THE WAIN CASE.

Otago Witness, Issue 1640, 28 April 1883, Page 8

THE WAIN CASE.

Thursday, 19th Apiul.

The adjourned charge of manslaughter against Margaret Wain and Frederick Wain was proceeded with at the City Police Court on Thursday, 19th, Mr J. Logan, J.P , prebdng. Mr Haprgitt conducted the prosecution, and Mr Deuniston appeared on behalf of the accused.

Mr Denniston mentioned that the case was likely to be a very protracted one, and at his request both accused were accommodated with seats in the dock ; a request that the male accused should be provided with a seat next his counsel being refused

Mr riaggitt, in opening the case, said : The prosecution propose to prove by the testimony of witnesses a long course of cruel and inhuman treatment to this child, and then to show by medical testimony that the effect ot that treatment wa* likely to cause tuberculosis in a child not predisposed to that, or in a child disposed to tuberculosis to develop it much more rexdily than it otherwise would be developed — to cause it to become dangerous when otherwise it might never become so ; and generally to show by reeans of that medical evidence that tho treatment to which this child was exposed was such as either to occasion disease which would cause death in a child not predisposed to it, or if the child were predisposed to it to accelerate the death of the child. Of course- in either case the result would be the same— that the persons guilty of such treatment would be guilty of manslaughter. Madina Doig, living at Maybank, NorthEast Valley, stated that she BOir.e time ago lived next door to the accused, who afterwards shitted their place of abode to South Dunedin. She knew the deceased Joseph Henry Wain, who was liviug with his parents when they lived next door to witness. She u--eiJ to see him occabiou.dly, and at that time he looked just like a poor, btarved, ill-used child. She had no opportunity of seeing how the child was treated. On one occcasion she heard Mrs Wain scolding him, ami what semiied to hi the so'ind ot a lash. She went lound to bee. what was going on, and heard the child in the most mournful voice sha ever heard crying, " Oh, mother ! Oh, mother !" and then Mis Wain's voice myi>ig, I'll ' Oh, mother ' you. I'll learn iou to keep her quiet !" Mrs Wain had a female baby at that time. Witness would not think the deceased looked to be more than six years old at that time, and h& was a very thin, dirtylcokiug child. She uo\er saw the child playing, and u^ed to feel vexed for him. He mcd occasionally to walk up and down a narrow beaten track, and Mrs Wain never took him out with her.

Agnes M'Grath, a little giil 11 years of age, residing with her parents iti Cargili road, South Dutiudiu, stated that on one occasion some time th:s .> ear she saw the deceased with his lather at the Caledonian Society's grand stand. The deceased was in her presence locked in a room there by ilia father. This was about 3 p.m., and the accused put the key in his pocket and walked away.

Margery Diack, a resideut of May bank, Nortli-JSast Valley, retne'nbe.red the accused coming to live at May bank two years ago. The two child) en, Job and Henry,, resided with their parents. Witness lived next door to the accused, who did not go about very much. She saw the deceased very frequently. He was generally kept outside, aud often in cold and wet « eather. She had seen him out from 7 in the morning till 5 at night, and there was very seldom anyone with him. He used to walk up aud down the garden, or backwards and forwards on the path. He used sometimes to assist his brother to saw the wood. He always looked very miserable, and was not well clothed. At fii'Bt he used to have boots on his feet ; latterly he had none. He used to come to witness and ask for food.

Mr Denniston objected to this form of answer, and it was agreed to put down that witness gave him food. Witness continued : He seemed very much in need of food, and ate very fast. Accused used to drive a cart at that time, and went early to work, returning for dinner at 12, and after 5 o'clock in the evening. Mrs Wain was left in the house during the day, and during the latter part of the time they lived there she went out very often. She used to go away after 10 a.m., and comeback about 5 p.m. She used to take the. deceased's Bitter with hor, but never the deceased. The male accused usi-d U> i>o away with her whon be was nut working, but thoy never took the boy with them. H« wan generally left alone in the garden till thoy oauid back. Sometimes his brother used to be left with him. The doors of the house on those occasions wore apparently left closed. About two years ago tho boy came first to witness. He came once afterwards on the same da-y, These were the occasions on which

if. asked for food. Deceased always looked uuoh about the same during the time he lived at Nhi h-JScVst Valley. Witness once heard a uoi-u coino from the inside of the accused's iu>u-e as if somebody was being beaten. This wa- 1 when the male accused was away at work. ->ho also heard a little boy crying in the house. Witness sa w Mis Wain beat the deceased on two occasions at the back door." Once she slappud him in the face with her open hand, and again struck him with a switch several times. On the latter occasion Mrf Wain did not leave off bnating him until she saw witnesß. _ The latter beating was shortly previous to their leaving for South Dunedin. Mary Ann M'Kay repeated the statement made by her at the inquest. She also statod that wtieu the deceased first came to her paients' house he was so hungry that he gathered up the crumbs of bread given to him, aud ate thorn.

John Ogg, of the Caledonian Hotel, also gave evidence similar to that given by him at the inquest.

Martha M'Eachern (also examined at the inquest) stated that, shortly beiore his death, hh« remembered seeing deceased at the wiudowledtre in one of the rooms of his father's house. He beckoned to witness to release him. She went round to the house and saw tho deceased, tie was such a sight that shu was frightened. He was raving for a drink, and to get out of the house. He had no coat ou, and his arms, were bare to his elbows, and his trouseis rolled up to his knees. He was trembling with cold. He had a cut on his forehead and a black eye.

During the examination of this witness the question of the udinisuibtlity of the statements made by the deceased to witness a3 evidence was discussed.

Mr DeniiLtton objected to such evidence, and pointed out that if it was taken it would be a great hard-hip to his clients. It was very unfair for his learned friend Mr Haggitt, after it had been all along excluded, to now (after hearing a remark from his Worship to the eifect that he was prepared to take such evidence) ask that it should be taken down in the depositions. It would not be admitted in the higher Court, and the only result of the admission ot it would be to add to the popular prejudice that already existed regarding the case. A great deal of injustice had already been done to the accused by such statements, which they had no means of contradicting. If he (Mr Denniston) could not prevent such a course of procedure, he would certainly object to it as being utterly inadmissible, and would not treat it as evidence ; neither would he cross -nxatnine on it.

His Worship cited cases which he stated were in favour of such evidence being taken. It might not be used as evidence when the case went to the higher Court, if it went there at all, and he saw no harm in taking it down.

Mr Denniston : Oh, well, then, it's no use me protesting further. It is absolutely hopeless for me to contend against auch a decision.

After further discussion of a similar nature, the examination of the witness was continued, and she detailed how the deceased, in answer to her questions, stated that his mother gave him the blauk eye and broke his arm with a stick. She also detailed the statements made by the deceased relative to the food he received, as previ >usly recited by her at the preliminary inquiry. Jane Forrester again gave evidence regarding the condition of the deceased when taken from his parents' house at South Duuedin by the neighbours. He appeared to be in a very weak condition at the time, and drank two and a-half cups of tea and ate a large quantity of bread and meat. At 5.30 p.m. the case was^adjourned till 12 noon to-day.

Friday, 20th Apßii,

Frederick Wain and Margaret Wain were cha ged (on remand) with the manslaughter of their child, Joseph Henry Wain. Mr Haggitt conducted the prosecution, and Mr Dbtmiston defended the accused.

Agnes Wright, .living at South Dunedin, gave cvi ence as to visiting Mrs Wain on four occasions boon after her confinement, about the end of January last. Witness saw the deceased Joseph Henry Wain going through the b<ick yaid, but never saw him in the house. On March 3rd she saw him standing alongside the inside sill of the window. He was beckoning to tho neighbours at the back with his hand. His mother and father were out at this tune, and when they returned witness heard sounds of a thrashing. The beating lasted two or three minutes.

To Mr Denniston : Mrs Wain was confined on January 27th, aud witness did not see her till Febiuary Gth. On the latter date Mrs Wain was in the back yard, which adjoins witness' yaid, and Mrs Wain abke-d her in. The Wains kept no servant.

Jane Wright, daughter of the last witness, had seen the deceased in the back yard of his parents' house. She had never seen him playing about. Whenever he was in the back yard he was running as if he was in very terror of his life. On March 3rd she saw him trying to open the window, but failing, he beckoned to the neighbours to go to him. Nobody went to him. On the 19th February witness saw Mrs Wiun beating the boy. She was beating him svith a leather belt outside the kitchen door. Job and the deceased were washing their trousers outside. Job had finished his first, and was going to help his brother, when Mrs Wain said, " Let the dirty brute do it him-.-elf." Job went away and left the deceased to wash his ti ousers. Mrs Wain then stepped over to where the boy was, and beat him with a strap which she had in her hand. She came down very hard ou him. He looked up into his mother's face and said somethiug to her, but did not cry. She then hit him again with the strap, and called him a dirty beast. She hit him several times after that, and witness being unable to Btand it any longer went away. To the Bench : The beatings were very heavy, but the child did not cry. Mr Denniston : That is the best evidence of the severity. Mr Logan: Yes; but onlookers can judge, too.

Mr Denniston: but they are liable to be carried away by their feelings. Witness continued : I was looking on for about 10 minutes, and the child was being beaten, off and cm, all that time. To Mr Denniston : I saw more than half-a-dozen blows struck— l should think about eight or nine— while I was looking Agatha M'Caude remembered the Wains coming to live next door to her at South Duuedin. He knew the deceased. On the 26th February shu saw him at the bedroom window of Wain's house, and Mrs M'Eachern gave him some bread through the window. The child seemed to eat as if he was very hungry, and said he was. After Mrs M'Eachern went away deceased stood ou the window ledge and screamed to be released. His screams wore pitiful. Margaret Brown, residing in Waverley street, South Dunedin, stated that on the 2nd March she saw the deceased, who was pleading hard to get over the fence from his father's back yard, He owiwd very mumble «jd

wietched-lnoking, and said he was very hungry and thirsty. He ran thiough a holo'in the fence, and into Mrs M'Eachem's house. Whon witness saw him she could not sp-a,k— she was quite par.dyr.ed at the sight of the poor little thing. He had Rome food in the house, and ate it very eagerly. Witness described the bruises on the deceased's body. The child said the bruises were caused by his mother. Mr Denuiston agaiu drew attention to the inadmissibility of hearsay evidence. Mr Logan said there could be no objection to the evidence being taken in that Court. Anna Gorcott, a neighbour of the last witness, stated that she visited Mrs Wain about February, and remarked what a good boy Job was, as he nursed the baby so well. Witness did not see the deceased in the house, and Mrs Wain did not let her know of his existence, though she stud her husband had another son, 20 years of age, who did not live with them. On the 26th February witness saw the boy at the window in Wain's house, at tvVo d.tferent times of the day. When- she saw him in the afternoon he had his hands up, as if beseeching, and also appeared to be crying. She did not go very close to him. To Mr Dennistou: I was not nearer than 20 or 25 yards.

Job Wain, brother of the deceased, 15 years ot age, stated his brother was 7J years ol agd at the time of his death. The female accused had been his stepmother for about four years. They used to live in High street just' after witness' mother died, about four years ago. Mr Dennistou : I do not see that what occurred four yeai s ago is evidence. Ido not see what object there can be in goinjr'back so far.

Mr Haggitt : Hold on a little, and you'll Bee the object. ■•

Mr Deuniston objected to the evidence, unless Mr Haggitt stated his object. He might as well go back 20 years. Mr Haggitt: Oh no, that would be impossible; we cannot go back more than 74 3 ears, the age of the deceased. lam hoi compelled to state my object in going back so far. The object would be defeated if I were t'd state what it was. Your Worship will easily understand that. His Worship : Yes.

Mr Denniston : YVell, it is very irregular. Witness, continuing, Btated that about 12 months ago ha went to work at Mr Munro'a monumental works. He used to leave hdme at 6 a.m. and come back at 5.30 p.m. His father used to go to work at 7 and return shortly after 5. Henry and Mrs Wain were left in the house. Witness slept with the deceased, who at that time was in good health. This was while they lived at Opoho. When they lived at South Dunedin witness'slept with his brother in a room underneath the grand stand.

Mr Denniston here rose to make an explanation, bub was inteirupted by '

Mr Haggitt, who said he did not want; any explanation from his learned friend. He asked the Bench to interfere now, and put a stop to it at once, so that the inquiry might bo conducted in an orderly and proper manner. Mr Denniston said the child was of a young age, and Mr Haggitt was, either deliberately or otherwise, confusing him. If bis'lWned friend challenged him, he (Mr Deiuiiston) would challenge in return. He had simply endeavoured to set the witness right, knowing the position of the case thoroughly, and instead of receiving courtesy he was told what was untrue— that he was not conducting the case iv an orderly way. Mr Haggitt : My learned friend knowsj when he states that I am deliberately confusing the witness, that he states what is not the case. Mr Logan : The witness is right- flow. Mr Dennißton : Yes, but that i 8 the result of my explanation. My friend Bhould have allowed the witness to tell his own story, and not lose his temper. " ' f Mr Haggitt : No, I never lose my temper. Mr Denniston said an attempt 'was being made to. lead the witness, and he| in the interests of his clients, had a right to make the explanation. Mr Haggitt did not know what he was talking about, and he (Mr Denriiaton) did. He could pardon an insult when one lost his temper ; when the temper was maintained, of course he must tjeat the remark in another manner. He was only endeavouriug to extricate the witness from the confusion into which he wa< being led by his friend Mr Haggitt. Mr Haggitt : A boy of 15 does not require to be prompted by counsel. ' ~ ' Mr Denniston : No ; but he can very easily be led by counsel. Witness continued his evidence: The deceased was nut in the habit of playing with other boys, and witness did not know the reason of this. , He did not know when deceased got either his breakfast or dinner. Deceased used to play about the grounds in the mornings by himself. In the house in Broujrhton street witne>B also slept with his brother, on the same stretcher that they' had in the grand stand. He and his brother used frequently to play at "tig" and'"hide-and-(.etik " in their yard in Broughton street, and during all this time his brother was quite well. When witness came home he frequently found his brother in the back yard or in the bedroom, more frequently in the latter. When in the bedroom he used . to be occupied with his lesson - book. ' Witness remembered taking his brother t > the gates of the Caledonian grounds after his aunt, on account of her illness, refused to take him in. Witness saw him again that day in the back bedroom at his book. He remained at his' book till he went to bed j about 6.30. He was standing up near the window. The following day (Sunday) deceased was in the house nearly all day, with his book, in the back bedrowm. Witness was reading his Bible nearly all the day.— (Laughter.) He did not remember whether it was a wet or a fine' day. On the Monday deceased was taken to the Oale- ' donian grounds by witness to be with hiig father. His father was nob at the grounds tilN about an hour and a-half afterwards, though he told witness to take him over. This was about 6.30 a.m., and deceased had no breakfast that morning, and witness did not leave any food with him. In the evening witness took him some bread and butter, and then took him home and got him a cup of tea. Witness did not know why this was done. His father told him to do it. On the Tuesday witness too.k de ceased to the grounds again, and every day that week. Witness went for him on Thursday and Saturday, and on Wednesday and Friday he was taken home by his father. He did not go for him till he had finished his work and had his tea. Every night when witness took him home he took him bread and butter, and gave him tea when they got home. Mrs Mitchell, the nurse, wan in the kitchen once or twice, and also in the back bedroom during that week. He was quite sure his brother slept with him every night. He never knew his brother's arm was hurt. He used always to dress and undress himself. His shirtsleevea only came down to his elbows, and though witness had often seen him with his coat off, ho did not bee anything wrong with his arm. Ha never saw a bruise on his forehead, nor did he know that he had a black eye. There was a mark above his eye caused by a boil. On the 3rd of March deceased was a* well as he (witness) ever «w him, Dtmwr th*

time referred to— between 20th January and the Saturday following — witness never knew

his father to beat his brother.

The next

Sunday Mr Ogg brought him home. That day witness had taken him in the morning and left him in a room in the grand stand. Witness played with him till 12 o'clock, and then vv^nfc home for his dinner. He came back with the deceased's dinner.

Mr Haggitt: Why did you not take him home for dinner ?

Witness (after some hesitation) : Because I thought it was as well to leave him there, and fetch him his dinner. No one told me to do so. I went back with the plate, leaving deceased in the stand, and played with the baby all the afternoon. When Mr Ogg took deceased home, his father took him into the back bedroom and gave him a beating with the strap, and then loft him there. At 5.30 the Court adjourned till 11 a.m. on Monday

Monday, 23bd Apbil.

This case was resumed, Mr Haggitt appearing to prosecute, Mr Denniston to defend the accused, Frederick and Margaret Wain. Job Wain, the brother of the deceased, continued his evidence. He stated he only recollected his father beating the deceased on one occasion— when Mr Ogg brought him home. Deceased was never shut up in the grand stand except between' the 20th January and the following Monday week. He was never there before that date to his knowledge. He did not remember his stepmother calling deceased a ditty brute while washing his trousers, nor did he see his stepmother beat him with a strap. She sometimes beat him with a strap. Witnflfes remembered the 3rd of March. His indkher went out, and deceased and witness ware alone in the house. Deceased was in the back bedroom all the time. Witness did not know why he stayed there, but he knew he was at his book. He did not remember whether it was fine or not. The door was not locked, as there was no lock on it. Witness did not see his brother at the window when he went into the yard that afternoon. Deceased fi ad a blue serge suit on, jacket and all. Witness Baw him several times through the window, and each time he was engaged with his book. The little switch with which deceased occasionally received a beating was kept in the kitchen for the purpose of beating the deceased. Sometimes he used to be beaten twice a week with it. Witness knew of his hands being tied behind his back, but not very often. His father used to tie them with a piece of rag before he went out. His hands were tied nearly every night while they lived in Broughton street. The deceased and witness used to take their tea together directly after their parents had had theirs. On Sundays he had all his meals with the deceased.

Mr Haggitt: Did Henry always get his meals, or was he ever deprived of them by way of punishment? Witness : He was never deprived of them to his knowledge. Henry never complained to witness of being hungry. Witness never knew him to be whipped for saying he was hungry or that he had not enough to eat. Mr Denniston : Anyone knowing how these answers have been extracted would be surprised. Mr Haggitt (to witness) : Did you never say on any other occasion that your father whipped him for saying that he had nothing to eat ?

Witness : I did not hear what you said exactly. He has been whipped for saying that he got nothing to eat. '/Mr Haggitt: I thought you told me jußt now that the only time your father ever whipped him was the day Mr Hogg brought him home. Now which ia right ?

Witnesß : Father whipped him ( two or three times with a strap for saying that he got nothing to eat. Mr Denniston complained of the manner in which the witness waß being treated. Although he was called by the Crown, questions were being put to him as though leave had been granted to treat him as a hostile witness. He (the learned counsel) had already pointed out that this was irregular, and could only have the effect of destroying the value of the evidence, but'the Bench had ruled againßt him, and therefore it was useless to object further. ' Mr Logan : It is a peculiar case. Mr Haggitt : Fortunately, we do not often have such witnesses to deal with.

Mr Denniston : I suppose that is your reason for violating the usual rules of evidence. >

Witness: Father has beaten deceased for running away about three times, and for saying that, he was hungry he was beaten three times. Mother has never beaten him for running away. Mr Haggitt : I want to know how it was you told us just now that your father had only given your brother one whipping, when you must have been well aware that he had given him a beating on six other occasions ? ' MrHDenniaton urged that this line of exa mination was exceedingly unfair. In another place, where they would meet on more equal terms, he would be able to object with better effect than he could now do. The only object of the present inquiry was to get at the truth as between the witness and the accused.

Mr Haggitt differed. In a preliminary • inquiry it was necessary that the Court should be satisfied with the demeanour and evidence 'of the witnesses. If a witness deliberately perverted the truth, or deliberately concealed the truth, the Court should see that this was not -permitted, otherwise there would be no me in holding a preliminary inquiry. He wished to let the Court see the position in which it wasbeing placed by, this witness. A witness who said that there had only been one beating, and directly afterwards recollected six other beatings, could not be treating the Court in a proper manner. fc- Mr Denniston : The Court will see to its "own dignity. I say it is no question between the' witheßß and the Court. Mr Haggitt is not here for the purpose of protecting the Court. The Court can very well protect itself. Mr Haggitt has been guilty of what one might mildly call bullying. If such conduct is continuod the child will be coerced into saying anything. Mr Haggitt : I ask is there any justification for the remark that I have been bullying this witness? I ask your Worships if I have not been as generous aB I possibly could be under the most extreme provocation. The Bench stated that there was not the , slightest ground for the remark. Mr^ Haggitt : The idea of my learned friend accusing me of bullying! He is more likely to do bo.

Mr Denniston : I have not had the chance of bullying yet. Mr Haggitt : I submit that that is the only reason why my learned friend has not done it. Mr Denniston : Just so. If you bully your own witnesses, what will you do to mine ? Mr Haggitt (to the witness) : I want to know, now that your memory is better, whether you are perfectly certain that your brother always got his meals? ,Mr Denniston : If that i 8i 8 not an attempt to c erce the boy into a different answer to what ' he baa given* Ido not know what is. It is

an attempt first to catch and then to coerce him. Witness : The deceased always got his meals regularly. He was never locked up in the grand Rtand except between January 20th and the following Monday week. Witness and his brother were on good .terms. He was very fond of his brother.

Cross-examined: The deceased was very sullen. John Coom, a fish-hawker, stated that he had seen the deceased on several occasions in a tent on the Caledonian grounds. Afterwards, on the 2nd January, he was standing in the tent in the same position as previously. He looked very dirty and ragged. Witness saw him in a room in the grand stand about three weeks or a month afterwards, between 6 and 7in the morning. He was standing opposite the window, and asked for a fish. Witness stopped his horse and hung a barracoUta on a spike on the top of the gate. Witness was in the habit of hanging fish there for the accused. When he got close to the gate he asked deceased what he was doing there, and he replied, " This is the third day I have been here." Witness then went back to his cart, and by the time he had taken the chain off the wheel he saw the boy on the doorstep with the fish in his hands. He put the fish to his mouth and took a bite out of the back of it. It was a raw fish, which had just been taken out of the boat. Witness called him a dirty little devil, and then drove away. To Mr Denniston : There was nothing to prevent him going anywhere he pleased. He could not reach the fish from the window. If he helped biinselt to the fish he must have gone through the door. I never mentioned this incident till last Tuesday, when I told it to a friend of the accused. Mr Denniston : What is his name ? Witness : I don't know his name, and I will not tell you what it is. Mr Denniston : Hold on now ; we'll have that down. I think you've gone a shade too far. — (Laughter.) Witness was questioned on this point for aome time, and stated that he did not know the man's name, but he knew that he worked at Anderson's mill. On Friday witness made a statement to the police. With these excep tions, he never spoke about the incident except to a few of the witnesses.

William Halligan stated that he used to frequent the Caledonian grounds about Christmas time. He recollected seeing the deceased on one occasion in the grand stand. He was standing in a corner shivering, and appeared to be in a moat deplorable condition. Witness noticed a lump on his right temple about the size of a pigeon's egg. Both of his eyes were discoloured, as if they had been blackened a short time previously, and his nose was three times as large as it should have been in a child of his age. Witness could not get the deceased to speak to him. On being cross-examined by Mr Denniston the witness would not state positively whether the body he identified at the Hospital was that of the boy seen by him at the Caledonian grounds. Elspeth Mitchell repeated the evidence given by her at the inquest. Mr Haggitt examined the witness about a conversation which she had with Mrs Wain about the deceased on the 2nd March.

Witness detailed what took place as far as ehe could remember.

Mr Haggitt : Do you remember her poking you in the side at all ?

Witness : When I was complaining about the bruises on the child's body Mrs Wain poked me in the side with her finger, and said, " Oh, he won't live long." I thought she was not pleased about my complaining so much about the boy — at least I put it down to that.

Mr Denniston asked the Bench to be particular about having both the question and answer taken down in the depositions, as the answer was virtually suggested to the witness by his learned friend. Mr Haggitt said he had no objection so long as the reply was given. The examination of this witness was concluded shortly after 6.30 p.m., and the case was then adjourned till Wednesday at 11 o'clock.

(Continued on page IS.)