CHARGE OF ATTEMPTING TO MURDER.

Hawke's Bay Times, Volume 17, Issue 965, 11 March 1871, Page 2

CHARGE OF ATTEMPTING TO MURDER.

K. G. Hawes v. R. Marshall.

This case was heard yesterday in. the Resident Magistrate's Court, before R. Stuart, Esq, J. P. Mr Stedman appeared for the defence. A good deal of interest was taken in the proceedings, and during the inquiry the Court was crowded.

On the complainant entering the witness-box, he was interrogated by Mr Stedman as to his religious creed, and replied thai, he was a Wesleyan. Mr Stedman asked if he had ever represented himself as an atheist, to which he gave a distinct negative. He was then sworn, and deposed as follows : I am a farmer, residing at Papakura. On Tuesday la.-t I had returned home from Pakowhai and had my dinner. I then went to Meanee, and on my way back, when I had come to the first waterhole—a bad place in the road, I met three young ladies. From in for mation I went to Mr Parson's house, and found my wife and children there. My wife had never been there before. In consequence of what I heard [ went back to Meanee for a policeman. I saw Mr Cooper J P., and Mr Oliver, J.P., who advised me to go to town and get a warrant. I did not do so, but returned to Mr Parsons'. As I was with Mr Parsons, in his front paddock, a shot was fired from the road by Marshall. I saw him with a gun. Mr Parsons accompanied me home, and Marshall then returned to his house. I charged my rifle, and stood guard over my house. Mr Parsons stayed some time, after which he went home. He returned to rav house in the evening He stayed with me and my wife and children in my house. A shot was then fired from Marshall's place. [Witnesses were here, at Mr Stedman's request, ordered to leave the Court.] Another shot was afterwards fired, and I heard the sound of a rifle bullet. I was inside the house. The shots came from Marshall's. Mr Parsons then went home. As he was going home, another rifle shot was fired. I saw him stoop to avoid the shot. I heard Marshall yelling and hooting and threatening to kill us and burn the house; he was seven chains from me at the time I heard him. I know the distance by the measurement of my section. The

last shot cut the clothes-line. firing and shouting was continued ft hours. Sometimes he fired two sh 0 | in succession from a double-barrell e gun ; sometimes he fired from a rifle, could see him all the time. T kep watch all night from my own Once or twice he came half across m, paddock T then, saw that he had \ short bright carbine in his hand. From midnight to 5 a.m. there was a cessation in the firing. After 5 a.m. I saw Mar. shall come out of his kitchen witl la

gun. He saddled his hoise and rode out with a long fern-hook. He came to the front of my section. He returned to his house and rode past Mr Parsons' about a mile up the Pakowhai road, j fled with my family back to Parsons',' This was on Wednesday mormV When I got there I saw Marshall conversation with Mr Parsons. He had his fern-hook in hand. T came to Napier to get a warrant.

Cross-examined by Mr Stedman: I have been living fourteen or fifteen months at Papakura. My ground adjoins Marshall's. There is a sort of fence between, in very bad repair. It was in the same state when I went there. I never cleared my land by burning. When I went there it was covered with grass, thistles, trefoil, (fee. Marshall's cattle frequently trespass on my land, and mine on his. There have been mutual complaints. We have discursed the subject of fencing. He has impounded my cattle. I have once impounded one of his pigs. This mutual impounding took place twelve months since. On Saturday the 4th, some of my cattle were on Marshall's property. I saw them there. I did not see Marshall ihat day till 5 or 6 p m. I did not see a soul there. I dro\ e the cattle off about 6 a.m. T will swear I did not see Marshall that morning. In the evening I saw him. One part of his horse was in my gate, and one part out. He was on the top of the horse talking to my wife. (Laughter in Court, which was immediately checked by the police.) 1 said, " Marshall, this way of raising the wind won't do." I took a willow stake from the hedge. It was five feet long, one and a quarter inch thick, tapering to I- turned h'u cattle out of my ground with this stick. My wife held Marshall's bridle in one hand and a child in the other. She was evidently talking to him I said nothing to him—not a word. I did not say, " You ■, I've got you now; I'll do for you." Never uttered the word. I did not hear Marshall speak to my wife. The horse was rather restive. I did not hear him tell her to let go, or he should be killed. She did not hold his bridle more than a minute. When she lei him go he rode clear past me saying, " You , I'll do for you ; I'll massacre you " I was two-thirds of a chain from him. Marshall went towards Meanee or Pakowhai. I had not the stick in my hand all the time. 1 never said, " I'll impound you." I did not touch him with t.he stick. On Tuesday last it was between 3 or 4 p.m. when I met Mr Parsons. Mr Parsons' is half a mile from my house. There is a wire fence between Parsons' and the road. I was two, three, or four chains from the main road when the first shot was fired. Mr John Parsons and my wife and children were then about. I think they were in Parson's house. I. did not see Marshall before the "hot was fired. I saw him rise from a ditch as soon as, I heard the report. 1 never fired my lifle. Tt is still loaded and has not been fired for twelve months. "While Parsons was away I was crouching with my gun behind a willow-tree about twenty feet from the house. My wife and children were inside the house, and I was there to defend them. The second shot was fired while Mr Parsons was in the house. It was fired from some point very near—perhaps six or seven chains away. I was sitting in my house, and the door was shut. It was after the second shot that Parsons went away and I went and crouched behind the willow tree. Marshall said, " I'll burn you down; I'll kill you. You wretches; I'll kill every one of you.'' There w T as a continual repetition at this language. He was then in the middle of my paddock. It was as light as day. I could see his countenance and his breech-loader. On Monday, between 7 and 8 Marshall rode past rnv-

gate. I had a bucket, and was going to milk. I did not speak to him. I was three or four chains from him. I did not take a stick and ru*h at him. I did not utter a word, I don't know where he went. I have conversed with Marshall about the loss of my sheep, but never accused him of stealing them. John Parsons, sworn, deposed ; T am ,a farmer, residing at Papakura. On Tuesday morning lust, about 6 or 7 o'clock, Robert Marshall came to my house, with his three children, and stated that they were frightened of Mr Hawes, and did not dare. to stop in their house. Immediately after, Mrs Hawes and her children came, and stated that they were afraid of Marshall, and did not dare to stop in their house. Marshall had a doable-barrelled gun with him when he came; he soon went away, and Mrs Hawes remained still her husband arrived. After a conversation with his wife, Hawes went back towards Meanee. I then saw Mrs Hawes and children safe home. I went to Hawen' gate and saw the accused He had his double-barrelled gun in one hand, and a hedge-slasher in the other. I tried to persuade him, to go home. He fir-it *aid he was waging for Hawes. T told him he would get into trouble if he waited for his neighbor with a gun. He told me he had good reason for what he was doing; that Hawes had attempted his life. I persuaded him to send the gun home. He took the caps off. and gave the gun to his son, who took it to his house. I then went home. When Hawes returned, in consequence of what I told him, he asked me for my rifle. I refused to lend it to him He then asked for a tomahawk, which I also refused 1 said I would see him home, and we crossed the paddock together. He asked me to call again alter tea, as he believed there would be blood shed that night. I promised to Jo so. T went home and got tea. About 7 or 7.30 p.m. I heard two shots tired. I went to Hawes', and saw Marshall walking about with a gfun, between his own house and Hawes'. I do not know which padJock he wus in. I went into Hawes' house, A shot was tired while J was there. T then went home, and heard two shots after that. The last was about 10 p.m. In the middle of the day, Hawes being in conversation with me at the time, I saw Marshall in the middle of the road, and saw him fire a shot. He was at a considerable distance from us. I don't know what he fired .at. He had fired one shot previously, before Hawes came. Next ; morning Marshall and Hawes came to my house, Hawes had a gun; Marshall had the hedge-slasher. Hawes came for his pony. They both went away, but not together; Hawes went first Marshall said he came to see if he could not compromise the matter. I called Hawes back and told him what Marshall had said. Hawes said the thing had gone too far. They then went away. Cross examined by Mr Stedman : Marshall told me the children were afraid to be in the house for fear of Hawes. Mrs Hawes said she vva.s afraid ■to stay in her house for fear of Marshall. While they were at my place, Marshall and Mrs Hawes were talking; he told her she had no occasion to be frightened ; he was not going to shoot her. It was customary to shoot Maori dogs, which abound in the neighborhood. Marshall has been very much in the habit of shooting them. The first shots were fired from a fowling-piece. He was not firing in the direction of Hawes and I. He seemed to be firing in the air. We were out of range of shot, but not of a bullet. When Hawes came about Marshall, he used no bad language, he merely looked frightened. The J shot I heard in Hawes' house seemed to be fired about forty yards away; all the shots seemed to be fired irom the same piece. I heard no bullet whistle. I do not recollect Hawes saying that he heaid a bullet. —In answer to a question by Mr Stedman as to plaintiff's general character, the witness described him as rather violent when excited. % The Court here adjourned to 2 p.m. Whatu, a native, (whose evidence was interpreted hy Mr Hamlin) deposed : 1 saw this morning eight bullet marks in the weather-boards on ao. outhouse belonging to Mr Hawes. I heatd a shot fired on Tuesday last. I did not

see the first or second shot fired. I savv the third ; it was between Mr Hawes' haystack and the house. I saw the flash and smoke of the gun, Cross-examined by Mr Stedman.— I was asked by Mr Hawes to come here to-day. He said Mr Scully had said I should come. Mr Hawes told me to go aad look where the bullets were this morning. Wi Teati, a native boy, sworn, (through Mr Hamlin), deposed : —I went to Hawes' house on Tuesday last to sell pigs. I saw Mr Marshall on the road walking; he was on the road walking about. On my return he was opposite the gate. He had a gun in his hand. He (Marshall) told me to make haste home, and pointed the gun at me. The following evidence for the defence was then taken :

Margaret Hawes sworn, deposed : I am the wife of Kobert George Hawes. On Saturday morning last 1 saw the accused at about 1 p.m., riding past my house. Between 5 and 6 the same afternoon he was- driving some of our cattle out of our own place. I caught his bridle, and at the same time my husband came up, and told Marshall he would pay for the damage the cattle had done. He was then close to Marshall's horse's head. He picked up a good sized stick out of a hedge and drove the cattle back with it. He lifted the stick to strike the horse; I don't know whether he did strike it He did not strike Marshall. He was angry. He did not tell Marshall he would murder him. On Monday morning Marshall passed the house. I did not then hear my husband speak to him. Patrick McLees deposed: J am a laborer, residing at Napier. On Saturday evening last I saw the accused coming through the sand below the Meanee bridge. He appeared excited. I said, '-Marshall, what's the matter?" He said' he believed that man Hawes and his wife were going to kill him. He said he was taking their cows out of his potatoes, and that they had rescued them. His mouth was blreding. He said Hawes had a* ruck him in the mouth.

Joseph LeQuesne, deposed : I am a timber-merchant, residing in Napier. I know Ha we*, and have bad conversations with him about the fence of his land. I saw that some of the fence had been burnt down by the burning of thistles on Hawes' ground. John Oit, sworn, deposed : I am a farmer, residing at Papakura. On Wednesday last Marshall came to my house between 7 and 8 a.m Half-an-hour afterwards I overtook Hawes on the road to Meanee. He had a double barrelled gun, full cocked and capped. I cautioned him that it was dangerous. He said Marshall had been in delirium tremens, and had attempted' his life by firing several shots at him during the night. He said if it had been in America Marshall would have been something that I do not recollect, but which I took to mean a dead man ; but by the English law it would not have been justiliable homicide unless he had gone into his yard. Marshall rode past us, and we afterwards overtook him. Hawes rode on, and I had a conversation with Marshall, who told me that he was going to get a summons against II awe.-).

This concluding the evidence, the case was remanded till unis morning for decision.

This morning, in giving hi: decision, M r Stuart addressed the aceused. The offence with whicn he had been charged was one of a most serious nature, and the penalty which the law inflicted for its commission was penal servitude for life or for a long period of year*. After careful consideration of the evidence, however, he considered thai no primd facie case had been proved, and that nothing had been shown which would warrant him in referring the matter to a higher tribunal. The statute required that proof nnut be shown of a direct attempt to kill or injure, and no -such proof had been adduced. He could not pass over the language used by the ac cused without comment. His conduct, as well as that of the complainant, was deserving of the severest reprehension. They were both men of sufficient intelligence to be aware of the wickedness and danger of the course they were pursuing ; and he thought one was as bad aa the other. The case was one of no

ordinary character; in fact, in all his experience lie Had' never met a similar one.. After carefully considering the evidence he'considered that the ends of justice would be mer/by binding both parties over in their own recognizances for the sum of .£2O, and two sureties of <£lo each, to keep the peace towards each other for twelve months.

The required sureties were promptly found, and the parties left the Court.