MAGISTRATE BUNDLE'S GLARING INCONSISTENCY

NZ Truth, Issue 1178, 28 June 1928, Page 5

MAGISTRATE BUNDLE'S GLARING INCONSISTENCY

. , (From "N.Z. Truth's" Oamaru Representative.) At best, it was scarcely one of those Sousa band affairs; just the Salvation Army doing its stuff m Thames Street the other night with the flares of hope and the strains of <( Shall We Gather—?" giving the place a real late-shopping night flavor. Then, all of a sudden, the drummer missed his rhythm, the trombone ripped out a wrong note, the bandsmen lost their step— and all was chaos !

THE stranger who had come unbidden ■ amongst them was a docile motorcar with headlamps searching the darkness, while over the wheel peered the less brilliant, scarcely understanding optics of James Maxwell Mullin, manager of the Oamaru branch of a big timber concern. Returning from Timaru, Mullin had failed to negotiate the opening between the avenue of toes, and the Army band, which had just settled, down to serious business. After striking a couple of bandsmen, the car pulled up m the .centre of the ring. In a few minutes a huge crowd had congregated, with Mullin naturally the cynosure of all eyes. • Not all the plaudits of the crowd were for the new-found star, however, for the Army adjutant had secured a small flask of whisky from Mullin's pocket— and with this exhibit he enterprisingly turned the text from salvation to the evils of drink. James Maxwell Mullin was later charged before Magistrate Bundle with driving a car while m a state of intoxication and m a manner dangerous to the public. .. Sergeant Petersen prosecuted, while Lawyer Hjorring, kept an eye on the business for the defendant. Lengthy evidence was tendered by Walter Iveson, stating that the band had just commenced playing when the car entered the middle of the ring. Mullin looked drowsy and his gait appeared unsteady. \ A man was waving a flask of whisky m the air and there was a general commotion. Edward Hill said he was reading a hymn at the time and did not see the collision, but he saw Burgess falling after the car struck him. „ George White, a saddler, stated that the defendant was staggering and was, he thought, intoxicated. He did .not know that the flask which was taken from Mullin's pocket contained whisky. He held it up, however, and someone said that there was .a i' * -

"Johnny Walker" label on it. He might have said: "This has done . the trick," but he did not say: "He hasn't come from a prohibition town." Bertie Burgess deposed ; that Mullin had called on him on Sunday night and told him he had two beers m Timaru and two whiskies at Otaio. I*he whisky m the flask was for . medicinal purposes. . ' ■ ■ Constable Voyce, who accompanied defendant to the station, said that Mullin's voice was thick and he smelt of liquor. ■ He had no doubt as to Mullin's condition when he saw him m Thames Street. Constable Moore considered that Mullin had consumed a fair amount of liquor. Sergeant Petersen had no hesitation m saying that defendant was not fit to be m charge of a motor-car. Despite medical viewsj he' ■would- still adhere to that opinion. Lawyer . Hjorring submitted that

Daniel Recce, a director of McCallum and Co., stated that his firm had complete confidence m Mulllri. ' Henry Abbott, a builder, gave evidence that he edged his way through the crowd just after the accident, when Mullin showed no sign of intoxication. William Ernest Austen, a newspaper compositor and an ex-Salvation Army officer, said that Mullin seemed "stunned or dazed," which seemed to be from the shock of having run into the band. ,„ Mullin seemed to walk very steadily. He heard the remark made by one of the crowd: "Hullo, Jimmy, drunk 3.ETBiln ! " ■ Robert John Wright, a builder and also an ex- Salvationist, said Mullin seemed quite" normal. He walked all right to the police station and showed no signs that, he had taken liquor. Edmund Percy Tonkins, a master nlaaterer, also deposed that he saw Mullin shortly after the accident, when he was "pretty well all right" and not intoxicated. , , .

5E LmmmmmmmmmimmimJ 'ii U , ii ii When Coates gets up to speak |! II 'II If lITHEN Coates gets up to speak, a glow || II . " Irradiates our skies. ...'.- is U The clouds and shadows flit and flow || If Before our wondering eyes. _ if if The world grows radiant and bright, 1| ii Content comes, fat and sleek, |i II To tell us everything is right, || 11 When Coates gets up to speak. |f !§.-. ■ ' • ■ ■ ■ • ■ ■ || §1 Thefe's unemployment— -Pooh! What then? U if Though wives and .kiddies cry, ' §1 H And droves of broken, workless men || Ii G^ driftina gauntly by. §| || .■ . This unemployment is not new— ; || 1| ' . Perhaps 'twill pass next week— ■ . H ii Arid that's' the comfort he'll give you || || • When Coates gets up to speak. ||j II Though darker, darker, year by year i§ II The outlook grows, Reform |§ II (He'll tell you with a voioe of cheer) || II Will weather out the storm. if |i Why worry, then? Starve on, be brave Ii il And patient, mild and meek,.. :•-,.. ;....i ; .,, ;,,^,^-4-^' > - H II You'll hear how nobly he will save if II When Coates gets up to speak. ii II * ■■•-.■ ..■■•..-.■..• If if O, politicians, plump and fat, II II Who stand around your Chief, ff ii Would I could give you tit for tat . II II And hear YOU call: "Relief!" . |§ 11 With hunger gnawing at your bones, || l| With hearts despairing— sick — il ii Then would you give, like us, your groans ii is When Coates gets up to speak! ||

Mullin's actions were prejudiced by some of the Salvation Army officers. It was a favorable opportunity for them to make an open discourse on the evils of drink, using the flask of whisky as evidence. Dr. A. Smith-Morton stated that when testing Mullin's condition, he found that the only symptoms were the smell of alcohol and the fact that Mullin admitted having had two whis-kies-and two beers. •He • applied a ■ number of tests as recommended by the 8.M.A., but they were negatived; Mullin could walk- straight and was not unsteady. His memory, was perfect, and he repeated his story two or tliree times without alteration. His movements were' absolutely under the control of his will, and he was fit to be m charge of a .car; Sergeant Petersen: Would you be prepared to pit your experience of examining drunken men against my 21 years? — Yes, I certainly would. The medico further stated that some men could drive a car muoh better after having consumed, one or two drinks. Dr. James Whitton also testified that Mullin was not intoxicated.

Jack Hunter Main, a solicitor, saw Mullin two hours after the accident, when he was perfectly sober and witness could hot detect any smell of liquor. James Maxwell Mullin detailed his movements on the day of the accident, stating that he had two beers m Timaru and two whiskies at the Ma-, kiklhi Hotel. In Thames Street he took out his watch to see the time, when he saw a man with an instrument m front of his car, which he pulled up at once. The flask of whisky was one of the small 3/- variety. White had held it up and said: "This is what did the trick. He hasn't come' from a prohibition town." When he reached the station Mullin said he was not drunk, to which the sergeant replied: "No, but your breath smells of whisky." He very rarely took liquor and never kept it at home. In view of the recent acquittal of a prominent Dunedln doctor on a similar charge, through the favorable medical testimony, special interest was manifested m the conclusion of the case. Magistrate Bundle said that the out-

standing features were that the Salvation Army was m a brilliantly-lighted part of the street on a clear night and should have been tlearly visible for a considerable distance to anyone keeping even a perfunctory look-out. He was quite unable to accept defendant's explanation as a defence to the ,charge of driving m a manner'dangerous to the public. Even accepting the explanation, defendant was guilty of gross negligence and would be convicted. But the matter did not rest there. It was alleged that defendant's action was due to intoxication. ' He did not agree with Dr. SmithMorton, who said that some men would drive better after having had one or two drinks. He thought thai rather far-fetched. . Further, the S.M. could, not see that any circumstances connected with the driving were such as to cause any. shock temporarily to affect defendant. He was clearly of " opinion' that defendant wag m the condition described by the police witnesses and such condition could not reasonably be held to be due to the collision. - He was forced to the conclusion that defendant, when he drove into the Army, was under the influence ' of liquor and unfit to be driving a car. Senior-Sergeant Shanahan informed the bench that there were. two previous convictions, one for. being drunk m charge of a car and the other for speeding. ' > *Lawyer HJorring stated that on the former occasion m Christchurch Mullin had been found asleep m a car. He was not driving. His worship said that had the circumstances of the first conviction been otherwise, he would not have hesitated m sending defendant to gaol. Mullin was convicted on both charges. On the charge of being . intoxicated m charge of a car he wa3 fined £15 and prohibited from driving for two years. (This case Is discussed In a leading article on page 6.) 'iiiiitiinHiiriMiiiiiiiriMiitiimtttniiuniiiiiinutniiNtminiininmiintiiiiiitiiintmiiimiiHiimiimiiiint