ASSAULTED WITH A HORSE WHIP.

Pukekohe & Waiuku Times, Volume 5, Issue 184, 20 June 1916, Page 2

ASSAULTED WITH A HORSE WHIP.

An Undeserved Attack. Damages Awarded. At a special sitting of tie I'ukekohe Magistrate's Court, held yesterdsy, before Mr F. V. Frazer, S.M., George Mclilvoy, lately a billiard s<looi kener in Pukekohe and now a l.ance-Corooral attached to the Fifteenth KHntorcements, was charged with having on Siindav, M»y 14th. assaulted John Coady, picture thenre proprietor, by huving struck him wito his fist, and also for having on the following dav struck him with a stick. In a civil action dtmages to the extent of £2OO were clnimel m respect of the assault. Dr Bamford appeared lor toady and the defendant, who was present in Court in uniform, had Mr C. 0. Mabony as his Counsel. The defendant, in reply to the criminal charge of assault, pleaded guilty "under extreme provocation." The Magistrate raised the point whether he had power to hear both a criminal charge and a civil action affecting the same assault. Mr Mahony submitted that the law was that a conviction tor a criminal charge was a bar to a civil action.

A suggestion by Dr Bamford that the civil action should be taken first was accepted by the Magistrate, Dr Bamtord remarking that it was not his client's desire to secure pecuniary gain from defendant, as it was doubtful if damages cauld be recovered (rum him, his motive being to ventilate the matter and to clear his name in the eyeß of the public. Thus one decision would probably suffice for the whole of the cafe. OUTLINING THE CASE. Dr Baml'crd, in addressing the Magistrate on the civil action, stated that his client had resided in Pukekohe for the past three years, beiru the proprietor of (he local picture theatre and a man well known to the public and of good character. The defendant, McEvoy, had carried on the business of a billard saloon for some little time prior to his going into camp a few months ago, when he left behind bim in I'ukekohe bis wife and some children by a former marriage. The defendant returned from camp and meeting the plaintitL' in tbe street he accused him of having tried to force his attentions on hi# (McEvoy's) wife during hia absence and of having endeavoured to gam admission to her house. He thereupon struck him several bluws and followed that assault up by the following evening going to the boardinghouse at which Coady lived and decnyitig him out of the house he struck him with a stick or riding - crop. Finally McEvoy threatened unless Coady gave him an apology he would return in three weeks' time from the training caipp with 4'J or 50 other soldiers and would drag Coady through the streets of Pukekohe and would "tar and feather" him. Counsel said, in conclusion, that Coady denied being guilty of the acts of impropriety alleged against him and he came before the Court to ask that the great wrong done him in the form of a public degradation of an attack in the street and later on before his fellow-boarders at the boardinghouse should be righted.

IHE CHASTISEMENT DES CKIBED.

John Joseph Coady deposed that he was the plaintiff in the action, and that on Sunday morning, May 11th, he bed occasion to go to Mr J. U. Russell's bouse in darns street, whither be proceeded in company with a friend on his motor cycle. Be (plaintiff) had been secretary of the Soldiers' Farewell Committee, and seeing McEvoy, who lived opposite Mr Hussell, coming across the road he went to meet bim, and put out his hand to shake hands with bim. McEvoy at once said, "What, shake hands witb you. You are a cur." He asked him what was the matter, and McEvoy replied, "You interfered witb my wife and tried to get into my house whilst 1 was away." At tbis stage, on the application of Dr Bamford, ?ll witnesses uther than »he defendant were ordered out of Court.

Plaintiff, continuing, stated that be told McEvoy that there was some mistake as he had never done any thing of the kind alleged, but defendant again called ium a cur and struck him twice on his face. He (plaintiff) was very upset at the public exhibition made of him in front of the houses and he asked defendant to be cool and to tell bim what was wrong, but defendant struck him again and used bad language. His ear waa cut and his eye was swollen. He once more appealed to the defendant to be sensible, but defendant rushed at him and again struck him several blows. Mr Kuaseli came out of his huuse and ordered defendant away, as be was alarming ladies in his house. McEvoy then released him. The following (Monday) evening about eight o'clock whilst at the boardingbouse where he lived, he receive 1 a message that he was wanted, and be went to the door and saw a young bov, named Harris, who said that he was wanted at the Rate. He walked to the gate with the boy, and beating a noise behind him he turned round and was faced by defendant, who came out from the shade of some trees. The defendant was wearing his uniform and an overcoat and held in his hand a stick or riding whip. Defendant shook the whip in his fac?, saying, "I want a written apology from you and if 1 don't get it I arr going to lay this stick on to you." He replied, "I have nothing to apologise for and 1 decline to give you anv apology." The defendant took off bis coat and thraw it on the ground and catching hold of him belaboured him with the whip, giving; him several blows on his thighs and legs. He was terrified, but he had no thought of sacrificing himself by giving an apology. A man, named Harris, then came out trom under the trees and beld McEvoy's arms, and at the same time two men and three lady boarders came out of the house. McEvoy still held him. and said to the onlookers, "This man intertered with my house whilst I was away." lie added, "It ia an old game of yours." and he then made the threat to "tar and feather" him as mentioned by Counsel. Plaintiff

went on to say that he gawp Mips Fclljwb a pass to Die thcntra lor two for one night, but he did nnt give it to Mrs McEvoy. Miss Fellows asked bim fnr the pan?, saying thiy cmld not afford to altfajs pay for attendirp the j,u--tures. On the evei mg Mi« MrEvoy and Miss Fellows were p the pictures he spoke to thi-m in fie theatre before the programme started, but 1 rft to attend n farewell function at a private io'is \ lie did not eee M's IVelivny or Miss Fellows af'er that night until subsequent to (he assault. Cross-examined: He was certain that Misj Fellows asked lor th° pass to the pictures arid that he did not off rit to Mis McEvov. It was not likely that in the thtatie in the presence of his clients he winked or beckored to Mis McEvoy to come out. Ths way he cime to know Misj Fellows w*;s that whilst posting bills at the tLejtre he noticed M-s McEvoy standing near with Miss Fallows and he n»ked Mrs McEvoy to introduce hi in ti her. He denied thf.t when he gave the ticket he asked Mrs McEvoy to go into the theatre with him as he had a "great secret" to tell her. He had never had any similar trouble in I'ukekohe in respect of any other woman. He did not think the whip (producea) was th« one with which he was struck; he thought a heavier one was used by the defendant when he attacked him.

Edgar F. Hadlow, grocer's assistant, stated that he stopped in the same boardmghouse aa the plaintiff, and on the night of May loch, hearing the sound or bluws like "tha b2ating of a carpet," he went outside the house and saw thu defendant holding the plaintiff and striking him on the legs with u whip. He heard the defendant accusing the plaintiff of having made improper suggestions to bis wife, and heard him further say that he would "tar and feather" him If he did not give him a written apology. Cross-examined: He distinctly heard the defendant make tbe threa about tarring and feathering. DEFENDANT KEGUKISD.

The defendant audibly laughed nl this remark, and Dr Hani ford observed, "Mr McEvoy seems amused over the threat," whereupon defendant exclaimed, "It is rather amusing," but the Magistrate interjected, "Keep your amusement until after this show is over. This is not a picture show."

Dr Bamford then intimated that as tbe assaults were be would call no further evidence thereon.

A SOLDIEK'S HONOUK,

Opening the case tor the defence,

Mr Mahony said that having donned uniform and gone away to to serve bis county, Mchvoy was naturally angered by what his wile had told bim had happened 10 his absence. He (Counsel) submitted that the assaults although legally wrong were morally right and justifiable. Ab onlv a few blows were struck on the occasion of the lirst] assault McEvoy was not satisfied that the plaintiff had been sutiiciently punished, so be proceeded to carry out the second assault. The defendant, giving evidence, related that in consequence of a telegram received by him at

Featherston Camp that his wife was very ill fie arrived back home on Saturday morning. May I,'Jtli, and soon utter bis arrival, his wife, who was ill in bed, told bim that the plaintiff had made suggestions to ber as to her letting him into the house. The next (Sunday) morning he saw the plaintiff going to Mr Russell's house and he went across to him. Plaintiff came towards him smiling and beld out his hand to him, but he (defendant) said, "I will not shake bands with a lur." The plaintiff replied that there was some mistake, and he remarked, "You made the mistake of insulting my wife, but you foutd her a different woman to what you exp«cted." He then struck the defendant four blows, but ceaeed the attack not through Mr Kuaseli coming out to him but so as not to upset his wife, who he noticed was watching what was occurring. The defendant added, "It was enough to stir the blood of any man who had gone away for his country and leit everything behind him to think that bis wife was being so treated bv those left behind." Defendant went on to say that he went up to the boardinghouse on the second occasion as he was quite satisfied that the plaintiff had not got what he tiesarved, and also to demand an apology. He met a Mr Harris and his boy and asked the latter to go and tell the plaintiff that a young lady wanted to see him at the gate. As the plaintiff came down tbc garden he got behind him. Whilst h 3 was t9king olfh his overcoat and tunic the plaintiff bolted, but he followed him, striking him on his back with his stick. He then naught hold of the plaintiff and struck him a few blows across the thighs. The stick he used was the one prodoced, but it then had n leather thong attached. llarria intertered and stopped further blows. He than asked Coady for an unconditional apology and Coady offered to give Buch on condition that it would not be used against him ia i'ukekohe, but he (defendant) would not promise that. Cross-examined, the defendant said that he was not a jsalous man. He had not been convieted of an assault and had never assaulted anyone by reason of jealousy of his late wile. He arrived back on the Saturday morning, but did not attempt to find the plaintiff that day.

Dr Bamford; You were bursting with righteous indignation and yet you did not go alter the plaintiff until a day had elapsed. You are posing as an injured husband and I want to know why you did not immediately Beek him. **" Defendant: 1 intended to chastise Coady the first opportunity 1 got. Cross-examination continued: He was on perfectly friendly terms with bis wife. He knew that there had been simc talk in Pukekohe about the way in which his ' children by his former wife wete being neglected, but such wifs not the reason he returned home and he did not have "words'" with bis wife about that. In letters she had written him his wife had made no compluint about Coady. Although Coady was a much weaker man physically than he wan Coady refused to give him an apology to escape the thrashing. lie had been makng enquiries about Coady's past in the same way that Coady had been

making enquiries about his (defendant s) pest. Dr Bamford, to the Magistrate: You will note that although defendant admits making enquiries not a single question to ihe detriment of his character was asked my client in^<Di?--« ximination. In r-.*y to tne Magistrate, the defendant admitted that he knew that although his wife said she had been insulted by the plaintiff hi the afternoon, yet she used the ticket plaintiff had given her and attended the pictures the same evening in company with Miss fellows.

THE WOMEN'S STORY. Elizabeth M. Mctivov, wife of the defendant, was the next witness, and she testified to having on May Ist introduced Mi=s Fellowr, who was stopping with her, to the defendant. On the atfernoon of Wednesdav, May 3rd, whilst ahe and Miss Fellows were passing the theatre the plaintiff offered her a ticket for the pictures in the evening. They did not a?k plaintiff for it, and ahe was certain tbe plaintiff offered it to her, although Miss Fellows put out her hand and took it. She noticed Coady "winking bis eye at her," and he asked her to go into the theatre with him as he had "a great secret" to tell her. She renlied, "Certainly not Mr Coady. f am a respectable married woman." Misa Fellows said, "Whv not tell both of us," to which Co3dy's answer was, "She (meaning witness) can tell vou afterwards if *he likes." Ihey went to the pictures with the ticket the same evening and before tbe pictures started the plaintiff came to theta in the hall and winking at her asked if he could B'e them home afterwards, ,and he also said, "Is there any chance of slipping in tbe back door at mgbt time." She replied that thpy could see themselves home, and that she did rot want anyore prowling about the house at<Jiight time. By the Magistrate: When tbe conversation took placs in tbe afternoon she h?d a child in a perambulator with ber, and Miss Fellow" was also present, m the evening Coady again spoke in tha rrssence of Miss Fellows. Cross-examined: Tbe only complaint she bad against Coadv was as to bis conduct on the day they went to the pictures with the ticket, botb in the afternoon and at the pictures. When Coady winked at her in the theatre the lights were on. Miss Fellows and everyone round about could have seen him winking at her.

Ur Bamlord: Jt raußt have been very cmharrassing for you. Witness: 1 did not care much about it. (Laughter.) I'roceJding, witness informed Dr fcfamford that it never struck her that Coady might have been attracted by Miss Fellows, and it did not occur to her as curious that the only time Coady talked of seeing ber home was subsequent to bis introduction to Miss Fellows. She still maintained that with the lights full on and in »he presence of Bliss Fellows and with other people sitting around Coady winked at her iu the theatre. s'he was taken ill on May 6th, and her husband was wired for in view of an operation being necessary. She did not write to her huebarid to complain of Coady'a conduct towards her and although the police called on her in regard to another matter she made no complaint to them, but she told the doctor that a man (meaning Cnady) wanted to take her husband's placp. When her busband returned he was not angry with her about the children.

By the Magistrate: She thought "the great secret" Coady wished to impart to her was improper, because Coady wirkfd and nodded at her. She did not consider that he might have been wanting to ask her something about Miss Fellows. Dorothy Fellows, a resident of Auckland, deposed (hat she had been temporarily stopping with Mrs McEvoy, and she proceeded to give evidence similar to that of Mrs McEvoy. She added that in the week following their visit to the pictures the plaintiff met her and evidently knowing that Mrs McEvoy was ill in bed askrd after her (Mrs McEvoy) and the children, and then suggested that he might be allowed to call on witness.

During the course of Miss Fellows' evidence the Magistrate commented on the similarity of tee phraseology of various statements as made by Mrs McEvoy in the witness box and repeated by Miss Fellow?.

In crossi-examination, Miss Fellowes admitted that she had "talked the case over" with Mrs McEvoy. Sue further stated that it did not occur to her that the pUir.tiff in bis last conversation with ber wanted to call on her rather than on Mrs McEvoy, although the latter was ill in bed at the time.

"AS CLEAR AS DAYLIGHT." This closed the case for the defence, and the plaintiff, on being recalled by Dr IJamford, denied winking at Mrs McEvoy in the theatre or having suggested to her that te sfould see her borne and ahould "slip in the back door." He added that he desired to correct hn former statement as to not having seen Miss Fellows subsequent to fcer visit to the pictures, as after what fhe had said he remembered that he did meet her. He was attracted by her appearance, and suggested that he might call on her, her reply being that she already had "a young man." Dr ijamlord: You unfortunately discovered vou were not in the running. (Laughter). After what Miss Fellows had said the rase is as clear to mess daylight. It was a misunderstanding on Mrs McEvoy's part, and it is apparent that it was Miss Fellows who was the attraction and not Mrs McEvoy. COUNSEL'S ARGUMENTS. Mr Mahony stated that after the Magistr '-'s intimation he would as.; Ilia W r-hin 'o remember th it th- • :>. '- ndan! ncted in tbe way he ',aa ' .re under the impression ll> ' /" -a-as protectirg his homp. 4 Dr tf«,i"'' pi; n t»' I that the plaintil! i; nl uu h-tc <o be vindicitive, but ui iht oiiii,. lime no one could be publicly horsewhipped witb'jut smarting under the indignity. JUDGMENT. The Mae is l rate considered that, if was ridiculous In HtipgfHl that the pl nnli.T in hrnad daylight and jn the presence ot a child and Miss Fellows attempted to induce Mis

McEvoy to enter the theatre for an immoral purpose and he doubted if the women thought such at the time, seeing that they the dame evening attended the pictures with the ticket plaintiff had given them, l'hen, again, in the evening plaintiff did nothing more than oifer to see them home, and it had to be remembered that although such a suggestion to a married woman might be constructed as improper it might be taken as a compliment to a single woman like Miss Fellow*. The admission ot Miss Fellows that whilst Mrs McEvoy was sick in bed the plamtilf asked tor permission to call on ber (Miss Fellows) settled the question in his mind. The trouble arose, he thought, bv Mrs McEvoy during her illness imagining things. The defendant, however, bad honestly believed his wife's statements, but he might have realired that it was Miss Fellows and cot Mrs McEvoy that plaintiff wanted to eee before he rushed to such methods as mentioned in novels like horsewhipping and using threats to tar and feather plaintiff. The defendant took the law into bis own hands without justification, and an innocent man wa» assaulted and horsewbpoed, acts that tended to lower plaintiff in the estimation uf people of the town. However, the plaintiff only asked for reasonable damages, to include the expenses he had been put to, and he (the Magistrate) was quite prepared to give such damages as Counsel might agree upon.

, After a brief adjournment of tbe Court, during which Counsel conferred, Dr Bamford announced that £25 damages and costs on that scale had been agreed to. The Magistrate thereupon entered up judgment for the plaintiff for £25, allowing £3 18s as costs, and the criminal charges were withdrawn.