RESIDENT MAGISTRATE'S COURT.

Otago Witness, Issue 662, 6 August 1864, Page 9

RESIDENT MAGISTRATE'S COURT.

Thursday. august 4.

MR. DAVID MILLER, JUN, AND THE TOWN HuARD.

Mr. David Miller, jun., appeared to answer a c •ruplaint by Alexander M'Leod, chnrcin^ th>»t, on the 28th ult., he used threatening, abusive, an'l insulting luiguage in a puhlic place, to wit, the public r om of the Town Boaid, Dunedin, on a puolic occasion, whereby a breach of the peace might have been occasioned, c rotrary to the 3rd section of the Vagrant Ordinance.

Mr Barton appeared for the complainant, and Mr Wilson for ihe defendant.

Mr Wilson said thst tbe defendant pleaded Not Guilty. But he (Mr Wilson) had a preliminary objection. Tbe defendant was charged with using, in the public room of the Town Board, on a public occasion, .'angusge whereby a breach of the peace might hay* been occasioned. It seemed to him that the Town Board, not quite content with burlesque in their own place of entertainment, had resolved to come into that Court to make their affairs a little more publichad determined- to change the venue from their office to the Court. He did not know how it was to be said that the public room of the Board was h publio place within the Vagrant Act, any more than it could be said that that Court was such a place. These were gentlemen who met weekly to go through n little dramatic entertainment of their own, ju>-t aa ladies and gentlemen met in Mr Holt's theatre- except that in one cose f here was sometimes tragedy, while in the other it was all farce and burlesque. On the stage very hard names were called ; and these gentlemen ef the Board, in their own place of amusement, also called one another very hard nnmes. If the Board Room was to be calkd a public place, and members were to be ftummoned under the Vagrant Act, there would be an end to free discussion, almost. He objected that the public room of the Board waa not a publio place within the Act.

The Magistrate : I shall allow the complainant to go into his cafe.

Mr Barton : To show whether this room is a public place or not. Mr Wilson : You state where the language was used ; and I say that, on the face of the summons, it in not a public place. Mr Barton: His Worship tskes no judicial notice of any place. He must hear evidence on the point.

Mr Wilson repeated his objection If the Board Room was to be declared a public pLce within the Vagrant Act. the public would be deprived nt a great deal of amusement. Mr Burton said that having in the information stated that certain language WBS used in a public place, the complainant had a right to prove it, if he could. Mr Wilson put in the words "to wit." the " public room of the Town Board," but his friend had not wit enoush to make a place private, it it was public The Town Bo^rd was, on certain occasions, by Ordinance, a public court, to which the inhabitant? had a right to go. In thft Magistrate's Court the public had no iipht to be present, except in private or civil matters, otherwise than by leave aud license ; but there was a right to be present at the Town Board meetings, on certain occasions, to make complaints which the Board were bound to hear. This was quite independent of the question whether the publi<; had a right to bs present in th« Board Hooin on ordinary occasions, which he cortendel they had. Tt there was a place to which the public could go as of right, without the leave and license of anybody, all the wit of all bi< learned friends round the table could not ineUf that place a private place. Mr Wilson : Not a private place, but it is not h public place within the meaning of the Vagrant Act. Ifyoußayit is a place to which vagrants tesort. I have uo objection— (aughter); but you have des-cribsd, in tlie summons, a certain place, a d I sny tbat that place is n)t withia the lour corners of the Act. Theie is another objection J

Ihe Magistrate : lam not inclined to expreßS any opinion upon the point raited at this stage. I will hear the case.

Mr Barton said tbat the facto were these. On Thursday the 28th ult , the Town Board was holding a meeting under the 9th section of the Town Board Act, which provided that four meet>nsH sliouid be held yearly— in January, April, July, and October -to make visitations for the purpose of ascertaining the state of streets, roads bridges, &c , and for heari g complaints, ov receiving informations withrespect thereto. The meeting in question was an adjournment of such a quarterly meeting, which had been duly advertised and complaints or informations invited. J here was a considerable number of persons present to make complaints or to hear them discussed. Mr David Miller, junr., a member of the Board, was present, and had taken part in the discussion. Mr Mil'er'a oratory was of a singularly strong kind. Anything from him that was at all within reasonable bounds, although not gentle or gentlemanly, would be allowed to pass. On this occasion, after telling a eentleman that he was not iusul iner him, but that if the cap fitted him, he might wear it, Mr Miller added, I'm a much better man than you —in h^esly especially." The gentleman addressed had the good sense to allow this to pass, and Mr Miller, seeing that the particular cap would not be allowed to fit, subsequently told the whole Board that they were the most obnoxious body in

the Province, and that if they were gentlemen they would resign. It was not a very pleasant thintr so to be to!d, bat still the Board did not resent it; and Mr Miller, to show that he was not gentleman, whatever he might think of his company, did not resign, unfortunately, for a few minutes afterwnrdß, there was conduct on the part of Mr Miller which he (Mr Barton) really thousht his Worship would punish, if there was any punishment for it under this Act- Mr Miller slid that a certain vote was not unanimous, as the complainant had stated it to be, adding, '■ I did not vote ; I'd have nothing to do with you— you're d tools." That was addressed to all these gentlemen ; but one of them. Mr M'Leod, the complainant, Mr Miller called a d scoundrei He (Mr Barton) believed that Mr M'Leod was about as respeotable a man as there was in the town ; and so to be addressed was past endurance. This summons had been taken out in order to ascertain whether Mr Miller, in what was essentially a public Court, could b-j allowed to use such language. It Mr Miller would make the amende honorable, show himself for once a gentleman, and resign, the summons should be withdiawn. 'If he would not do this, and if the Waid to which he belonged was desirous of having his Fervice", then it wa* to be hoped his Worship would compel Mr Miller to speak with rs near an approach to a gentleman as wna po-^ible, while in the Board Kooiu. It Mr Miller indulged in his peculiar oratory in the streets, no doubt the police would look after him, and, no doubt, his Worship would try to restrain him in the uae of such language. If Mr Miller dared fr> use such language in that Court, no doubt his Worship would punish him— — The Magis'rate: I think so— speedily. Mr Barton :lu the "Suprems Court," Mr Miller would soon find what was the penalty ; an t it was now asked that his Worship would prctect this public body, th- Town Bowd, at. nil event*, on public occasions, from being so insulted.

The fallowing evidence was given :— Joseph Massey : I nm assistant clerk to the Town Board, and 1 was present on Thursday last, at an adjourned quarterly meeting for bearing complaints and taking informations aa to streets, &c. There were some of the public pre* cent and most of the members ot the Board were there. I heard Mr Miller uae very insulting language, not only to Mr M'Leod, who was in the chair, but to the Board generally. I heard him say, and I believe he was addressing Mr M'Leod, " You're a d scoundrel.'' He said that the other members were d— — tools. Those of the public who were present could hear him. Mr Ham is a member of the Board.

Mr Wilson objected. The charge was of using language to Mr M'Leod.

The Magistrate : No, the summons does not say to whom he used it ; it saya tht t he used the language in a public place. Examination continued : I heard him use very insulting language to Mr Ham. He said he was a better man than Mr Ham was -that he was honest, at all events. His general conduct was very insulting. Mr Wilson : Do you eon«Fer that if ft man says to another, ''I'm a better man than you are," that he is therefore a vagrant 1 The Witness : It would depend very much bow he sai i it.

The Magistrate : This is not, strictly speaking, a Vagrant Act— it is an Act peculiar to New Zealand, not like it is in England.

Mt Wilson : But it is a Vagrant Ordinance, as every boey knows.

Mr Barton : It is not fill for vagrants— there are vagabonds included, als<\ Cross examination continued : I can Ml how this " little scene" began, lam not afraid of 10-inp my situation, you may depend, nor afraid of a y one here. It began about rescinding the levels of Moray Place. The motion wis adopted by th« casting vote of the chairman. Mr Miller said < that Mr M'Leod was not fit to be in the chair, and he said more—" Whar can you expect from a tool ?" I think that Mr M'Leod was very forbearing. He s<.id he thnutd be obliged to call in a constable He told Mr Miller to sit down. When Mr Miller called Mr M'Leod a d scoundrel, he was standing by the fire, cutting tobacco with a kniie.— (Laughter.) 1 did not hear what led to this remark. The remark was made in a sort of sotto voce style Robert Mnrrny : lama member of the Town Board, and I was present at the meeting last Thursday. Mr Mi ler said a very great deal that was of an offensive character. He said we were all a set of d — tools. A* soon. a<» a certain motion was lost, he went to the fire place. He said, " I'll take it out of you." meaning th* whole Board, Mr M'Leod was still in possession of the chair, and he asked Mr Miller to put out his pipe. Mr Miller itill kept talking away. J think Mr M'Leod said, " We must have this put a stop to ]" and he proposed to send for the police. I «aid, I thought it would be much better to send for the Inspector of Nuisances,— (A. lauph.)

Mr Barton : Because be wort an officer of the Board, and better fitted 10 deal with the case, I suppose 1

The Witness: Yes. Mr Miller enntinupd to goon at a great rate, insulting u=t right and left He used very objectionable language to myself, I heard the expression, "a d soouudrel." I thick it was intended for Mr M'Ltod, as he wain the chair. Mr Miller angered every member of ibe Board. The reports were present i asked them to ta^e the facts as they o* urred, and the Times reporter snid he had done so. Mr Wilson : You thought it so important that you wanted it reported verbatim ? The Witness : I wanted the facts to go to the public. Mr Wilson : And don't yon think it strange that tho report in the Wines does not contain the words, "d rcoundrd?"

The Witness : I don't know, but I told Mr Miller the s >me afternooa that. I had heard him ir»e the words, He u«ed them when he was at. the fire-place. We had not broken up : Mr Grey moved an adjournment when he found Mr Miller so unruly, it wa3 about the time of the talk of sanding for the police that the words were uaed.

Jabez Ham : I do not remember the exact words that Mr Miller used to me, but I felt it to be very insulting It wa3 a kind of holding out a threat ef vengf ance from the ratepayers, because I had not taken views that suited him He said that he was a better man than me— that he was an honest mnn ; politically, I took it, of course. The Magistrate: In a Town Board Benße.— (Laughter.) Mr Barton : Or rather in a David-Miller-junior sense; for I believe that if he would abstoia from these indiscretions, the Town Board would be as orderly as this Court. isxamioation continued ; I felt it at the time bo strongly, that I thought I could not consie-

tently continue to sit at the table with him, and I rose. He certainly did initate me; and had it occurred in a private party of gentlemen, I moefc certainly should have resented It. I think I did not hear Mr Miller call the Board an obnoxious bnly.

Mr Barton : Well, never mind ; I will admit that any body Mr David Miller, jun., belongs to> is obnoxious -that you can't match it in that way so long as he is a member.

Examination continued : I was not present, during the concluding: "-cpnes. By Mr Wi'son : What Air Miller said <'onae wastothia effect— " The constituents who pent you here will make you pay for this ; And I replied that I would not allow hira to u*e insulting language to roe personally. He said, "If the cap fits you, you m-xy wear it." 1 don't know what cap h" meant, I'm sure.— (Lauahter.) John Lazar : lam clerk to the Town Poard. A-t the adjourned statutory meeting last Thursday, there were several members of the puolic present. Mr Miller goo excited in the course of discussion, and used language. —it wa% perhaps only an ebulliti-n of temper at the time that I considered rather infra dig. to tbe Town Board. He used the words •• d tools," and on ope occasion, the word " scoundrel" I heird distinctly. I cou d not Bay to whom it was addressed ; but Mr Miller was standing at the fire-place, and it ras immediately after Mr M Leod had conclude! some remarks, that the word was use* ; what Mr M'Leod said Ido not now rtmtmber ; but it was certainly nothing calculatsd to draw forth such a remark.

George H. FWard : I am a member of tbe lown Beard. I heard Mr Miller call the whole Board a "pack of d t.' 0 !s;" and I hewd him call Mr M'Leod a "A- scoundrel." Hesaid that he had always paid 20s in the pound ; and that several member* of the Board bad not. I heard him say tbat he wai the mosc honest man there.

By Mr Wilson : Mr M'Leoti told Mr Miller to put out his pipe Smoking w not allowed during the siuioßs of the Board.— (A laugh.) The Magistrate : Tobacco would have had a soothing effect one would have supposed.— (Laughter ) '

Mr Barton : I womler whether the frentletnan will Ifglit Mr pipe before he leaves here 1 The Magistrate : I don't think he would do it ft second time. •>

Mr Barfrm : Why should he do it in the Board Room, which was a public court at the time 1 D.sor erlj persons, rogues, and vagabonds axe within the Act-

Mr Barton said all the other members of the Board who were present at the meeting:, were now in attendance, if his friend chose to Call them. They were all outside the court. Mr Wilson said that truly the mountain had ht en in labor and brought forth a ridiculous mouse in this case. The Boaid Room was now io more a publio place within the meaning of the Act than it was when the information was granted. The Act mentioned any " public street, thoroughfare, or place.'' The public room of the Bowd was neither a street nor a thoroughfare. Was a " place" within tbe meaning ot the Act 1 That word was evidently meant to mean, a right-of-way, a square, or something of tbat kind— some placeoutof doors. Indeed, the Act contained the words, "or within the view or hearins of any person passing therein." "'Place' 1 was never intended to apply to the ioside of a building— to & room ia which a corporate body or a body like the Town Boarj held its meetings. Mr Barton : What do you say to a theatre? Mr Wilson : Persons could pass in a theatre ; but he did not know whether the inside ot a theatre was a public place withia the meaning of the Act or not. fie should be prepared to argue that it was not. The bar of a public house was not such a public place, unleß3 it wan so situated that what waa said thsre could be heard by persons patsing In the street. If it wib showu here, that what the defendant waa stated to have said, could have been heard by passers in the street, that would be enough to s.atUfy the Ordinance ; but so long as the words were said ia tones confined within the walls of the building, then the publio room, of the Board wa* no puh'ic place, within the intaning of the Vagrant Act. The language stated waa certaiuly unparliamentary : but it was language such as, he oare say, waa occasionally used by members of the Board, and not intendf d for the public to hear at all. Those who chtne to ri>k hearing it through going to the meetings for their owu amusement -he would not a»y, for their edification— must take the risk : no doubt they were amused by much of what they heard, but no'hing of it could offand the ears of persons passing in the streets. He would take his Worship's decision, whether theie was any case wiihin the mcauin« of the Act.

The Magistrate: The evidence for the complainant having been gone into, f must Fay, 'I consider thtre cannot be a doubt that the language acd conduct ot Mr Miller were wrong and improper in the extreme I • canaot condemn too strougly his couduot; aud that such language should have been used in any public body is most disgraceful. But the question is, whether Mr Miller can be prosecuted under the Vagrant Ordinance. I say tmphatically " JVo." It cannot ba considered that the room in the Towa Board Offices, in which the Board meet*, is a public place within the meauine of the Vagrant Ordinance j inasmuch as (and it i* a strong point) the Board have full power to make it a private place, by requesting the public to withdraw. If the room may be said to be a public place on some occasions, it still cannot he regarded as being so withia the 3rd section of the Vagrant Ordinance. The case muHt fail on tins ground ; but I must repeat that I cannot too strougly condemn the language used by Mr Miller. Mr Wilson : Y'>ur Worship has heard only one side. I have witnesses.

The Magistate; The ca«e fails on the ground stated, ODly If i considered tbat the public room of the Board was a public place wiihin the Ordinance, I would punuh Mr Miller, or Mr Any-one-dse, who used such langunge there. Upon the point of law, the case must fail.

Memory.— A very absent minded individual being upset from a boat in the river, sank twice before he remembered that lie could swim. He fortunately remembered it just before he sank for the third and last time. A great invention is memory. Rough and Ready.— The reason why so much was charged to take people down to the late prize-fight was to make the affair more select, o» the suppodtion-that " the roughs" would nof^" able to come down with " the ready."