AFFAIR AT MAKIKIHI

Timaru Herald, Volume CXXXVI, Issue 19095, 29 January 1932, Page 11

AFFAIR AT MAKIKIHI

INDICTABLE CHARGE DISMISSED. FATHERS AND SONS AT GRIPS. The attention of the Magistrate (Mr C. R| Orr-Walker) was occupied for. the greater part of yesterday’s sitting of the Court in Timaru, hearing charges arising put of. an affair at Makikihi on the afternoon of December 28. There were five charges, one of which was an indictable one, and this the Court decided to hear first, the Magistrate stating that he preferred to hold the other charges over until he had heard the more serious one. Gregory O’Boyle was then charged that at Makikihi, on December 28, 1931, he did assault Alfred Herbert Boulton so as to cause actital bodily harm. Senior-Sergeant Mathieson .conducted the prosecution, accused being represented by counsel. Alfred Herbert Boulton, dairy farmer, residing at Otaio, said that he was 52 years of age. On December 23, sometime after 5.15 p.m., he was in the Saltwater Creek Hotel. He was,ln. the bar parlour alone, when* he saw two men, Owen Kirk and George Hinks enter.

Counsel for accused at this stage objected to the evidence. The Senior-Sergeant said that he was leading evidence to show motive. The Magistrate said that the evidence might well be shortened. It would be sufficient to deal with the assault itself.

Witness then stated that he separated Kirk: and accused when they were going to fight in the Terminus Hotel. On December 28 he visited Makikihi with his son, Herbert Alfred, and after attending to some business, they drove up to the hotel in a gig. They reached the hotel about 4 o’clock, but did not see the O’Boyles there. He left the hotel, and met the O’Boyles between the butcher’s shop and the hotel. The O’Boyles stopped their car, but accused did not pass any remark concerning witness. All he said was something about the gentleman who had been on the Bench that day. Counsel: “It was not His Worship.” Witness proceeded to state that he went back to the hotel with O’Boyle, senr., and accused. They had two drinks each, after which O’Boyle, senr., went out. A man named Paterson entered about this time. After a shoit period, accused went outside. Witness heard a scrummage, and saw his pony Jump. He went outside and saw his pony galloping away in the gig. He commenced to walk after his pony, and was suddenly hit on the back of the head by the accused. Witness fell to the ground, and heard Francis 6’Boyle state “I’ll settle the Greg.” Witness got to his feet, and was knocked down a second time. Accused kicked on the right hip joint while he’waS on the ground, and made another kick at his ribs, but he kept it off with his elbow. He scrambled to his feet and went after his pony. He secured the poriK and got into the gig. Accused and his brother came up behind the gig in the car, and commenced to throw big stones. At 7 o’clock the same evening, the O’BoyJes visited his house, and accused asked him to accept an apology for the knocking about he had received. That night he felt his right leg getting bad, and the next morning he had great difficulty in getting about. Witness went o~ to say that he was obliged to go to bed during the day, and Dr Pitts was called in. He ordered witness to hospital on December 30, where he remained for two weeks and one day. At present he was unable to put any weight on his leg, although it had improved during the past week. He had also suffered bad pains in his head since he received the blow. Question of Drinks. Counsel far defendant: “Have you told us all that happened at the hotel?” The Magistrate: “All he was allowed to tell. We stopped him saying some things.” Counsel: “How many drinks did you have?” Witness: “Three altogether.” “What did you have?”—“Light shandies.” “Are you sure it wasn’t whisky?”— “Yes.” “When was the assault. Before or after Paterson came?”—“After.” “Then Paterson would see the assault?”—“No. I don't think he went outside. My boy has one leg only, and when I saw the pony jump, I called out to Paterson to help him.” “You were bragging about the pony, weren’t you,”—“No, I was not.” "After the first.drink, did you not ask the two O’Boyifes kfid Paterson to go out and look at the pony?”—“No, I did not.” “Then if they say you did, they are telling lies?”—"They are.” “After having the drinks, did you start to push the accused about in the bar?”—“No, I did not.” “Did you piit your hands on old Mr O’Boyle?”—“No, I did not.” “Did you not go put the door holding on to O’Boyle; ■ senior?”—“No. When I went out, O’Boyle was in ringing up the newspaper to try and get his name 1 kept out of the case that diiy.” “Were you not bragging about the men you had knocked down ?”*— 1 “No, I was not.” ' “Did Paterson pub his hands on you to restrain you?”—“No.” “You want the . Court to believe that the accused struck you without provocation?”—“Yes.” “When you were on the ground, he put in the boot?”—“Yes, well and truly.” “You were ill before you went to Makikihi?”—“No.” “Did not your wife ring up Timaru for a porous plaster?”—“Yes, but it was for a cold in my back.” Senior-Sergeant Mathieson: “Have you ever suffered from pyorrhea?” The Magistrate: “Does this affect the case?” The Senior-Sergeant: "The doctor will say that it is a result of his present condition.” Doctor’s Evidence. Dr A. G. Pitts, of Waimate, said that by his instructions, Boulton was taken to hospital on December 30. The man was very stiff in the legs and back, and was in pain. Boulton gave him a story, but said he could assign no cause for the trouble. He said he might have strained his back. Witness considered that Boulton was suffering from what the public termed lumbago. As a result of what he heard, he made a more thorough examination. This was a week after Boulton entered hospital. Witness then discovered a large bruise behind his right hip, and the surrounding muscles were very tender, and could not be put into action. There were no injuries to the head. Boulton said he hadn’t mentioned the matter before, because he did not wish to make trouble. He might have been able to find signs of injury to the head, after such a lapse of time, but it would not have been easy. The bruise was consistent with the man having been kicked. Counsel : 4 “Might the bruise not have been caused by any blunt object?” . ,

Witness * n fJ^jTes.” “You saw' h,Q. sign of a head injury?”—“No definite sign.” “Did he have pyorrhea?”—“Yes. He has had a septic mouth for some time, and I have advised him to have [his teeth out. Boulton’s condition has

been made much worse because of the injury to his hip, because there is a spot of lessened resistance, on which poisons can act.” “Would the pyorrhea cause the headaches?” The Magistrate. “You would have to take out his teeth, his appendix and other organs to determine the cause of the headache.” Witness: “I would say that would probably be the case.” Boy’s Story. Herbert Alfred Boulton, son of the first witness, gave evidence as to having driven to Makikihi with his father, who went into the hotel with the O’Boyles. Accused was the first to come out of the hotel. He pulled witness out of the gig, saying “You you told lies about the mail run.” The pony then bolted. Witness’s father came out, and was going after the pony, when accused hit him on the head with his clenched fist. The pair were on the ground, witness’s father being on top. O’Boyle, senr., then came up, and pulled the pair over. O’Boyle, senr. tried to kick his father, but witness closed with him.

To counsel for defendant: His father did not invite Paterson to inspect the pony; at least, they did not come out of the hotel to look at it. O’Boyle, senr. was the last one to leave the hotel. Accused attacked his father without any provocation. David Baden Powell Paterson, labourer, residing at Waimate, said that he was in the Makikihi hotel on the afternoon of December 28. He did not see accused leave the bar. He colild not say who left the bar first. He thought they all left together to in-, spect the pony. Accused asked Boulton if he could give him enough money to shout with, and he did so. While in the bar the second time, Boulton grabbed the accused by the arms, and was pushing him round the bar. O’Boyle (senior) came out of the office and tried to separate the pa, ir, stating “We have had enough trouble to-day without any more.” Senior-Sergeant Mathieson: “I would ask permission to treat this witness as hostile.”

Counsel: “He is trying to tell his story, but you won’t let him.” The Magistrate: “Let him go on*.” Witness said that Boulton and the O’Boyles went outside, and the next thing that happened was that there was a scuffle. He looked out and saw accused and Boulton half-shaping up, and the next thing they caught hold of each other, and fell to the ground. Boulton called out to his boy to kick accused. Senior-Sergeant Mathieson: “How could he do that, when he had only one leg.” Witness: “That was what I thought at the time.” Witness further stated that the pony got a fright, and he grabbed it, and tied it up. On looking round he saw the boy Boulton grappling with O’Boyle senr. and the boy was on top. The boy was having the better* of it, and he did not interfere. He did not see accused kick Boulton, but he might have done so. Again at this stage, the Senior-Ser-geant applied for permission to treat the witness as hostile. The Magistrate: “Does what you have said tally with what you told the police?” Witness: “As far as I can remember.” The Magistrate: “The police can cross-examine you, but I don’t think it will make much difference in the long run. It is evident you are trying to agree with one side.” Senior-Sergeant Mathieson: “Have you discussed this with Mr. Quinn?”— “No.” The Magistrate: “Remember you are on your oath.” Witness: “I saw him at the sale one day, and he told me I would be called as a witness.” “By whom?”—“I couldn’t say.” Counsel: “I think I might intervene at this stage. The witness can only be cross-examined regarding - irregularities in his story to-day, and that given to the police.” The Magistrate: “I think he might be asked if he has told the same story to-day as he did to the police.” The Senior-Sergeant read the statement by witness to the Waimate police, and the Court agreed that there were no great irregularities. No Case for Jury. At this stage, the Magistrate said that he did not think a jury would convict on the evidence which had been presented. In other words, he did not think a jury would convict accused of having caused the injury alleged. If that was the position, it appeared to him to be a waste of time and public money to put the accused on trial. Whether they would convict him of simple assault was another matter. It seemed to him that the charge might be made onp of fighting in a public street, and. counsel for defendant might consider this. Counsel for defendant said that he thought the police had been misled all through. They had taken Boulton’s statement to the exclusion of all other evidence. The Sehior-Sergeant protested against this statement. The statement ihdde by the O’Boyles to the police was then read, and in this the O’Boyles alleged that the Boultons were the aggressors. The Magistrate said that in view of the statement, and taking into consideration all the evidence he did not propose to commit accused for trial. Charges of Assault. After the luncheon adjournment, Gregory O’Boyle and Francis O’Boyle were each charged with assaulting Herbert Alfred Boulton and Alfred Herbert Boulton. The evidence of Boulton and his son was the same as in the previous case. Sarah Boulton, wife of Herbert Boulton, said that she heard O’Boyle, senr., ask her husband to accept an apology. Prior to her husband arriving home, the O’Boyles called, and asked witness to stop her husband ringing the police. She said she would, but she did not then know the nature of the affair. Constable Christenson said that the O’Boyles visited the St. Andrews police station, and asked him to go to Otaio to see Boulton, who was mad drunk. Francis O’Boyle emphasised this. The Defence. Counsel for defendants said that it might look, from the evidence, that the O'Boyles had been looking for Boulton, but this was not so. The defendants had been in town, having been involved in a Court case. On the way back, Francis O’Boyle stopped at Otaio to see if a truck of manure had arrived. At Makikihi, Boulton stopped him and in an offensive way asked if he was going to shout for him. It was while Francis O'Boyle Was at the telephone that Boulton commenced to push Gregory round the bar. Francis O’Boyle came out, and urged the pair to stop fighting. The proprietor ordered them out of the bar, and outside scuffling took place. There was no evidence to show that Francis O’Boyle had assaulted either of the Boultons.

Francis O’Boyle, residing at Kohika, said that on the date in question he had been at the Court in Timaru. He had been fined for using obscene language, and Gregory had been fined for two assaults, one at Saltwater Creek and one at St. Andrews. After leaving Timaru, they went to Otaio, where they made a stop to see if a truck of

manure had arrived. He had sire to see Boulton, and Mrs. Boulto.i did not tell him where her husband was. Witness then went “J 1 what took place at Makikihi. Boulton stopped him, and pointed to the pony, and witness said: “Yes, its a good one.” Boulton then said: Are you going to shout, you miserable b- ' - Witness took this as a joke, but they later went and had a drink. Boulton had two whiskies, witness had a pony shandy and Gregory had a long shandy. Witness went to the phone, and while there he heard someone say “I'm no d— fool.” Witness rushed out, and said, “For God’s sake dont fight." Boulton then said “You cant fight you Irish •” Witness replied: “No, and I'm not going to fight now. We have had enough to-day, and it there is any trouble, we will get the blame.” Boulton then said: “111 get you ab— month this time.” Quinn ordered them out of the hotel, and a scuffle then ensued. He was knocked down, and did not see what happened between Boulton and his son. Young Boulton took his coat off, and said he would fight either of us. Boulton said: “There you are. A crippled boy can fight you.” Witness replied: “You can fight to h—.” When he called in at Boulton’s house, he did not make any apology. He certainly said that he did not want the matter to go to court. The Saturday prior to the affair, he called at the house, and asked to see Boulton. He came to the door with his hands on his back, and he said to Boulton: “Are you crook?” and he said “Yes. Smith gave me some beer the other day, and it made me crook.” Senior-Sergeant Mathieson: * You say that; Boulton was pushing your son round the bar?” Witness: “Yes.” “What was he doing?”—“Nothing.” “Do you wish the Court to believe that?”—“Yes.”

“Your son did nothing to Kirk, too?” —“That has nothing to do with this.” “Your son hit Kirk from behind, and without provocation?”—“He did not hit him from’ behind.” “The Court believed that he did.” “Is it not a fact that you have borne a fighting reputation ’for years?”— “No.” “Did you not assault your nephew at St. Andrews once?”—“No, he assaulted me. He gave me a black eye, and I did nothing to him.” Corroborative evidence was given by Gregory O’Boyle, and Baden Powell Paterson repeated the evidence he gave in the earlier case. This concluded the case. The Magistrate said that there had been a great deal of contradictory evidence, and both sides had painted a picture to suit themselves. The whole thing was a donnybrook and a disgrace. He preferred to convict the defendants on a different charge which the evidence had disclosed, that of behaving in a disorderly manner in a public place. They would be convicted and fined £2 each, and costs £2/10/6, each defendant to pay half the costs. One charge of assault was withdrawn.