MAGISTRATE'S COURT.

Temuka Leader, Issue 2723, 11 October 1894, Page 2

MAGISTRATE'S COURT.

Temuka —Tuesday, October 9, 1894,

[Before C. A. Wray, Esq., S.M.] ALLEGED ASSAULT.

Albert Franks was charged, on the information of Eli Mitchell, with unlawfully assaulting, him on the 22nd September, at the Washdyke. Mr Salmond for plaintiff, Mr Hay for defe : ', Mr Salmond briefly opened the case, and called

Eli Mitohell, the informant, a farmer, residing at Waitohi, who stated that ou the 22nd September he drove the defendant to Timaru in his trap. They left Mr Ogilvie's blacksmith's shop, Timaru, in the afternoon, defendant driving as far as Mr Owers's, where witness got out. This was about three o'clock. When witness came out of Mr Owers's he missed the trap, but found it at Messrs Miles & Oo.'s store, where witness had business. Defendant said <• Ooiue on you trap, defendant drove on quickly, not allowing witness to complete his business. Witness 6udeavored to take the reins, yh-n defendant struck him on the face. Witness continued to try and take the reins, and when near the Waahdyke defend'Hii gof: oijtj and pulled witness out, striking and kicking him when on the around. They got into the trap again. Witness was then bleeding. While ou the ground a young man named Scott said %o defendant " Don't carry on like that,'"' to which defendant said •'* I'll kill tno ." They stopped at the Washdyke Hotel, but had no drink. Thoy drove fairly amicably past Korrytowu, but jn the Opihi riverbed dcfewgaiit again assaulted him, and throw off a keg of hoop in tho riverbed, and would not allow witness to go back for it. On approaching witness's paddock thoy mot a boy looking after cows, and witness told him to go along the riverbed and he would soo .something. Defendant would not ullow tho buy to go, aud pulled tho blinkers oil" the trap. Defendant was in

liquor. Witness had only two drink* in the hotel. Was able to transact business. By Mr Hay : Was quite sober. Had only two small (glasses in the brewery besides. Would swear he had only two drinks in hotels except one at Waahdyke. Had no recollection of making a disturbance in a fruiterer's shop. There was a struggle in David Owen's shop, and some packages were pulled down. Defendant lived near witness' and they were good friends. It was not a fact that witness backed the trap on the footpath. Constable Crawford might have said if defendant did not have the reins he would give witness in charge for being incapable of taking charge of a horse. Could not swear if Franks had any drinks, except one going in. Where witness was pulled oat was somewhere between Woollcombe's Gully and Mrs Luxmoore's. Could not say if it was on a hill or in the gully. Defendant jumped out, holding the reins; witness had hold of the end of them. Witness was pulled out through keeping hold of the reins. Witness did not think he was standing up and shouting like a drunken man, and that he fell out. Defendant and witness Scott put him back in the trap. Scott was close behind when the fall took place. Scott was riding one horse and leading another. Could not say if it was a man with a trap who assisted to put him into the trap. At the Waahdyke did not complain to the landlord. Did not think he polled into the Washdyke and nearly had an accident. Called for a drink, but did not want it. . .Did not know if Gibson refused to serve him. Witness threw the keg of beer out at the Washdyke, so that Franks might not have it on the road home. Was not blind drank. Never attempted to get at a butcher's knife and cleaver which were in the cart. Had been before the Court before for offences connected with drunkenness. By Mr Salmond: Had been treated by Dr Hayes for the injuries received. Was sore about the chest, and had to hare a plaster and bandage applied. Still felt pain. William Scott, a laborer living at the Washdyke, stated that he saw complainant and defendant passing the Melville Hotel. Was driving a dray. Saw Franks driving down the Melville hill as fast as the horse could Mitchell was trying to catch the reins. At the bottom of the hill Mitchell appeared to have hold of the reins, and the horse was turning round and round, and Mitchell either feu or was knocked out. Just before Mitchell fell out Franks was hitting him about the face and chest. Complainant was struck four or five times while in the trap but not while on the ground. Witness asked Franks what was the matter, and he replied he could not get on with him at home. Advised defendant to let Mitchell go home by himself. Mitchell said he would not let the old go home; he would kill him before he got home. Mitchell got into the trap and they drove off. Mitchell's ear was bleeding. They were both jolly looking enough. He considered them both drunk. Mitchell only said " Leave that horse and cart alone; have pity on the old mare." Witness considered the mare cruelly driven. Did not think Franks was more fit to drive than Mitchell. At the foot of Waugh's hill the mare was turning round and round again, both having hold of the reins. Defendaut was holding Mitchell down and kicking him. Mitchell was in the bottom of the trap. Witness told Mitchell to leave off kicking and knocking Mitchell about. He said it was good enough for the old dog. Mitchell then jumped up and made a struggle to get hold of the reins, and caught one. The mare backed, and Mitchell fell out. Franks only saved himself from falling by catching the splash-board. A man drove up in a buggy and. helped complainant into the cart, witness holding the mare meanwhile. When witness got to the Washdyke Mitchell had a good deal of blood about him. Franks was driving all over the road cantering, trotting, and pulling up—and the mare was as warm as could be. When witness arrived at the Washdyke they were driving off. Franks jumped out and unbuckled the reins from the headstall. Witness buckled them on again. Could only imagine that either Franks was druuk and did not known what he was doing, or else that he wanted to let Mitchell go home without reins. By Mr Hay: Was driving the dray at the rate of about three miles an hour. Although the others were going a good pace they had a lot of performances to go through "something like a circus," and witness often closed on them. Franks never pulled Mitchell out. Mitchell was always trying to get the reins. Did not see them turn in to the Washdyke, but he saw them turn out. Had not been in the company of either that day. Mitchell was bleeding when witness first overtook them.

Franks did not touch Mitchell on the ground. The fall took place through Mitchell trying to get the reina. By His Worship: Aa far as witness could see Franks was unable to drive properly even when Mitchell had not hold of the reins. Franks was making the mare travel. Considered Mitchell ill-treated. Had known Mitchell for some fourteen years. He could always drive all right.

By Mr Hay: Had known Mitchell singing a jolly song sometimes as he drove.

Mr Hay sketched the outline of defence, and called

Albert Franks, the defendant, who stated that he started from Timaru in the afternoon with Mitchell, who was drank. Witness had a drink in the morning and one in the afternoon. Was perfectly sober. At Mr O wers'a heard Mitchell, who went in yelling and singing. Witness went in and Mitchell caught hold of a lot of packages. Someone suggested witness should leave him, and witness drove to Miles & Co.'s. Here Mitchell came and got into the trap. Witness drove to the Old Bank corner. Just before getting there the top of the cart fell oft'and witness went back for it and put it on. Mitchell had hold of the reins then and was pulling the mare back to the footpath. Constable Crawford came up and said if he didn't go home he would lock him up. The constable took hold of the reius and gave them to witness, who drove on. Mitchell was quiet until out of the constable's sight. When near the Melville Mitchell was trying to get the reius and witness kept pushing him off. Mitchell did not fall out at Perry'a comer, but at the last hill near the freezing works. Just thare Mitchell s«Dg out

" whoa " to the mare aud stopped her, sayiug he would go no further. Witness Started the mare again and Mitchell, who was trying to get out, fell. A man came up with a horse and trap and assisted Mitchell in. Wituoss got out also. Mitchell was bleeding thm. Had not struck him at all, but only warded him oil' with the back of his haud. At the Waahdyke Mitohell grabbed one of the reins and nearly pulled the cart over the atjlvort. At the hotel the landlord refused to serve him. Mitohell then threw the keg of beer out of the cart. Ther left the hotel all right.

In cross examination, by Mr Sajrn o nd witness insisted that he was perfectly sober aud hAd an accurate recollection p* what took place. At Owers's cipro ba<l tried to lead Mitchell fyCd iurt &

tempted to force him. Led the horse to Miles'a store to get clover seed for his brother-in-law, who had asked him to see that it was brought out. It was not supplied. It was not refused because witness was not sober. Witness drove, as Mitchell was incapable. It was the constable who gave him the reins. Mitchell did not want to go back to Owers's. It was not true the mare was galloped down the hill. Scott's evidence that witness ■truck and kicked complainant was utterly untrue. Mitchell's ears were not bleeding before he fell. It was not true that Mitchell was out of the trap twice. Scott must have imagined the first scene he so graphically described. Witness did not see Scott from thetimeheleft Melvilleuntil he reached Waßhdyke. Was quite sure Scott did not help Mitchell into the cart. Had held Mitchell down in the bottom of the cart for fear of his getting a knife. Mitchell had not been threatening him, but witness knew that he had been violent. Did not at the Washdyke take the reins off the mare. Did not throw the beer out in the Opihi riverbed. Mitchell had thrown it out twice before.

By Mr Hay : Did not hear of the loss of the beer until next day.

By his Worship : Was positive he had no. conversation with Scott from the time he left the Old Bank to the time they reached the Washdyke. Neither saw nor spoke to him. It was not true the trap turned round. The mare might have swerved from side to side.

His Worship : I should like to find these people in the other trap. Both counsel : So should I, your Worship. Robert Crawford, a constable, stationed in Timaru, gave evidence that he was on duty at the corner of Strathallan Street, Timaru, on the 22nd September. Mitchell complained that Franks would not allow him to drive home. Advised Mitchell that he was drunk and would have to lock him up. Franks then came up and asked witness not to lock him up and he would drive him home. Both then got into the trap when Mitchell attempted to take the reins out of Franks' hands. Witness walked across and assisted to take the reins out of Mitchell's hands and told Mitchell if he persisted in taking the reins he should jump up into the cart and drive him to the lock-up. Franks drove sway holding the reins in one hand and keeping Mitchell off with the other. Witness followed the trap for about 100 yards fearing Mitchell would get possession of the reins and an accident occur.

By Mr Hay: Franks was perfectly sober. If a witness swore Franks was as drouk as Mitchell he should Bay he was telling an untruth. Could see no sign of drink npon him. By His Worship : Was quite confident Franks was sober.

Joseph Gibson, hotelkeeper, Washdyke gave evidence as to Franks and Mitchell driving up to the hotel. Mitchell called for drinks, but would not supply him as he was drunk. Mitchell asked witness to put a new spike in a keg as it was leaking. He'then attempted to throw the keg out. Franks was perfectly sober. Would have supplied him if he asked, but he did not. They were there about five minutes. Would swear Franks was never out of the cart while the trap was in sight of the front of the hotel. On the road Mitchell pulled the reins and nearly capsized the trap in the ditch. Scott came up just as the others reached the road. He left the team in front of the hotel and ran round the corner crying after them.

By Mr Salmond : There was nothing to have prevented the reins being taken off out of witness's sight. Scott never made' any remarks to witness about any occurrence.

By His Worship : Could see them coming for about three chains at a fair pace. Mitchell made no complaint, but called for a drink for himself. There was blood on his face and hat.

His Worship said the weight of evidence appeared to be against Franks as to the assault. It was not a question of sobriety at all. Unless Scott's evidence was to be totally disbelieved, a serious assault had been committed.

Mr Hay suggested that .the case stand over for a time to admit of the evidence of the person who assisted Mitchell into the trap being obtained, and Mr Salmond offering no objection His Worship agreed to this course. WANDERING CATTLE. Henry Lynch was charged with allowing three cows to wander at large. Defendant denied owning the cattle. Constable Egan gave evidence as to seeing the cows on the road. A boy came out of a paddock and said they were his lather's.

His Worship asked if it was not possible the cattle were just turned out of a paddock. Witness said complaints had been made by the ranger that cattle were allowed on the roads, and that when he attempted to impound them a boy would come up and claim to have charge of them. Henry Lynch said his cows were grazing in his paddock near the saleyards. He told the boy to drive the cows home, and three of them got through the fence.

Some little further evidence was given, defendant stating that he never allowed his catl le to wander on the roads. His Worship cautioned defendant to be more careful and dismissed the case. CIVIL CASE. D. Taylor v. J. B. Kirk—Claim £3 7a 9d. Judgment for plaintiff for/ amount claimed and costs. W. Cross v. E. Pilbrow—Claim £2 ss, for labor.

In this case, plaintiff, instructed by G. Hart, who was working for defendant, ploughed, grubbed, and harrowed an acre of land, charging at the rate of 15s a day. Defendant paid 30s into court, and disputed the charge on the ground that it was excessive.

His Worship said that in default of a bargain having been made he must give judgment for plaintiff for amount claimed and costs.