RESIDENT MAGISTRATE'S COURT.

Southland Times, Issue 935, 17 April 1868, Page 3

RESIDENT MAGISTRATE'S COURT.

WEDNESDAY, 15th APRIL, 1868. (Before John Blacklock, Esq., J.P., J. I\ Dundasß, Esq., J. P., and Duncan Macarthur, Esq., J.P.) C. D. Irvine appeared, on remand, in answer to a charge of having been found on the evening of Tuesday, the 7th inst., upon the premises of the Rev. Mr Tanner, North road, without lawful excuse. Mr Harvey conducted the prosecution ; the prisoner undertook his own defence. Mr Harvey said that at the previous hearing he had proceeded as far as the examination of one witness, when the case was remanded. Since then the prisoner had 'subpoended the Resident Magistrate, before whom the first exauination took place, as a witness, and it would therefore be necessary to open the case de nova. Mr Irvine applied to have all witnesses in the case ordered out of court, excepting Mr Weldon and Mr Harvey, who, although witnesses, were necessary to the progress of the trial. Mr Harvey said the charge against the prisoner was brought under the 11th subdivision of the 4th clause of the Vagrant Ordinance 1866. Which deemed " a rogue and vagabond," any person found upon premises, within gardens or inclosures, or on board ships, within certain hours, without a lawful excuse. The clause was very explicit and very strin-

e gent, specifying the hours between which *> any person might be apprehended on n snspicion — nine at ni^ht and six in the lt morning— and the nature and extent of ! * the punishment to be awarded to persons '* convicted — imprisonmeut with hard d labour. In fact the whole act was con- »• structed on the idea of throwing the whole burden of pToof on the person ac- * cused. He would be able to show that the prisoner had been found on Mr 6 Tanner's premises after the hour named, y and that without any lawfull object ; that he had for years, in the most cowardly manner, subjected Mr Tanner • to a system of rascally annoyance ; that Ix he had more than once entered his house, a after havingbeen strictly prohibited, in the . guise of an old woman, and that he had for some purpose been tampering with j one of his domestic servants. One of the strongest bearings of the case against the prisoner was, that he had gone to Mr Tanners' in disguise after having been most strictly forbidden to intrude himself into the house, or even to speak to an v member of the family in the street. Mr Tanner as a clergyman, had felt very | loth to bring the case into court or to take severe steps in the matter, and had long put up with the annoyance while doing what he could to put a stop to it. He was, however, naturally enough, most indignant when on returning from a journey, he had found that his injunctions had been continuously disregarded ; that the accused had been for a length of time carrying on a system of clandestine visitation at his house ; that he had been effectually tampering with one of his servants ; and that during his absence he had more than once been in his house in disguise What the consequences might have been had the prisoner come into contact with the lady of the house herself, he (Mr H.) would not pretend to say. Mr Tanner was, however, even yet unwilling to press for extreme punishment, and had instructed him to ask the Bench merely to express its sense of the crime in such a way as would put a stop to the annoyance for the future, without being unnecessarilly severe upon the accused. The case for the prosecution might close with the evidence of constable Tuohy, who made the arrest, whom he would first call, but he would also bring forward Mr Tanner and the servant girl, whose evidence would show that the offence was of long standing. Constable Tuohy sworn, deposed: I was on duty on the North Road on Tuesday evening, the 7th inst. I was there watching Mr Tanner's premises according to instructions which had been given me in consequence of certain information received. About half-pastten I saw a person dressed in female attire come from the direction of Harrisville, and enter Mr Tanner's premises by a side gate. The person appeared to listen a moment at one of the windows of the house and then went on and knocked at the back door. She (or he) then went to another door, also at the back, and tapped. The door first knocked at was then opened by a female, whom I took to be the servant. They conversed for a little and then the servant withdrew into the house. She immediately afterwards came out again, and they both proceeded to the fence at the back. The first female (the prisoner) broke off a paling or two, and went out to the vacant ground at the >ear, the servant stayed inside, and returned to the house. I then went forward and arrested the prisoner. He was in female attire, and at first was very confused and excited. He was feeling about his pockets, and I gaw something in his hand which looked like the Btock of a pistol. I then covered him with my revolver, and ordered him to throw off his head dress j that I might see who I had to deal with. He then became " quiet, took off the hood, and told me he had been to see Mr Tanner's servant. I then took him to the lockup. • Cross-examined by the accused: You walked to the lock-up in your ordinary dress ; you did ask me to take you direct to see Mr Weldon, but I declined. I did not know who you were until after I took you in charge — until you threw the hood off — you might have been Q-arrett for anything I knew. I had passed you on the road, before you entered Mr Tanner's, and said ' good evening ma'am,' you did not reply, and I repeated the salutation. Your face was not blackened, nor were you shaved. The girl first spoke to you at the door. I think I did mention at the first hearing that she accompanied you to the fence. Just before I arrested you, you were going about, occasionally stooping down, I thought you looking for a hiding-place, from whence you would return again to the house. Accused : ' Your expectations have •nothing to do with the case. Witness: When I didarrest yf>u,youweregoingfrom the fence, and were about ;i aandred yards away. I said I took you in charge for being on the premises with a felonious intent, you walked quietly enough to the lockup. When there you did request me to go and tell Mr Weldon whom I had arrested. Accused : ' Then in fact the prima facie case on which you arrested me was for going quietly and decorously up to a door and knocking at it in the disguise of an old woman?' Cross i examination continued — There were lights in the windows of the house at the time you called. I found no arms or weapons on you when searched at the watch-house. I did present a loaded revolver at you, when I took you, and cocked it. You drew something quickly from your pocket which appeared to me the stock of a pistol but which turned out to be a tweed hat firmly folded up. It might be three minutes from the time I arrested you until I saw your face. I had no idea before that who you were. I was in plain clothes that night. Sergeant O'Keefe was on duty with me that night, but wag not present when I apprehended you. I Bvvare you did not, the moment I mentioned the word arrest, turn to the light and say who you were, you used every effort to disguise yourself, until I covered

h I you with the pistol. I have been a conn stable here for six years and have no\ ie previously known you to do anything jf wrong. I am not a detective, though lS sometimes doing detective duty — any l( j constable is a detective. I dont think ] L . ever said the disguise was very frightsome c The accused proceeded to ask witness „ a number of questions relative to th« $ nature of his instructions, who gave r them, and how the information was \ f obtained. Me Harvey objected, and the ! Bench ruled the questions irrelevant and ,£ inadmissible. The accused craved the ir indulgence of the Bench, explaining that £ he had tried every means to obtain legal » assistance, but was precluded, in cong sequence ot Mr Harvey, the only ,j lawyer in Invercargill who could have h undertaken his defence, being engaged c for the prosecution- He (accused) c had applied to both Mr Macdonald and P, Mr Stewart to assist him ; the former j I had said he could not, being Crown 3 1 Prosecutor ; and the latter that his official 5 appointment as Registrar precluded his practising; he would therefore have to j trust to the leniency of the Beach in the 5 event of his asking improper, questions. I Being no lawyer himself he was placed in 3 a position of great disadvantage. [ The Eev. W. Tanner deposed- — I have known the prisoner about four or five I years. About two-and-a-half years ago I had occasion to forbid him my house or . to speak to any of my family. Since f then I have suffered continual annoyance 3 at his hands, many of the circumstances t are small, very trivial, but he has been exj cessively persistent. I have during that » time had occasional intercourse with him" t in my capacity as a clergyman. I advised f; him to let our intimacy cease, but he ) would not accept his position, and kept forcing himself upon our notice. The ' last occasion on which I had to complain ; of him was about Christmas time, when . he attempted again to force his ac- : quaintance upon us. I wrote to him on > the subject through Mr Butts. I had ; forbidden the servant either receiving letters, or communications of any kind [ from him, and I trusted her. I had no . idea that he bad been habitually secretly ? visiting at my house, until my recent return home, when I was astounded on discovering what had been going on. , Accused's visits to her were distinctly agaia3t my expressed wish, and without my knowledge. To the accused : — I did not say you had forced yourself upon us in an ungentlemanly manner, I said " persistent manner." Tes, one of the occassions I complain of was your sending me, at Christmas time, a case of wine — which I returned — accompanied with a note containing the usual compliments of the season, and wishing to renew our intimacy ; I declined. You would not accept your position. I have known you four or five years. You have been a very regular attendant at Church, a constant communicant, and made yourself very useful in the choir, and Sunday School. You would have been altogether a very good member, had you conducted yourself with more sense in one or two little things. Accused : ' But cannot you answer without the parenthetical remark ?' Witness : ' One continual littlo folly may spoil a deal of good. I have personally no ill-feeling towards you, and I was unaware of the fact of your visiting Lily.' Accused : ' How then could I have caused you annoyance ?' Witness : * Because it cime on me in an accumulated form, after having supposed you had long ceased your visits to my house, to find you have been all along coming there.' Accused : 'Do you believe the eleventh commandment (laughter, immediately checked), as found in St. John. chap. 13, verse 34?' Mr Harvey : 'We do not want blasphemy.' Accused : c I have no intention to blaspheme — look at the text.' Lilly Campbell, sworn, deposed : I have been a servant with Mr Tanner's family for three years. I know Mr Irvine, couldn't exactly say for how long, about two and a-half years. T recollect the night he was taken prisoner. I have not spoken to him since, nor have I received any letter or message, or seen any one from him. Mr Harvey, to witness : Ueoollect the oath you have talen. You must tell the truth, the whole truth, and nothing but the truth. You must not o.ily notf falsify, but you must keep nothing back. Have you not seen Mr Irvine since the night he was arrested ? Witness : ' No, not outside the house, not to speak to, I have seen him at a distance, through the window. He has not sent me any message. 1 Mr Harvey: 'What did you tell Mr Irvine that night. Witness, agitated — c Gaelic is my first tongue, and I cannot, understand deep English. Mr Harvey : 'Did Mr Irvine speak to you in gaelic ?' Witness : I understand plain English — I was teaching him some words of gaelic.' Mr Harvey : ' Very well, I will talk plain en-nigh to you, a3 plain as Mr Irvine could.' Mr Harvey to the Bench : Yo\w worships, I apply to be allowed to examine this witness in the way of cross-examination, as she appear* to be a very unwilling one. Mr M'Arthur here suggested the interposition of an interpreter, when a Mr Robertson was called from the body of the court. Witness ! through him, stated that she could not remember all that had been said between Mr Irvine and herself on the night in question, but the would tell all she did remember. ' She had told him that she had told her mistress that he was there, and then told him' he was to go away and never come back again.' Mr Harvey : Do you. on oath, say you understand English so imperfectly as to be unable to answer plain questions. Witness : No. Mr, Harve y: Then I shall proceed with the examination in English; - • ■ ' ' . Examination oontinued : I made the disguise for Mr, Irvine. I can't say how often he wore it. I gave itto'him on V Wednesday niglify' and I told my mistress of it on the Tuesiay followm*. I can't say how often he had been in the house 'between these times. ' He ! was once with it on. I knew he wa* forbidden to visit the family. Mr Tanner didn't say he musn't come to see rap. I remember the tune he was forbidden — two and a-half years ago. He commenced visiting me shortly after. He came seldom — -now and "then. He never .told me his obiect. I never asked him. He never came inside the house excopt at my request. He aome- , times came before it was dark. I did not tell my mistress of his visits. I thought it no harm. I can't say Mr Irvine ever told me he wished to regain his intimacy with the family, I bought • the material for the disguise. I did not know there was any law against it. He wished he had such a thing, and I got it. I don't know whether he visited me all that time for my own sake. I never asked him. I never told my fellow gervant 1 that the old woman who came occasionally ww a i man. He came because he said h« wished to have somd one to speak to. I was ■ometimos quite amused at his coming. I told my mistress at lftit because JL thought it best to tell. '■ Mr Harvey : So do I. Cross-examined- by. accused— l- spoke about the disguise first, we were talking and I laid —

L . *' since you are suoh a wi/ked ni-ui its a pity y<m j. have'nt a womans dress altogether, (Laujhter). Accused. Did I ever write to ym Lilly? n Witness: Why do you ask mo ihat question? h Accused : Because I hay •he ird it suil th it same y letters of mine to you h *ye boon shown about J town. Witness: I never had a single strode from you. Accused : Lilly you usel to put little slips " on the fence for me — I asked you ofcourso, but 8 you did it lid yoa not, sometimes to tell ma when 6 to come ? Witness : Are you trying to condemn c me. Accused : Vo, but you ire to con lernn me. s I havo no more questions to a*k this witness. c In reply to the Bench, the witness stated that . she bought the clothes for the disguise herself, and " paiil them out of her own money. 6 Mr I rvine, bofore calling evidence for the det fence, a Idrossed the Court in an able speech of | much length. He said he felt most acutely the seriousness of the position in which ha stoo 1, and that however much others ini^ht be amused, it , y was a case of life or death to him. He felt, ia ."' 3 fact, v fighting for his life with the rope round his" j neck; as to an elu-vitd I parson of his standing, \ a sentence of a year's imprisonment with hard i labor, was in reality tantamount to one of death. He wis, besides, placed at great disadvantage r through having failed to obtain professional assistL ance. He was also aware that .he stood 1 there in a very humiliating position, — 5 charged with a criminal offence — and he felt overwhelmed with shams. The Act under which he was arrested, was a sever • one, as had been said J by the counsel for the prosecution, and was an • exception to English law, which accepted every l man as innocent until he was proved guilty, whereas this enactment — a New Zealand onethrew the whole onus of proving his innocence ' upon the accused. The case was not one of equity, } but simply of law, and in his defence he would > require to prove that he had not been guilty of ' breaking the law. He then reviewed Mr Tanner* i evidence, and continued. 'My excuse I plead " for being on the premises, is, that I went to knock ■ } at the door. If your worships ask me ' with what object ? I reply to see the girl, with • whom I was acquainted. Should you aak ; me what I said to to her, I reply [ enquired [ if Mr Tanner had returned, and, on her replying I iv.the negative, I went away. With reference to Mr Tanr.er's forbidding me the house, I considered the command applied to his own family only, and not to the domest'cs as well; and with respect to the disguise, my adopting it shows how anxious I was to avoid obtruding my presence on the family, and shows how much the prosecutors are astray*.' With regard to disguises generally, Mr Irvine contended that the object for , which they were assumed constituted the offence, and not the dress itself. He said disguises were very common, and instanced the recent bal * masque in Melbourne, and several other occasions on which they had been publicly worn without the wearers being subjected to arrest and prosecution With regard to the particular disgui • which he had worn, the accused, lifting the articles one after the other from the table, said— " Your worships will notice that this is a hood or bonnet, this a skirt, and this a plaid, an article I usually wear. Now your worships, I would ask what is the ordinary dress of a Highlander ? Is it not a bonnet, a skirt or petticoat, and a plaid. I had, bosHes, my ordinary dreas underneath. 1 therefore submit that I was not nearly so indecently dressed as Highland people generally are." - (Great laughter). Mr Irrine went on to say that he had no desire to treat the matter lightly; that he fully recognised the folly and indiscretion of which he had been guilty, but that wiser men than he occasionally committed a little folly, and asked "If all the people in town who had been guilty of little errors, were to walk two and two to the lockup, how many would be left in Invercargill ? " He said he would be able to show that a conspiracy had been formed against him, that a trap had been laid into which he fell, and that had those professing to be Mr Tanner's friends . really acted as such they would hare warned him to keep away, and thereby hareavoided the scandal of which he was, no doubt, the first cause. Mr Irvine concluded his lengthy and ingenious address by saying " Why persons should take so _ much time and trouble to annoy me for visiting, for conversing with this little girl, I cannot ima"in<*, except on the supposition of a plot. Even it your Worships should not accept my view, I must reqnest you will allow me to bring on my witnesses and examine them, as I have = been so mnch maligned.'' He then expressed hit readiness to answer any questions from the Bench. The Court adjourned for three quarters of an hour. The Court resumed at two o'clock. Sergeant O'Keefe was the first witness placed in the box for the defence. His evidence had little bearing on the case, except as showing that it was customary for police officers to do duty in plain clothes, and to carry arms after dark. He declined to answer accused's questions relative to the nature and source of his instructions on that particular night. W. Fraser, gaoler, deposed that accused wai given into his charge on a remand warrant signed by Mr M'Culloch. The offence was stated, but there was nothing said in the warrant about bail, as was sometimes done when bail was to be accepted. The prisoner was bailed out the following day, himself entering into a recognizance for the sum of £40, and one surety for £20. E. D. Butts, po^master, deposed that on the night of Mr Irvine's arrest he had been sent for by Mrs Tanner in great haste. He found heriuastae of great alarm, and at- her request, laid the information with the police. The accused cross-questioned this witness at length, with the view of showing that his arrest had been the result of preconcerted arrangement or conspiracy. Mr liar fey pointed out that to prove conspiracy, he (accused) would have to show that he ha 1 been induced by the alleged conspirators to don the disguise and make* the visit which led to his apprehension. That it was no conspiracy to take steps for the capture of a person in the actual commission of a crime. T. K. Weldon, Commissioner of Police, deposed to having given instructions which caused accused's arrest, but declined to answer his. question as to the nature of those instructions, or of the information which had led to their being given. Witness to Mr Irvine: "You asked if there was any means of letting you out, I said, no, but that you would be allowed every facility; for communicating with any of the magistrates. I don't think you either a rogue or a vagabond, except in the spirit of the act under which you are charged. - You wished to make some explanations, I said you ha i better say nothing tome about it. You wished to be taken before Mr M'Culloch privately. It is the duty of a policeman, in plain clothes or otherwise, to draw upon a man or woman, if he thinks it nee Bsary, in the execution of his duty. You-- character; as far as I know, had nothing wrong with it until this affair. . Mr M'Culloch, R.M, in. reply to accused, deposed: You wrote me a \ note on Wednesday last, asking me to take bail. I was at Mr Tanner's the night you were arrested. Mr Butts was also there. We were talking. Mr Butts did not speak to the servant that I know of. I was not there at the time of your arrest. Accused : .J>xX -you join in concocting any 'plan my arrest. Witness: Concoct! certainly not. I was" not aware previous to the arrefet that the servant had made the disguise. Mr Irvine : Will you state the purport of the letter I wrote you? Witness (moving to leave the box) : I could get it in a moment. • Mr Harvey, interposing : It is quite unnecessary. Mr Irvine's aim is to show an animus oh the part of Mr M'Culloch ; bnt as he (Mr I.) ia being tried by impartial parties, any feeling which may or may not exist between Mr M'Culloch an J himself can have no bearing on the case now. Mr Irvine said that concluded his case. - Mr Harvey said he would only repeat Mr Tanner's, wish, that punishment, if awarded, should be as light as possible. -'■■"--- The Bench reserved judgment until next morning, accepting Mr Irvine's personal recognisance for £40, to appear at that time. Thursday morning. Their worships gare judgment this morning at 11 o'clock, as follows:—Mr Irvine to become bound to keep, the peace for a period of twelve months ; himself in the sum of £50, and two sureties ia the sum of £25 each. ..,■• /- , : „/''.. "Z. ''' \, t j.. -'-^