DISTRICT COURT, WESTPORT.

Westport Times, Volume IV, Issue 699, 18 August 1870, Page 2

DISTRICT COURT, WESTPORT.

Tuesday, August 16. (Before Mr Justice Ward ) BEGINA V. TOTTENHAM. Joseph Tottenham was charged with larceny. The Crown Prosecutor briefly informed the jury of the circumstances in connection with the offence with which the prisoner stood charged. It was that he had stolen a quantity of drapery, the property of Messrs Fleming and Murray, on the occasion of the fire on December 4, 1869. He should prove the finding of the articles in the possession of the prisoner, and should also identify the articles. W. A. Kiel)'-, sergeant of police, stated that he recollected a fire in Gladstone street, Weslport, in December last, and knew the prisoner at the bar. Ho then resided in Molesworth street. Witness visited his house by virtue of a search warrant on December 9th and searched. He found in the bed-room, between the boards and the wall-lining, a shirt, also a silk jacket. AVitness then left a constable in the house, and showed the shirt to Mr Graves. Witness also showed him the jacket afterwards. Ho then crossed the Buller river and found the prisoner splitting wood. A.rrested him on the charge of stealing from Fleming and Murray, and cautioned him. Prisoner stated he purchased the socks at an auction sale hold by Brown, Jones, and Eobinson. By Prisoner: Robert Dutton was with you when I arrested you. Tou told me you had purchased the shirt a month previously at Fleming and Murray's. William Williams corroborated the evidence of the previous witness. Witness found the two woollen jackets produced in prisoner's bed-room, also a doll, a pair of stays, 17£ pairs socks, a clothes brush, and a hat and two feathers.

By Prisoner : I was at your place a few days previous to December 9. A man named Duttou was then at your place. John Stewart Fleming, draper, recollected the fire on December 4,1869. Witness had to remove his goods into the Court House from the street, and on sorting them he missed a number of articles. Witness applied for a search warrant against Tottenham. He identified all the articles produced except the socks.

By Prisoner : "We had shirts of the same pattern at the time of the fire. I could not swear to the shirt produced, as there is no mark on it. I identify the jackets by their make and trimming, and the stays, feather, hat, aud doll by our private mark. By a Juror: The shirt may have boon sold, but none of the other articles identified. Isaac Graves corroborated the evidence of the previous witness, but could not identify the shirt, socks, or jackets. He recognised the stays, feathers, and doll. By Prisoner: He should not, as a general thing, remember selling any particular lot of goods a month previous to tho fire. By a Juror: TVe do not usually take off the private mark when goods are sold. This closed the case for the prosecution. The prisoner stated that his most mnterial witness was absent in Wangauui. He called

Samuel Thorpe, who stated that ho knew the prisoner, |ut had only become acquainted with him subsequent to December 9.

His Honor declined to allow the witness to give evidence as to the accused's present state of health. The prisoner addressed the jury, stating that he had lent assistance at the fire. He directed tho attention of the jury to the fact that the goods were cast promiscuously out of the burning premises ; he picked up some things, and was rushing away for water, lie did not know whoso or what the tilings were, and threw them against the fence of Lis premises. A woman asked him to let a child have the doll to play with, and he, thinking it was of little account, consented. A few days before the 9th Constable Williams searched his house and found nothing. He was unwell after the fire and intended not to go to work, but was fetched by Dutton, and went across the river. When arrested by Kiely, charged with stealing a shirt, he said at once he purchased it at Fleming and Murray's. His Honor summed up shortly, stating.it would be for the jury to decide whether the goods had been placed in prisoner's house with an intent to convert them to his own use.

The jury retired, and shortly returned into Court Avith a verdict of guilty, and recommended the prisoner to mercy on the ground that he had been a long time awaiting trial. His Honor stated that he would consider the recommendation, although he differed from the jury. The effect of his sentencing the prisoner to a lengthened term would be simply to continue the prisoner in hospital under charge of a constable. The prisoner would be imprisoned in the Westport gaol for six months. EEGIKA V. MAItTA JENNINGS. The prisoner was charged with having assaulted Elizabeth Fry, with intent to do her grievous bodily harmGeorge Thompson was absent when the jury was being called, andhis Honor inflicted a fine of 40s upon tho absentee unless cause were shown.

Elizabeth Fry, sworn, stated that she was a washerwoman, and resided in Queen-street. She knew the prisoner, and saw her in July last. She was stopping with the witness. Witness was minding the accused's child on Monday night. The accused returned to the house about three o'clock on Tuesday morning. She was very drunk, and continued drinking all the morning, and was very quarrelsome. Witness went to lie down with the baby to get it to sleep. Prisoner followed witness into the room and struck her on t'ue head with a butter basin. The blow cut her seriously, and prisoner threatened to knock her brains out. Prisoner picked up the broken glass and further struck her on the head and dragged witness to the door to get her out of the house. Prisoner picked up an axe and threatened to dash witness' brains out if she did not leave the house. A man rushed in and took the axe from her. She dragged witness by the hair, pulling a good deal out of her head. By the prisoner : I was sober that day. I did not send out for brandy. I did not go to Simon's twice with a half-gallon measure for myself; I went for another woman for a pint of beer. There were not two men in the house when tho row commenced. The hair produced was not pulled out of my head by a woman when I was doing three months in gaol. I did not go before Dr Giles on tho charge. You were mad drunk. I was obliged to hold you to protect myself. I don't know whether M'Garrell came in or not.

Henry Hunter, Constable of Police, deposed to knowing the prisoner at the bar. He went to the house of the previous witness, and found blood running under the door. The prisoner, Mrs Fry, and a child were the only occupants. Witness saw the axe produced, also the brkeen fragments [of glass blood-stained, and a quantity of hair lying on the floor. The prisoner was not sober. Witness arrested her.

By the prisoner: Tour face was cut, and there was a good share of hair knocking about. Mrs Pry was standing up and seemed inclined to continue the fight. You had lost hair as also Mrs Pry. M'Garrell said when he came in that Mrs Fry had not had fair play, or she would lick any woman in Westport. On these words being used Mrs Pry took up the aso, and said something about the prisoner haviirg threatened to knock her down with it. By his Honor : Fry was not sober. James Arthur Maguire, gaoler, corroborated the testimony of the previous witness. The prisoner, with her baby, was sitting on the sofa when he went in. Fry was standing at the bed-room door. M'Crarrell came in and asked what was the matter in an indifferent manner. Both women replied, imputing blamo to each other. M'Garrell encouraged Pry to continue the fight, and she thereupon threatened the prisoner, placing herself in a fighting attitude. M'Garrell ordered her out, but she would not go, saying she was not iu a lit state, and also that she had paid M'Garrell £2 for her board on the samo morning. By the prisoner: I have kuown Mrs Fry for several years. She has been in gaol often, and I have often heard her make slatomeuts when charged, but I never knew her to give evidence before to-day. She is now undergoing her ninth sentence. As iu my charge I have had opportunity of judging as

to her credibility. I may say sho is given to stating that which is false. Samuel Thorpe gave ovidenco as to the condition of Pry shortly after the wounds wero inflicted. He found four contused wounds. They were likely to be inflicted by the glass produced. One might have been inflicted with something sharper. I don't know how long Mrs Fry was confined to her bed. I visited her twice, and sho was then in bed. I think her present condition is partially due to intemperance.

This closed the case for the pro secution.

The prisoner called two witnesses, Joseph Borty and Cfflsare JSTosei, who appeared to give their evidence very reluctantly. The latter witness stated that Mrs Fry went for beer on the morning of July 19.

The prisoner stated that Mrs Fry had herself commenced the assault, and that she had only acted in her own dofeuce.

His Honor summed up, stating that there was no doubt, from the medical evidence that the woman, Fry, had been seriously assaulted. It would be for the Jury to consider whether the prisoner had been the first to commence the assault; and, if unable to arrive at any conclusion on that point, whether, in repulsing Fry's assault, she had or had not resorted to undue violence. The Jury, after a short absence, returned a verdict of " Not G-uilty," and the prisoner was discharged. EEGINA V. EICE. John Rice was charged with unlawfully assaulting and maliciously wounding John Henderson at Charleston, on the 12th instant. Mr Pitt defended tho prisoner, who pleaded not guilty. The Crown Prosecutor stated that the case was one which would not long occupy the Court. On the night of the 12th instant Henderson vwis playing billiards in tho Exchange Ho! el with another man. The prisoner came in under the influence of drink, and persisted in interfering with the players. Ultimately Henderson ejected the prisoner, and, while in the act of so doing, was stabbed in the back by the prisoner. He might remind tho jury that drunkenness could not be pleaded as any mitigation of the offence—it was deemed rather an aggravation. He was glad to find that the prisoner had the benefit of being defended by council, as it enenabled him to exercise every effort in pressing home the charge against the prisoner. He should proceed at once to call evidence, the first witness beina' John Henderson, sworn, stated I am a blacksmith, and reside at Charleston. 1 know the prisoner. I met him at the Exchange billiardroom on Tuesday, the 12th inst., about 10 p.m. I was playing a game at billiards. Prisoner wanted to bet money, and interfered with the game. Witness commenced a second game, and prisoner interfered, saying he wanted money from him. Prisoner then left off physical interference and commenced using abusive language. Shortly after he came in front of me and would not let me play. I had to shove him away in order to make a stroke. I shoved him rather roughly at last, and pushed him out of the door". Prisoner then stabbed me in the side. He was cutting a pipe of tobacco I believe at the time. I felt sore and discovered I was bleeding. The prisoner then went out. I went to the chemist and he advised me to go to the doctor. I went to tho camp and reported the matter. I had cloth trousers on, a shirt, waistcoat, and coat. The knife went through the coat, trousers, and shirt.

By Mr Pitt: I was told by those present if I took no further notice of the matter I should be as bad as the prisoner. I thought I had only received a scratch. I believe I said at the KM. Court that the cut might have been accidental.

By his Honor: I did not see the prisoner strike the blow, as it was done very quickly. I felt the blow, but did not know "but that it had been inflicted with the fist.

James Parsons, publican, residing at Charleston, corroborated the previous evidence. I asked the prisoner to desist from interrupting, and he sat down. Two or three minutes after I saw Henderson and prisoner struggling. Witness caught the prisoner by the arm. No one was near them. Prisoner went away. I saw Henderson was wounded. Henderson was perfectly sober, but, I think, the prisoner was a little the worse for drink.

By Mr Pitt: I know prisoner was filling his pipo ten miuutes before, but did not notice whether he was doing so then. Joseph Henry, medical officer, deposed tha,t ho examined John Henderson, on Friday night last, and found a punctured wound half an inch wide, and an inch and a quarter deep. The wound had a lateral direction towards the centre of the back. The knife producd would inflict such a wound if used with force as it is not sharp. Eobert Lambert, sergeant of police at Charleston, stated that ho saw Henderson on Friday evening, and in consequence of that' ho arrested the prisoner. Henderson was bleeding from a wound in the side of the back. Tho prisoner was searched and the lenifo produced was found. By Mr Pitt: I arrested him on tho road to Candlelight, the direction in which he lived, half-an-hour after information was given. I have known the prisoner about seven years. Up

till lately I considered hiia a respectablo man. lie has been recently arrested live or six times for drunkenness. He was slightly under the influence of drink when I arrested him. No evidence was called for the prisoner.

Mr Pitt contended that the jury from the evidence produced, must arrive at the conclusion that the wound had been inflicted unintentionally, and without malice.* He would not attempt to deny that the wound had been inflicted by llico, although the entire evidence and action of the defendant went to show, beyond a shadow of doubt, that he was in utter ignorance of the fact that Henderson had been wounded. There was first of all, the finding of the knife on his person by the police when arrested, about half an hour after the occurrence, although ample opportunity had been afforded to get rid of the instrument ; and, if guilty, there could bo no doubt that he would have got rid of such evidence of his criminal intentions. There was the further fact that he neither hurried away immediately from the scene of the occurrence, nor yet attempted to conceal himself, but was found in half an hour by the police, on his way to Candlelight in the direction of his hut. There was the statement of Henderson, who certainly gave his evidence very fairl3 r , that he "believed the defendant was cutting tobacco when the scrimmage occurred, and there was his very reasonable admission that the wound might have been the result of accident. That Henderson held this view shortly after the occurrence had been most incontestably shown ; since it was by the interposition of others alone that ho was induced to take any action in the matter whatever. Was it possible that for no other provocation than a dispute about a bet, that the defendant should deliberately stab a man with whom he had had but a trifling altercation? Hedid not think the jury could arrive at such a conclusion, and they certainly could not from the evidence. Had it been shown that the defendant had made a deliberate blow the case would be very diffierent, but no one saw any blow, and the entire evidence as also the conduct of the defendant proved that he not alone made no blow at Henderson, but that he left the house and went home entirely unconscious that Henderson had suffered any injury whatever. The question put by his Honor to Henderson as to whether he saw Rice strike him, was most important a3 showing at once whether the act was the result of intention or inadvertence. He might state that the jury could only find a verdict for the Crown if they believed that the wound had been inflicted by ■fcbo doiVncUvn* iutciltioUittly 1111(1 It Cletli to them, in the absence of all evidence supporting such a conclusion, that a deliberate blow had been struck.

The Crown Prosecutor rose to reply, when it was contended by Mr Pitt that the right of reply did not rest with the Crown. Some argument ensued, counsel for the prisoner citing authority showing that the right of reply was limited to the AttorneyGeneral of England alone. His Honor ruled that the Crown Prosecutor had the right to reply if he chose to exercise the right. The Crown Prosecutor stated that ho purposed to reply very briefly. He must remind the jury that malice was inferred when any act, whereby injury was entailed, was the deliberate act of the accused. The Counsel for the defence had endeavored to show that the wound had been inflicted inadvertently, and, as utterly such a view of the matter, he would briefly allude to the evidence of John Henderson and Joseph Henry. The former stated that he saw no blow struck, but that he felt a blow. The evidence of Henry showed that a blow must have been dealt with considerable force, the kuife being in blunt condition, to have penetrated a coat, trousers, and shirt, and inflicted a wound an inch and a quarter deep. It was shown that the wound could not have been caused by inadvertence, and from the position alone of the wound such a view was untenable. He considered the evidence pointed most conclusively to[the guilt of the prisoner, and he trusted that the jurv would find a verdict which might be the means of putting a stop to outrages of such a character, otherwise there would be security for none. His Honor summed up briefly. He stated that the case was one of very little difficulty, as it was admitted that the wound had been inflicted by the prisoner. Whether inadvertently or otherwise, it would be for them to determine. With respect to the malicious intent, the law always inferred malice from any act deliberately performed which would be attended with injurious consequences. If they were of opinion that the wound had resulted from a blow, and was not a misadventure or accident, they must find a verdict for the Crown. If, on the other hand, they believed that it was the result of accident or had any reasonable doubt upon the matter, it would be their duty to give the prisoner the benefit of such doubt. The jury retired, and after an absence of an hour, desired to be informed by his Houor whether, in the event of their finding that the wound was the result of a blow, the malicious intent to inflict bodily harm would be inferred. His Houor replied that lie had already stated that the law inferred malice when an act resulting in injury was wilful. The jury, after a short consultation,

found the prisoner guilty, but recommended him to mercy on the grounds of provocation and excitement consequent upoa the scuffling. The prisoner, in reply to the question whether he had anything to state why the sentence of the Court should not be passed upon him, stated that he was in entire ignorance that any injury had been inflicted upon Henderson. The wound was purely accidental, and owing to the narrow passage where the scuffle took place. His Honor, in passing sentence, stated that it was scarcely possible for the jury to have arrived at any other verdict. He did not concur with their recommendation, but it would nevertheless influence him in inflicting the punishment which the prisoner so deservedly merited. The act, of which he had been found guilty, was of a most dastardly and cowardly character, and one which must be met with the sternest justice. But for the recommendation of the jury, and the fortunate circumstanco that the wound inflicted was not of a more serious nature, he should have visited the offence with a far heavier penalty. The prisoner would be sentenced to twelve'montha' imprisonment with hard labor. REGINA T. PICKUP. Mr Button made application for the discharge of this prisoner, charged with larceny, contending that he was illegally in custody. He had been commitf-ed by the Eesident Magistrate at Cobden for trial at the District Court. That Court had no jurisdiction to try the prisoner, and consequently he must be discharged. His Honor stated that the same morning, when the application was made, he had released his recognisances, the prisoner having stirrendered, but he certainly was not prepared to discharge the prisoner who was at present in custody. The prisoner was charged with felony, and on such charge could be arrested and imprisoned without a warrant. The proper course would now be to have the prisoner examined anew, when the magistrate might commit him for trial at the Supreme Court. The Court then adjourned till 10 a.m. on Wednesday. WEDNESDAY, AUGUST 17, 1870. Appellate Jurisdiction. deennan and party t. scanlon and PARTY. Mr Button, for the defendants, moved to dissolve the injunction issued by the District Court. The injunction had been granted for the purpose of staying the defendants from interfering with a gold-mining claim pending an action about to be commenced in hid oupitiiuu Oumii. contended that the District Court could only grant an injunction when a suit had been already commenced. His Honor coincided, overruling the argument advanced by Mr Pitt, who appeared for the plaintiffs. He said that on the face of the injunction no suit had been commenced ergo there were no grounds for an injunction. The injunction must be ssolved with costs. Appeals. sonstrom and party t. Murdoch and party. Mr Button appeared for the appellants, and Mr Pitt for the respondents. The service of notice of appeal was admitted, and it was mutually agreed that the notes taken by the Warden in the Court below, and the plans of ground then produced should be put in as evidence.

The respondents, it appeared are in possession of ten men's ground, as a mining claim, consisting of a rectangular block of eight men's ground, and a narrow strip adjoining of two men's ground, through which they were driving a tunnel. The appellants had taken up a portion of the larger block, contending that the regulations did not admit of ground being taken up in such a manner, and that it was incompetent for men to hold ground 115 feet distant from the main body of their area. After hearing arguments on both sides, his Honor stated that the only question for him to decide was whether the fact of the men working in the smaller block, and having ten men to represent the ground, should be held to be occupation of the entire area. According to the plans it appeared that the two blocks adjoined. He should rule that the occupation of the respondents was good, and the decision of the Warden would be confirmed with costs. OVERirAGEW AOT) PARTY V. HUGHES. The appellants sought to have reversed the decision of the Warden's Court, by which their prior right to four heads of water from the Waimangaroa Creek had been upheld, but their certificate for an abandoned head-race to convey water had been cancelled. The "Warden's notes, and judgment, also respondent's miner's right were put in as evidence. Mr Button appeared for the appellants, and Mr Pitt for the respondents. Mr Button contended that the respondent had no locus standi, and quoted Section 112 of the Goldfield's Act. Ho maintained that the respondent, by virtue of a miner's right, dated May 21, was not in a position to oppose the right that had been granted to the appellants on May 23. Hie Honor overruled the objection on the ground that there might be certain cases in which such right

uld accrue to any person becoming ) holder of a miner's right, j He ist confess that neither the original int, nor the notes of the evideuce tea by the Warden, nor the judgsnt of the lower Court gave him the Atest clue as to the circumstances 'the case. He certainly was of inionthat the plaint should have connod the particulars of the aired misrepresentation. Mr Button urged that the decision the lower Court had substantially lored any misrepresentation, as the ior right of the appellants was ,held.

fllr Pitt stated that the misreprentation on the part of the appellants d consisted partly in a suppression certain circumstances in connection ith the water-race. The Warden's ites of the evidence showed that ferhagen had not informed the Warirj that the bailiff, by virtue of a arrant, was in possession of the race oin May 21 to 28, although he was Tare that the bailiff had been there id had posted a notice. His Honor stated that Mr Pitt was Dubtless correct, but it was impossible )T any one to arrive at that conclusion ad no other from the evidence before he Court. A re-hearing would be ranted with costs. The Court then adjourned till 10 ,in. on Thursday.