago. On this night Mr Macdonald was proceeding to his home in the North-EastValley .by the train leaving town at 11 o clock, there being also in tho car, besides Mr Tpomey, Mr George M'Gavin (brewer), Mr Frederick Smith (tailor), Mr Colin Macindrew (secretaiy of the Otago School Commissioners), Mr Sidney Wynn, and some others. Three or four persons sot between Mr Macdonald and Mr Toomoy. Shortly after Mr Macdonald got into the car Mr loomey gave strong indication of being in an excited condition. Apparently he had been drinking, although not to any extent: at any rate he was not very drunk. Ho began almost immediately to bluster and talk in a loud tone of voice, and, pointing to Mr Macdonald, said: "I will ki'l thnt before Igo home to-nieht!" Mr Toomey generally got off the car at Albany street, but on tins occasion he said he would not get off, and again he. said : I will kill that before I go home to-nisht even if I have to walk back from the Leith. Mr Macdonild at this time was conversing with tome people in the car, and was so little interested in Mr Toomey's manner that he did not even know thatMrToomey was referring to him. When the car reached tho Gardens Mr Toomey got oil, and the car proceeded on its way to Kelvin Grove, but after it had gone a few yards Mr Lomey jumped on it again and paid the conductor another fare to go along the Valley. When the car reached the locality where Mr Macdonald resides the complainant went to tha rear platform, where Mr Toomey was standing, ami \vlii>u the car came to a standstill lie got off. Mr Toomey followed him, and when at the corner of the main road and a tide street— W in fact, as Mr Macdomld got out of the'light from the window of a simp at that corner - ho was attacked by Mr Toomey without the slightest warning. Mr Toomey rushed at him with a fctick, with which he hit Mr Macdonald on the head, the result of the blow being that Mr Mscdonald's hat was crushed in. (Ihe hat was produced.) Mr Macdonald, as they all knew, was unable to walk without using a stick, which he held in his right hand. Mr Toomey again rushed at him and attempted to strike him, but Mr Macdonald held his stick above his head to protect himself, and said to Air Toomey," You cowardly rascal," or words to that effect. Mr Toomey then dealt Mr Macdonald a severe blow on his light hand—the hand with which beheld up hia stick —and the consequenco was that with the pain tho blow caused Mr Macdonald was maimed, and as a matter of fact he did not get over the effects of the blow for several days. Witnesses of the assault would say that Mr Toomey also aimed a number of blows at Mr Macdonald, all of which fell ou his stick before his hand was hurt. Mr Wynn at this moment caught hold of Mr Toomey, and either took hia stick from him or prevented him from using it, and Mr Macdonald made his way to the front of the car and went on the platform As soon as Mr Toomey was free he rushed at Mr Macdonald and tried to pull him oil. the car, but Mr Macdonald pui-hed him off, saying: "You cowardly blackguard, you are a pretty specimen of a justice of the Deuce.' MrToomny continued his attempt to pull Mr Macdonald off the car, aad in doing so he tore two coats Mr Macdonald was wearing. At this point the conductor of the car told tho driver to send the car along, po that they might gut rid of Mr Toomey, and the horses were started at a fa-t pace aloug the road. Then they had the picture of thi* justice of the peace, nt half-past 11 at night bolting along the main road in the North-hast Valley as fast as bis legs would c.irry him to eaten the tramcar, which was taking Mr Macdonald away from bis reach. Fortunately, however, lwth for Mr Macdonald and Mr Toomey, the horses went faster than Mr Toomey did, and lie did not catch up.(Uughter.) Then Mr Toomey went on the Calton (or Lindsay's) bridge and waited there. Mr Macandrew asked Mr Toomey what was the matter with him, and Mr Toomey replied tjwt Mr Macdonald had robbed him of 110, am! that he would wait there for him although he had to wait «11 n'ght. If these facts were proved, counsel submitted, a state of affairs was rerealed that was a scandsl to tho town. Here was a man entrusted with the duty of upholding the dignity of the law, and of punishing those who infringed that law, siing about town, in a drunken, fightable condition, and attempting to do bodily harm to a man who ho kuew was not able to defend himself, the iitst thing he did being to wound him ia the right hand. If these facts were proved, unless his Worship dealt with the sternest ha<id with such a state of affairs no mau's life would be sifo Mr Macdonald, Mr Maeaudrow, aud others would tay that had Mr Toomey not been interfered with he would have done serious injuiy to Mr Macdonald, and he (learned counsel) claimed, under the Justices of the Peace Act, that it was hi* Wornhip'a bounden duty to bind this justice of the peace over to keep the peace-daughter.) Mr Toomey was really not a man lit to be at large unle.-s he had the hind of the law upon him to restrain him. further than that, counsel submitted that Mr Toomey should be severely punished for doing » wanton and cruel act, and he felt confident that after his Worship hid heard the evidence he would come to the conclusion that the punishment should be severe What the nature r.f that punishment should be ho (Mr Solomon) left to his Worship to consider, bearing in mind the fact that Mr Toomey was a man to whom a small sum of money was of inconsiderable importance. Daniel I'ouglas Macdonald, complainant, stated that he came to Dunedin in lStii), but went away and came back, and had been in practice as a lawyer in Duneilin for the last 18 years. Defendant was f irmerly a client of complainant, but cea«ed to become such about two years ogo. About IS months ago bo did something that witness did not approve of, and compliinant had not spoken to him sincn till the 17th iii^t. Witness got into the tr*m with Jlr M'Gavin in Princes street. Defendant was in the car with four or five others. Witness was on the same sid« of the car as defendant, who was talking wildly. When about halfway down George street be heard defendant say, "HI thump the till he cant stand." Had no idea that he was the party referred to Later on he said, 111 kill the this very night." Defendant got out at the Gardens and witness went further down to get home. Mr Montigue, who lived down the Valley got out before witness, and ni he was doing 'co ha 6aid something to witness. When the tram cauie to Lindsay's bridge witness got off' and taw that defendant and three or four others were on the path. Witness went to get off the right-hand side, irad heard someone breathini? very hard, and felt someone pushing up Gainst him It was Mr Toomey. The c ? r stopped a little before the bridge, and anybody on the car could not see round the corner. Defendant followed witness step by Btep without epeakinc When they got round the cornor witness got a blow with a stick over he back of the head The blow wis not a very severe one. The hard hat saved him to a great extent. There were 12 or 15 blow. Witness faced round and said You cowardly blackguard, what do you waut ? anil immediately received another blow over one of the hands, which the next day was as big as a.boxing glove Witness could not walk very well .without the assistance of a stick, being constitutionally lame (lefendant begau to use a ■terrible lot of bad language aud whila the blows rained witness defended himself as well as he could with his sick with which ho warded off lomo of the blows. The 'language was very bad. Defendant was saving that lie would tear his liver out, to which procefs witness Ejected. Witness wore a macintosh coat [which counsel proceeded to invest him in, and this presented a most dilapidated appearance] Several people caught hold of defendant and. pulled him away, and w tnc ? s got on the car. Defendant jumped towards him, when, had he felt so inclined, witness could easily have struck Mm with his stick; but in jilace of doing so he caught him by the throat and threw him away. Defendant returned to tho attack, and the same thing happened, witness saying he did not want to have anything to do with defendant, who leaped at witness a third Uiue, and caught bold of his coat, a portion of which he torn oil. Some one then asked the driver to whip up th« horses aud get rid of Mr Toomey, and the. horses were put into a gallop, Mr Toomey following the tram for some distance. Witnees had never given him any cause for the assault. Had no doubt that the next time Mr Toomey got drunk he would do the same again. Although drunk Mr Toomey knew what he was doing, and was quite active. He had got into trouble several times over his temper when he was drunk. By Mr Thornton : Never did Mr Toomey out of £10 valuation over the Oban Hotel, but had said that ho would have nothing to do with any business in which Mr Toomey was concerned. Had never objected to Mr Toomey as a valuator In connection with a transaction both parties cnose upon Mr Samson as valuer, and this being the case, the other one chosen w«3 Mr W. Brown. Mr Toomey's name was never mentioned on that occasion. Had spoken of Mr Toomey as he had of counsel examining him, but denied being in the habit of persistently maligning Mr Toomey.. In reply to a question whether he had put business out of defendant's way, witness said if Mr Toomey's name was mentioned as a valuer it was very likely he would put tho proposer against him. It was likely that he had done so on one or two occasions. The assault lasted about 15 minutes. Everybody in the tramcar apparently knew witness was goiug to be attacked, and the car waited

tit the bridge. There had boon an offer to compromise for ,-£2O and a published apology. Witness could not say whether £100 was asked, but smneono had come to him about it, and as ho could not bo bothered, he said : " Oh, start him (Toomey) at a couple of thousand.' To Mr Solomon : I have never approached anyone on the subject of a settlement. Dr Keinier gave evidence that Mr Macdonald nonsuited him on the 18th or 19th of the month. His right hand was very much swollen and bruised. Tb« anpearance of the hand was consistent with Mr Macdqnald's story that he received a blow on it with a stick. G M 'Gavin deposed that on the night of the ]i th July complainant and he got into a tramcar going north. Mr Fred Smith was sitliny next to complainant on one side, aui Mr Colin Macandrew on the other. Witness could not say exactly if Mr Toomey had been drinking. He was Unshed a little, and was talking aloud. He was pointing over towards Macdonald, and said he was going to "thump" him. Fred Smith tried to sethim to set off at his street, and told him he would not get a car home. Toomey replied that he was Join'to " thump" Macdonald even if he had to walk back. Mr Macdouald did not interfere or speak, witness getting off at Duke street. To Mr Thornton: Witness did not think that Toomey and Macdonald had not been speaking for Colin Macandrew, secretary to the Otago School Commissioners, stated that he went home in the same car as Messrs Toomey, jMacdnnaW, and others on the night in question. Mr Macdonald, so far as witness could see, was sober. 1 here was nothing peculiar about him. He heard Mr Toomey speaking in a " loudish tone of voice. Mr Macdonald did not speak to him. When the car cot to Albany street Mr Smith said that Mr Toomey should get off, as it was his corner, but Mr Toomey would not get off. When Mr Macdonald got off at his corner Mr loomey also got off. It was a side street Mr Toomey appeared to strike at Mr Macdonald, and there was the appearance of a general disturbance. Someone tried to pull Toomey off, but no one tried to pull Macdonald off. Mr Macdonald saidttiat he did not want to have anything to do with Toomey, and called him a scoundrel or a blackguard. Witness could not say if Macdonald called him a coward. Witnes3 did not see Mr Macdonald act on the offensive. Very likely if there had been no »ne to restrain Mr Toomey there would have been a worse row The car went away quickly, and Mr Toomey followed, running. He did not catch up to it, nor did ho call out. Witness and Mr Smith did not get on the car a»ain but walked rm. When tlwy got to Mechanic street they found Mr Toomey there. He said he would wait for Mr Macdonald, and he would get him Ho said something about Mr Macdonald having done him out of £10. He said nothing about Mr Macdouald having attempted to strike 'ToMr Thornton : Could not say if Mr Tooroey said that Mr Macdonald had done him out of ,U0 or robbed him of it. The car stopped when the row was proceeding, and then went on. Frederick Smith, tailor, living at the .T-orHi-East Valley, said that he was in the car with the others on the night in question. Mr Toomey was slightly under the influence of drink, and was talking a little louder than usual. He made use of the remark that he was going to have it out with some one that night, but witness could not say to whom he referred. Witness tried to get him out at Albany street, but he said ho was going on further. At Union Btreet coiner he endeavoured to persuade him ogam, but Toomey still said ho was going on further, and witness thought he whs going to stay at his brother s hotel, the Great Northern. The car stopped at Lindsay's bridge, and Mr Macdonald and Mr Toomey got out. Shortly after there was a noise, and witness Rot off and saw Mr Macdonald and Mr Toomey apparently engaged in sing esticks. Ho saw Mr Toomey strike Mr Macdouald on tho hand, and Mr Macdonald called him a scoundrel, and said. " You ought to bo a justice pf tbe peace." Mr Macdonald backed towards the car, and when he had one foot on the car Mr loomey tried to null him elf. Tn doing so he tore the waterproof worn by Mr Macdonald. lhe car moved away quickly, and Toomey followed hu'. could not catch up to it. When witness and Mr Macandrew met him again ho » as standing at the corntrof Mechanic street, and ho stated that Mr M-cdo-ald had done hinioutof £10, and he would "havn" him that night. To Mr Thornton : The car stopped on the road for fully 10 minutes To Mr Solomon : Mr Toomey does get the worse of driak sometimes, and when hu is like that he WTo Jl"'°l horntou :He did not attack people promiscuously. Mr Solomon : No; we did not say that. Mr t'urew ; He does not run amuc.;. - (Luighti-r.) Mr Solomon : Oh, no. Evidence was alao given by Thomas Crow, tram Sidney Wyun, living at Normanby, stated that he went down to the Valley on the night in nitration. When Macdonald and Toomey got off the car witness heard the rattle of sticks just as they turned the corner. Witness went up and caught hold of Mr Toomey, telling him that he was very foolish. No one caught hold of -M r Macdonald. Witness let go Mr Toomey, and Mr Macdonald got on at the front platform of the car. Mr Toomev tried to pull him off, but did not succeed. The car was driven a\v,iy rapidly bo as to got away from Mr Toomey. AVitncss did not see Mr Macdonald do anything but defend him-

To Mr Thornton: Mr Toomey appeared to be very active. Archibald Bland, tram conductor, also gave Constable Lynch deposed that bo saw Mr Macdonald on the night of the )~th July at about 10 minute to 12 He showed him his hand. There whs bloo'l on it, and he complained of it being swollen up. The overcoat he wore was torn. John Cnliter give evidence corroborative of that Kiven bi other witnesses in regard to the row. It seemed to bo known by those on thl; car that Mr Macdonald was going to get "rat." Complainant (recalled) said that he paid 10s (x\ for his hat, £3 for his coat, and £'i 10a for his overcoat. This concluded the caso for the prosecution. Mr Thornton, in opening the case for the defence, said the evidence that had been called for the proaecution did not bear out the opening statement of Mr Solomon that Mr Toomey was a bloodthirsty, murderous villain. The evidence went to show that the whole thins was dove on the spur of the moment. Mr Toomey, it was clear, got on to the car long before Mr Macrtonald did — not with the intention of seeing Mr Macdonald, but with the intention of proceeding down the Valley to eco a Mr Short, to get from him the key of an empty house in order that he might give it to a tenant on the following morning. It had also been stated that Mr Toomey was in a drunken state. Now, although ho miaht have had some liquor, he was fully compos intntt*. As to what took place at the bridge, his Worship would £cc that the whole thing only lasted two or three minutes. For a number of months past Mr Toomoy had suffered considerably at the hands of Mr Macdonald. Un every possible occasion the latt.T endeavoured to prevuut "Ur Toomey getting business. MrToomey, amongst other things, was a vainer of furniture and frequently he was employed in that capacity in connection with hotels. Mr Macdonali was solicitor for the Licensed A'ictuallers' Association, and as such was brought into connection with people who were selling and purchasing hotel property, and therefore he had tho advantage of recommending whom he wished for the work of, valuation. 11 v and Mr Toomey had fallen out Rome months ago, and ever fiinco Mr Macdonald had maligned him and had endeavoured to injure him in every possible way us regarded business. Mr Miiciiouald denied that he had been instrumental in preventing Mr Toomey getting the work of valuing the Oban Hotel, and it was concerning this matter that, Mr Toomey wished to speak to him on the night in question. When he spoke to him near the bridge no doubt he expressed himself pretty freely as to what hud occurred. He asked Mr Macdonald why he had been perfecutinu him in that way. Mr .Macdonald raised his stick to attempt to strike Mr Toomey, but the latter Guarded the blow off. The whole affair only lasted a few minutes, and if auy blow was struck by Mr Toomey it was done on tte spur of the moment. If MrToomey wished to indict auv bodily injury he could rasily have done co. Mr Macdonald was practically the aggressor, although Mr Toomey, not wishing that the matter Bhould come into court, had otferod to make reparation. He had gone so fur as to offer a personal apology and to pay £10 towards the expenses and trouble Mr Macdonald had been put to. Instead of accepting that Mr Macdonald's counsel had pointed out the necessity of punishing Mr Toomey on the ground that he was a wealthy man. Ho would call one witness who would prove that iIOO was demanded as a eettlemeut. Mr Solomon : That is not true. Mr Thornton : I have a witness to prove it. The Magistrate : I will certainly not hear the witness. Mr Thornton stated that of course under those circumstances he could not call the witness. But what he wanted to point out was that the whole ail'air had been exaggerated, and was not at all sulliciently important to justify his Worship in binding Mr Toomey over to keep the peace. Mr 'i'oomey, not in any admission of fault, had made every reasonable reparation, and there was not the slightest danger that II r Macdoinld would in any way be assaulted by him in the future. John Tonrney, ilia defendant, said thnt he was going to Thomm siliort'^ place in the Valley on the evening of the 17th iuat. The car ttopped at Lindsay's bridge, and defendant got olf after complainant to have an explanation about his conduct during the past 18 months. He went to him and said, "I want to speak to you about what took place over the Obau Hotel." He replied, " I want to have nothing to do with you." Witness then Faid, "You have been siying everything that would do me injury in my businuts " He (Mr Macdonald) pushed wituesa away and put up his

t-tiok with his right hand a< if to strike him, and he (witness) defended, aud at the same time came down on complainant's bead, lie never attempted to use the btick until he was assaulted. Same people came olf the tram, and thuy were separated, and being rather quick-tempjred defendant wished to see the thing finished. The whole thing could not have lasted more than a mi'Qutu. Defendant might say that within a very brief

period Mr Macdonald had said that he would give iso to see him (defendant) ruined.

To Mr Solomon : Knowing that Mr Macdonald had for a considerable time been blackguarding him and trying to tako business out of hisi hands, defendant was excital when he saw Mr Mac-

df.n^ld on the car. Mr Short lived between the Gardens and L<ndsay's bridge. Why witness went on the bridge wua that no wanted to ask complainant to desist from persecuting him. Did not go to Short's that night at all. bemuse hu probably forgot all about it. Ho did not like to disturb Mr Hhort at so lito a_ hour. Mr Solomon: You did not mind routing Mr Short out of his bed at half-past 11, but you did at 12 o'clock. The crossTexaminat ion being continued, defendant denied striking complainant nix times. Mr Macdonald struck at defendant once. Witness wanted to get on the tram after the affair to go on further. Mr Solomon : Where to V Defendant: That I could not tell you.—(Loud laughter.) For the moment I was so excited I did not know what I was doing. Mr Solomon : Then what you ask us to believe is that at half-past 11 o'clock you were chasing a car going to Normanby, but you don't know what for, and you don't know where you Intended to go to. Further cross-examined, defendant said he had no remembrance of saying that he was going to stop ou the bridge all night. Ho could not tell what he was waiting on the bridge for. Perhaps he was meditating. Mr iSolomon: I suppose you were trying to think what you were doing running after the tramcar? ... ' Defendant: I suppose I saw tho tramcar going along and ran after it. Mr Solomon: And you don t know what fpr, and you wero perfectly Bober ?