RESIDENT MAGISTRATE’S COURT, GISBORNE.

Poverty Bay Standard, Volume II, Issue 102, 5 November 1873, Page 2

RESIDENT MAGISTRATE’S COURT, GISBORNE.

Thursday, October 30. [Before W. K. Nesbitt, Esq., R.M.; J. W. Johnson, Esq., J.P.; and J. B. Poynter, Esq., J.P.] Duncan Fraser surrendered bail in answer to an information by John Breingan for having maliciously shot a horse belonging to and being ridden by him the said John Breingan, on the 28th of October last. John Breingan sworn, states: I am a sheepfarmer residing at Waikohu in Poverty Bay I crossed the Waikohu River in company with some natives on the morning of the 28th inst., for the purpose of being put in possession by them of a run called Te Koutu. The names of the natives are Wi Mahuika and Tipene When we arrived at Blackstock’s whare, we breakfasted, during this time the natives had commenced driving Duncan Fraser’s sheep off the land. I did not assist them. I joined them afterwards. I saw Duncail Fraser coming towards me with a rifle, he had the nipple of the rifle under his coat to keep it from the ram : he said to me—What are you doing? I said “ what am I doing ?” He said you are driving my sheep : I told him that I was not, but that the natives were driving them. I referred him to the natives, immediately after this he said, “ I will shoot your horse.” I held out my hand and said “ do not do that ” he said “ I will ” and took aim and shot my horse from under me: the horse died within ten minutes after he was shot. When I recovered rayself from the shock, I saw the accused flourishing a stick over his head. I took the saddle and bridle off the dead horse, and went away, the natives accompanying me. George Blackstock remained : he had been taking charge of the Te Koutu run, and in my employ. By the Court: Not more than two minutes elapsed from the time I saw Duncan Fraser to to the time he shot my horse. He did not tell me to desist driving the sheep. Cross-examined by defendant: Wi Mahuika was the principal native to whom I looked for placing me in possession of this Run : I had no verbal arrangement with Mr. Wyllie about this land some months ago: I do remember Mr. Wyllie showing me Duncan Fraser’s agreement with the Natives for this land : I saw the signature of Wi Mahuika on the agreement: I had already completed my arrangements for this block of land with the owners: I do remember making use of these words : —“ Let Duncan Fraser go on with his arrangements, and I will not stand in his way : ” I was not aware that Tapuhi Hukitea was a portion of this land that Duncan Fraser claimed. By the Court: I should think the muzzle of Fraser’s Rifle was about ten or twelve feet from my horse when it was shot. Wi Mahuika sworn, states: I remember the 28th of October : I, Tipene and others went with Mr. Breingan to give him possession of the Te Koutu run which we had leased to him. We found Duncan Fraser’s sheep on the run, and we commenced driving them off on to his own land at Puwhatikotiko. I am an owner in both these pieces of land. Mr. Breingan had not been put in possession previously, although he had been there twice to see the boundaries. We had begun driving the sheep. There were eight of us. Mr. Breingan was there but was not driving the sheep. Not long after this I saw Fraser shoot Breingan’s horse. He did not tell us to stop driving the sheep. George Hassell being sworn, states : On the 28th of October I was at Waikohu : I saw Mr. John Breingan with some natives driving Duncan Fraser’s sheep: Mr. Breingan was walking his horse to and fro behind the sheep: I did hear that Mr. Breingan was intending taking possession of Te Koutu. While Mr. Breingan was in the act of driving the sheep, Duncan Fraser came up and remonstrated with him for doing so: they had some five minutes conversation, when I saw Duncan Fraser shoot Mr. Breingan’s horse. I consider that had he not used the means he did, Mr. Briingan and the natives would have succeeded in driving the sheep off the run. Cross-examined by prosecutor: Mr. Breingan was sitting on the horse when Duncan Fraser shot it: Mr. Breingvn was quite close to the sheep when driving them : I was about 50 yards from him when doing so. Before Duncan Fraser went up to Mr. Breingan, he passed the natives and George Blackstock. The Bench here enquired of the accused if he wished to make any statement connected with the charge and upon his signifying his desire to do so, was cautioned in the customary manner. He then proceeded as follow: — On Tuesday morning last Mr. Breingan and some natives wen driving my sheep. I told him to leave my sheep

alone, he refused and said he would not. I told him if he did not leave my sheep alone I should shoot his horse, he said “ you will ?” I ga jd •< veg I will certainly shoot your horse, if you do "not cease driving my sheep away.” He said he would not, therefore, I shot the horse to prevent him doing so. The Court was adjourned at this stage until 2 o’clock. On re-assembling, the Resident Magistrate delivered the following judgment • The Bench are of opinion that the prisoner must be committed for trial at the next sitting of the Supreme Court at Napier as they, although admitting that the prisoner would be justified in protecting his property and what he deemed his rights, yet they from the evidence can come to no other decision than that the prisoner was hasty and ought to have endeavored to prevent Mr. Breingan from driving the sheep without shooting the horse unless he found he had no other resource. The Bench therefore decline to take upon themselves the responsibility of dismissing the case preferring rather to leave it to a higher Court. The prisoner was then fully committed for trial at the next sittings of the Supreme Court to be holden in Napier on the Bth December next. He having entered into his own recognizances for £5O, and Messrs Wvlliand McKenzie £25 each. yu,e Poynter v. Breingan.—This was a claim in which plaintiff sought to recover the sum of £34 14s. being the cost of certain articles bought by defendant on taking possession of the Wae-renga-a-hika Estate. Mr. Breingan claimed a set-off for grazing plaintiff’s stock. E. Cameron said he heard a verbal agreement made, by which defendant agreed to allow plaintiff’s sheep to depasture at Waerenga-a-hika also saying that they would not disagree about payment. Witness left plaintiff and defendant together. Peter Breingan deposed to having heard plaintiff promise to pay after a certain date. J. B. Poynter states : I entered into no arrangement with Mr. Breingan to depasture his stock, but I did arrange to allow him to take possession of Waerenga-a-hika house before the lease expired, on condition that he allowed my stock to depasture on the estate until my return from Otago. Judgment for amount claimed and costs. Colebrook v. Anderson.—Debt £6 14s. Judgment by default with costs. b Colebrook v. Featherston. — Amount of order £9 6s lid. Judgment for amount, to be paid by monthly instalments of 30s. M'Kenzie v. Carr Brothers.— Claim £ll, value of a dog destroyed by defendants. The Bench considered the evidence insufficient to establish the identity of the dog and gave judgment for defendants. Te Naira, a native, was committed to gaol for one month for stealing a bottle of porter from the Shamrock Hotel; two inebriates contributed a little extra to the revenue for the luxury of making beasts of themselves, and two female disturbers of the peace were dismissed with a caution to “ sin no more.”