SUPREME COURT. CRIMINAL SESSIONS.

Evening Star, Volume VII, Issue 1975, 3 September 1869, Page 2

SUPREME COURT. CRIMINAL SESSIONS.

This Day. (Before His Honor Mr Justice Ward.) His Honor took his seat on the bench at ten o’clock. SENTENCE. Edward Francis Cogan (30), who was convicted yesterday of embezzlement, was brought up for sentence. Mr Wilson, who appeared for the prisoner, called John Bell Mudie, who stated that he knew the prisoner in Victoria for six years. He was receiving clerk in the employment of the Hobson’s Bay Railway Company, and he held that situation during the thus witness knew him. Mr Wilson said that lie had documentary evidence in his pos-esaion, but he could not prove the signatures. The Judge said that he was afraid that he could not take cognisance of it. On being challenged in the usual manner, the prisoner said that th • verdict of the jury was no doubt a reflex of the legal aspect of the case, but he could assure hi* Honor, as the simple truth, that he never intended to embezzle one single sixpence belonging to Mr Strachan. The Judge observed that the prisoner could only advance legal objections now. The prisoner said that it had been put to the jury that he was a servant of Mr Strachan. which he denied. The Judge said that it had been held that if a person collected monies for another under a special authority he was a servant within the meaning of the Act. The prisoner alleged that he had rec ived harsh treatment at the hands of Mr Strachan; hut, notwithstanding, if he was spared, he would repay every penny that was due to him. He asked the Judge to take Irs case into his merciful consi ieration, on account of those who were utterly depen hint on him, and because he had been ten weeks in gaol. He was sentenced to three years’ imprisonment with hard labor. James Madigan (22), convict’d yesterdav of assault, with intent to do serious bodily harm, was also brought up for sentence. Mr James fnnith called the following witnesses to speak as to the prisoner’s character. James Wilson said that he had known the prisoner for about six years. He was of a very quiet and reserved character. Sergeant Mallard said he had known the prisoner for about six and a-half years. He was well behaved and bore a very good character. Dr. O’ Donoghuo gave similar evidence. The Judge said that he would pass the lightest sentence the law would allow him to pass, on account of the good character the prisoner had received from Sergeant M allard. The sentence was that the prisoner be sentenced to three months’ imprisonment with hard labor. ASSAULTING THE POLICE. Frederick Wain, Henry Francis, and Roderick Cameron, were indicted for having at Waikouaiti, on the 12th of June last asssaulted police constable Porter, while in the execution of bis duty. A second cum 1 , charged the prisoners with common assault Mr James SrnMi appeared for Wain and Francis ; and Mt Harris for Cameron. The following evidence was given : Christopher Joseph Naden : I am a sergeant of police, stationed at Waikouaiti. T remember the 12th of June last. On the evening of that day I was on duty in the main north road, in the township of Hawkesbury, 1 remember a '‘isturbauce taking place at the Commercial Hotel, about six o’clock that evening. It appeared to be a

fight between the prisoners Cameron and Francis. I sent for constable Porter. Just before his arrival I was standing underneath the verandah of the hotel, making arrangements to have a drunken man put to bed. Wain came up, and made some remarks to the effect that some m n would have been locked up for what the man I was alluding to was doing. He likewise made some remarks about the evidence I had given in a case in the magistrate’s court that morning. It was a case in which Wain was fined for allowing disorderly conduct and gambling in his licensed house. He came close to me, and endeavored to excite a quarrel When constable Porter arriv- d, he and I walked up and down the. road, in the neighborhood of the hotel, for some time—perhaps an hour. Wain passed us on the road several times. From information I received, I went to the camp and loaded my revolver, five of the chambers with ball, and one with blank cartridge. After doing that we again went on to the main road, and shortly aft. rwards proceeded down Beach street in the di ection of the Council Chamber, where a public meeting was about to be held. When we had got about half-way, Wain passed close to us. When we got to the Council Chamber we found that the meeting was over, and walked back again. When we got within about 200 yards of the Commercial Hotel, we heard some drunken men making a disturbance there. On going into the house, I saw a man named Dennis Daly, who was very drunk, “squaring” for a fight. I passed into the billiard-room, and there saw Donald Sutherland, one of the proprietors of the hotel, and requested him to quell the disturbance. He did not do so, and I arrest-d Daly, who w;-s the most disorderly of those present, in the bar of the hotel—the prisoner Francis b -big present at the time. Daly resided violently Constable Porter came to my assistance, but he was “ jost'ed.” I called upon Francis to stand off, and not interfere with me in doing my duty. As he still kept coming towards me, I threatened him with my life preserver, telling him that if he did not stand back I should hit him. Dalv caught hold of the life-preserver, and a struggle ensued. With Porter’s assistance I threw Daly on his back on the floor, and handcuffed him. Francis kept pushing us all the time. We dragged Daly as far as the verandah ; and at the door of the hotel, a scuffle, in which Francis took part, took place As we passed under the verandah, I saw the prisoners Waiu and Cameron run from the corner of the hotel, and hide in a urinal, which we had to pass on our way to the camp. When we cot opposite to the urinal, I cried out for a light, but my request was not attended to. I opened the door of tbe urinal, and told the prisoners Wain and Cameron that I knew them. They stepped outside, and were joined by Francis. He commenced dragging on Daly; and while doing so, tbe prisoners rushed towards us. I shouted to them to stand back, and threatened them with my life preserver. They still kept coming close to us, and Wain came up to me, standing almost over me. They appeared to stand still for a brief S;>ace of time. All at once I felt that a man was standing close to me ; and immediately I received a blow on the head which partially stunned me. The blow was given by Wain, He then rushed on to Porter and said to him either “You b dogT’ll murder you,” or “You b wretch I’ll murder you at the same time striking, him a violent blow on the head. I orter gave a fearful yell and I thought he was killed. I drew mv revolver and fired the blank chamber at Waiu. At this time the other two personages were round about me, and I considered mv life in danger Afte the pistol was filed they ran away, and I threatened if any one came near to me I would shoot him, I lifted Porter up, and with considerable difficulty got him and Daly to the camp. Upon locking Daly up, and sending for a doctor, I made enquiries for Wain. About half-an-hour afterwards I went to the Commercial Hotel, and there arrested Francis. He assaulted and resisted me. Between twelve and one o’clock that day I was accosted by Wain at the Commercial Motel; he said that I bad a down on him. I replied that I was only doing my duty as a policeman, and had no down upon him. He suddenly got into a rage, and said the p lice were dogs ; and they were always “dogging” him. I said to him, “Mr Wain, will you be good enough to walk awav.” He said that he would not, and, coming close to me, placed his face asainst mine in a most insulting manner. I then said, “Mr Wain, if you will not walk away I will,” and walked away. As I turned my back upon him he said, “ Sergeant Naden, you are a —— dog.” When I was talking to a friend outside the Commercial Hotel, shortly afterwar Is, Wain came up with a long metalled candlestick in his hand. He flourished it about in a menacing minner, crying out at the sime time, “ dogs ” ; “ —— crawlers.” 1 then w-nfc away. I don’t recollect seeing the prisoners in company at any time daring thd day. [Witness here produced a plan drawn by himself, and explains ’ the situations and distances of the different localities referred to by him in the course of his evi lence.] By Mr Smith : No unpleasantness excepting in the way of performing my _ duties occurred between Wain and me previous to the 12th June. I recollect a public meeting being held at Waihouaiti, to disapprove of the removal of the toll-gate, which I bad suggested. I accompanied Wain to the meeting. I don’t recollect hj s speaking in no measured terms of “the busybody,' then unknown to him, who had suggested the removal of the toll-gate. I don’t recollect his speaking about the matter on another occasion, when he knew I was tbe writer of the letter to the Government suggesting the removal of the gate. T don’t recollect his saying anything to the effect that “ he would not eat bis own words.” The only addition more to-day to my evidence in the Resident Magistrate’s Court, is in reference to the candlestick. I was prepared to state the fact then, but tbe question was not put to me. The depositions do not appear to state that I said that Wain passed me several times on the Main North Road, or that he “brushed” passed me, hut I am satisfied T gave the same evidence on that occasion as I gave now To the best of m _y belief, Francis actually “jostled” me. « was a general scuffle, and it would be aim? cult for me to state at what time he actually pushed me or Porter. There was a number of persons present when we arreste Daly. Francis was the only per-on who came near to me or “jostled” me when we arrested the prisoner. Of course it was a scuffle, and Daly being a very strong men, we had all our work to arrest him. swear that when I looked into the urinal, WainTwas not fastening his c othes after having used the urinal for the ordinary pur-

pose. It was a dark night, but the lamp of the hotel enabled me to sec into the urinal. The urinal was about 30 feet distant from the Commercial Hofei I did not see any persons except the prisoners about the place where the assault took place Porter, when struck, fell near the door of Mr Richards house ; I believe it was about eight or ten feet from it. I was abe to recognise Wain as being the person n ho struck Porter and me. I saw the other prisoners at the sanv* time 1 diJ not open the convf rsaticn w ; th Wain, when he said I had a down on him. Mr Pizey was, I think, present at the time. By Mr Harris : 1 fir-t saw Cameron at the Commercial Hotel, between the horns o f six and seven o’clock in the evening. Cameron did not make use of any threatening language towards Porter and myself, at any time during that day ; nor did I remember that he ever threatened to assault me I do not remember him touching or threatening to touch me ; nor did I see him with any weapon in his hand. When I looked into the room, Cameron said that he had meerly followed Wain into it. Cameron might have came up to me and asked me when Daly conldHte hailed out; but 1 did not hear him. I did not hear him encourage Wain or Francis to commit an assault. I did not ask him to assist me in taking Daly to the lock up. By the jury : I called for a light before I reached the urinal, because 1 wanted to look inside it, but when I opened the door 1 found that the light was sufficient to enable me to see inside. The lamp projects from the building, and is about sixteen feet from the ground. The billiard room which is between the urinal and the lamp, is about 10 feet high, so that the lamp is above it. Samuel Porter: I am police constable stationed at Hawkesbury. I remember the 12tb June last; on that day a case was heard before the Resident Magistrate’s Court in which the prisoner Wain wa u interested. I laid the information and gave evidence in the case. I saw him outside the Court immediately after the case was over. As the sergeant and I were walking away, he said “You wretches ; yen b s.” On the evening of the same day I was on duty on the main north road. At about half-post six o’clock in the evening I was sent for by Sergeant •Naden, and joined him at the Commercial Hotel. He patrolled the road for an hour or an hour and a half, and we w ere passed close by several times by the prisoner Y ah . [Witness here repeated the previous witness’s evidence so far as it related to all that took place up to the moment of the prisoners Wain and Francis quitting the urinal.] Win n Wain and Cameron came out of the urinal they were joined by Francis. The three prisoners then rushed at ns, and Sergeant Naden told them to stand off, at the same time drawing his life preserver. Thev stood still for a few moments, and making a rush, the sergeant threatened them with his life-preserver. A few minutes af erwards Wain struck Ihe sergeant a blow on the head, which knocked hj m down. Before striking me he said, “ You dog is it you.” The sergeant had to let the p-isoner Daly go. and I took hold of him. I said to Wain and Francis. “You had better g away.” 1 had hardly said the words when he struck me, saying, “You dog. I’ll murder you.” I fell, but heard a pistol go off. I recollect nothing more until I found myself in the camp. I was struck with a bludgeon, which Wain held in his two hands while striking me, I wore my uniform cap at the time ; it was in good order [hat produced], I was attended by Dr Harding, and 1 was under his charge for 14 or 15 days. I was not able to resume my duti'-s for three weeks. The blow 1 received affected my head very much, and fo fourteen days I was unable to leave my lied. By Mr Smith : I was near to Wain when he spoke to the sergeant and me o-tside the Court. I swear that Francis was pushing me down on Daly. Tbe> e were three or four persons in the bar, but they did not interfere, nor did they crowd round. There was no one present, except the prisoners, where the assault was made. The hotel lamp enabled me to see if anyone el-e was present. By Mr Harri- : Cameron never used any threatening language towards the sergeant and myself. I think he said to the sergeant “ What’s that you say ; you had better not Bay it again.” 1 believe be referred to the sergeant having told him to go away. He said “Let the prisoner go.” I did not. make that statement in the Magistrate’s Court. By the Crown Prosecutor: If Mr Eichmond was at his door when the assault took place I should have seen him. : Kobert Price, saddler, Waikouaiti. stated that he was at the Commercial hotel, on the evening of the 12th June, and saw the police taking Daly out of the hotel They had to pass tbe urinal to take him to the lock-up. When opposite the urinal, he heard the sergeant call out for a light, and looking in the directi n in which he was he saw two men standing outside the urinal ; he believed the men to be the prisoners Wain and Cameron. He heard a shout and the pistol fired, but could not see anyone. A few minutes afterwards the prisoner came hy from the direction of the Golden Fleece Hotel. By Mr Smith : The Golden Fleece is in the opposite direction to where the police were. Henry F. Pizey, bank manager, Waikouaiti, deposed that on the afternoon of June 12 he heard the prisoner Wain say to Sergeant Naden that he (the sergeant) had a “down” upon him. He also heard the sergeant tell Wain if ho did not go away, he (the sergeant) would have to do so. The sergeant then walked away. As I went into the hotel, I saw that ain had a candlestick in his hand, but when it was I could not say. By Mr Smith : Wain appeared excited. By the Crown Prosecutor : I spoke to Wain about the police, and 1 advised him to let the matter drop, as he had been fined. Jas. Duff, landlord of the Commercial Hotel, gave his evidence in such a way as to call forth from his Honor the remark that he had seldom beard a witness give evidenc- in such a shuffling way. His evidence was not, however, of much importance. Robert Hard l ng, M. D. : I reco I lect being called in about ten o’clock on the 29th June, to attend constable Porter. He was suffering from a wound on the scalp. The wound was on the right side of ihe head, and was about two inches long. I dressed it. The wound must have been inflicted with a blunt instrument, such as as a thick stick. The wound was much swollen, and there was slight discharge from it the next day when I examined it. He suffered from the effects of the wound for about three week*. A hat such as that sVwn me would offer considerable resistance to a heavy blow [Porter’s hat produced.] The bat bears a mark which might have been

caused by a heavy stick. If Constable Porter’s bead had not been protected iy hat, the blow might have proved very serious. . , . . t The case for the prosecution having closed the following evidence for the defence was \l6. Hiclimond, butcher, Waikouaiti I remember the night of the 12th June. I was sitting at my fireside with a man named Davidson, when I heard a noise and florae one talking outside, apparently near the Commercial Hotel. We went to the doorstep leading to the street. We were m that position some time before the shot was fired, about ten minutes. After I had stood there a little time, I heard Daly calling out for Duff, and then I hj ard the sergeant advising Daly to go qnie'ly. There was a momentary silence, then I heard a ru hj a M crash; Porter gave a yell and f. 11 at the doorstep, I looked out to see what was the matter, and immediately a shot was fir- cl. 1 saw no one before Porter fell. It was not possible to see a man’s features distinctly at a distance of two yards. Davidson was standing at my elbow all the time. I beard nothing more than I have stated already. lam acquainted with Wain’s voice. If he had spoken loudly at a distance of a few yards, I should certainly have heard anything he might have said. The lamp at the hotel will not show a light as far as my shop. By tho Crown Prosecutor : During the ten minutes I stood at my door, I did not look outside. When I heard Porter fall I stepped outside ; but when the pistol was fired, I at once put in my head, and the door, which before that was open, was shut by Davidson. By Mr Harris : If Naden had called out to Cameron or Wain before he fired the pistol, I should have heard him. By the Judge : I «as nearer to the outside of the door than Davidson. James Davidson gave evidence which, in the main, was merely corroborative of that of the previous witness In answer to the Crown Prosecutor, he said that the pistol was fired shortly after he and Eichmond left the room to go to see what was the matter. [Left sitting.]