RESIDENT MAGISTRATE'S COURT Wednesday, July 2, 1851.

New Zealander, Volume 7, Issue 545, 5 July 1851, Page 2

RESIDENT MAGISTRATE'S COURT Wednesday, July 2, 1851.

Before Thomus Beckhnm, Esq., Resident Magistrate, and L. McLachlan, Esq., J.P. Elizabeth Ann Davifs, one of the female immigiams per the barque Stately, charged the conamandtr, Captain Gmder, with having committed an assault on her by striking her with his clenched hs>t, on the ltith. April last, dumig the voyage from London. This was the second time the case was bi ought on lor trial — it having been dismissed before in consequence of an error of date in the information. Mr. Abraham (who has taken much pains on behalf of these girls since their arrival) appeared for the plaintiff, and Mr. Whitaker for the defendant. Elizabeth Ann Davies, was sworn and stated that she was a free passenger by the Stately from England to Auckland. — her passage having been paid by friends at home; on tbp afternoon of (he 16th April last she was sitting on deck with her work, when one of the male passengers requested her to ask the matron to let him have one of the empty jars; the mate saw her speaking to the passenger and ordered her below ; she , refused to go as she was on that part of the deck allowed to the gula; the mate went into the cabin and, brought the Captain who ordered her below ; she obeyed, went down and stayed till evening ; while below she heard one of the girls say that the Captain was beating the apprentice Lawrence on the poop, and she went up stairs with several other girls ; was looking over the hatchway when the Captain came down oft the poop, said " down below girls," and struck her a violent blow on the back with bis clenched fiat ; she turned round and told him not to strike her ngain, when be oidered the mate to put her below ; thinking she was in danger, she dared the mate to touch her ; it was not an instant between the Captain coming down the ladder and his striking her ; it was a bard blow and she felt it. Cross-examined by Mr. Whitaker: She did not know that ever she said she was sick or aorry about this matter ; this complaint was made in relation to the matter that she had brought for trial a fevr days ago. Mr. Whitaker then called on the bench to dismiss the case at once; — it was the same that had been dismissed already, and it was a generally admitted principle that no mm could be twice trued Jbr the same offence. Mr. Abraham contended f,hat the case had been dis missed on such ground* as did not prevent a new trial being called for. The Bench decided tbat as the case bad been dismissed on a former occasion only on account of an error of date in tbo information, and not on the merits, there could be no reason why they should refuse now, on a fresh information being laid, to go into the full merits of the case. Mr. Wiiitakeb proceeded witb the examination : It was her own wish to bare this case brought for trial ; she knew a Mr. White, but he had nothing to do in urging her to bring this case into Court ; she refused to state who supplied her with the money to bring it into Court, but she would positively state that Mr. White had not requested, nor urged, nor advised her to commence this proceeding; there were two Mr. Whites, passengers by the Stately ; she had correspondence with them bofb,dhe lired under ttbe protection of the married Mr. White, and his wife,— and not that of tbe single Mr. White, as was reported, which report she said was false ; she bad not had aay letters from Mr. White on this matter — any that she received did not relate to it; she bad spoken to Mr. White on the matter when he visited her an the gnol, and requested him to procure a Sheriffs order to enable her to come round to that Court to take out a summons ; she might have expressed a wish that the ship wpre gone — she had wished the vessel to be in so many places that she could not remember any one place in panicular. By Mr. Abiiaham : If any money had been supplied her, she would have to work to repay it ; it was on referring to her being sent to prison on the information of the mate (who charged her with baring struck him) that she had wished the ship was anywhere but here. Satiaii Ann Whitmore stated that she was also a free immigrant by the Stately, and recollected the 16th April ; she saw the Captain come down from the poop after beating one of the apprentices, and he was in a violent passion ; he struck Elizabeth Davis between the two shoulders with In a clenched fist, and then went, away into the cuddy ; before he struck lie said " Down below girls ;" they all went down except E. Davis, who said she would not go down as sbe had been kept below during the day ; witness was standing at the hatch and could see the captain coming down ; be cams directly oft" the poop and struck the blow ; he struck the blow before he said "Down below girls;" Davis was nearly pitched over the hatch by the blow ; she gave no piovocation that witness heard ; there bad beea a disturbance between the Captain and her during the day about talking to one of tbe passengers, for which she had been ordered below. By Mr. Whitaker : Witness was standing" i complainant when the Captain struck her ; there.vjie several other girls on that part of the deck ; it was dark at the time; Mary Ann White was standing on tbe other side of the hatch ; did not know if there were other passengers by ; did not notice the men on board m'ich, as she knew that might get her into trouble. James White stated tbat he was a steerage passenger in the Stately; on the 16th April last he was standing on the break of the forecastle a little before three o'clock in the afternoon ; he saw the Captain come down from tbe poop and lay hold of tbe complainant, shake her, and give her a violent blow on the back ; he went below and entered the circumstance at once in his log ; he saw the Captain and complainant distinctly, but being so distant could not hear what paised between them ; he knew of no prorocation on the part of the girl for the Captain's conduct. By Mr. Whitakeii: It was just before three o'clock that the occurrence took place ; it was quite light ; if it bad been stated that it was after dark when the blow was given, such statement was not true ; the book in wbich be had made tbe entry of the circumstance was his own private note book, in wbich he entered the occurrences of every day, daily ; be would let no one see it. (The Chairman here interposed, and informed the witness that be would be obliged to show that part of the book that contained the entry relating to the case under investigation. Tbe witness still refused ; and it was not until he was commanded by the Court to hand in the book on pain of committal, that he would consent to do so) ; the entries in the book were made daily, with his own band, and with a steel pen. Mahy Ann White, another of the immigrants, gave similar testimony as to the blow being struck by the Captain, but there appeared some discrepancy in uer evidence as compared with that given when the case was before the Court the other day. The case closed for the complaint. Mr, WntTAKER, for tbe defence, called Hugh Davidson, who stated that he was mate of the Stately ; recollected a circumstance that took place on the lGth April last on the poop between the Captain and an apprentice ; afterwards, saw the Captain go down tbe poop ladder and direct into the cuddy ; did not see him strike any body ; be could not have done so without him (the mate) seeing it. By Mr. Abraham : Witness was on tbe poop wben the captain boxed the apprentice's ears ; the boy flew at tbe captain's legs, tripped him up, and capsized him;, it was about half-past eight o'clock when the captain left the poop ; the night was not a very dark one ; the quarter-deck was lighted by tho cuddy lamps; couls see tbe captain from the stairs till he reached the cuddy door ; was positive that he did not Btnke any one after he left the poop. William Chalmers, one of the intermediate passengers was standing on the deck on the evening in question and saw the captain come down from the poop and go into the cuddy ; he did not strike any one on the quarter-deck as he passed; he could n«t have given any one a blow without being seen by the witnessThis closed the examination. Tbe Bench was addressed by Mr. Abraham, followed by Mr. Wiiitaker ; and after a brief consultatnon— The Chairman said that tbe evidence adduced to-day, by the complainant, differed in several lespects from what had been given in testimony when tbe case was before the Court previously ; but besides that, there were several material inconsistencies clearly apparent in the evidence, as given on the present occasion, in support of the information. He would mention the testimony of White, who swore that the offence was committed in broad daylight, whiLst another witness on the same &ide declared that the assault occurred after dark. The testimony on behalf of the defendant was clear and uncontradicted, and, when contrasted with that given, in support of the complaint, the Bench had no hesitation in declaiing their opinion that the case should bo dismissed,