AUCKLAND POLICE COURT.

Thames Star, Volume VII, Issue 2107, 5 October 1875, Page 3

AUCKLAND POLICE COURT.

Serious Clurgo against My. William Kirby.

■ In the Auckland Police Court yesterday before J. Oosgrave aud C. N. Marshal], Esqs., J.P.'s., William Kirby, the well-known coal and wood merchant of that city was brought up on "warrant charged with unlawfully assaulting Isabella Bain, without consent and against her will, with intent, &c, on thelstinst. Mr Hesketh appeared for the prosecution, and Mr Joy for the accused. iVir Hesketh in opening the case said that he recretted tl'at the evidence in tins case sliowed most conclusively that the attempt to commit the assault, was well established. Tho complainant and her husband had been on fi ndly terms, with defendant, and defendant liad been kindly disposed towards them, but there was not the shadow of a doubt "but tha*. the charge was correct, and had tho woman been overcome the crime would have been actually committed. Mrs Isabella Bain deposed : I am the wife of James Bain, living in Lome street, Auckland. I know Mr Kirby, have known him eleven mo-nths. The door from my room opens into a yard, where there is a water closet, it is about eight yards from the house. I occupied a back room. On Friday evening my husband returned from his work to tea, after which he left again, rbout a quarter to six o'clock; did not know what time he would return as he was going to the Whan; he said it would be late before he would be homo. He gave me a pound to get some groceries in, 1 and said i might go to my mother's if I was afraid to stay alone; I met my mother in Wakefield street and we talked together. When passing Mr- Kirby's woodyard I got change of the man in the office there, and gave my mother os and returned to my own house. I put the change in the drawer all but 7s 6d. Saw no difference in the room, it was seme as when I left. I turned found and took a kit down from a nail, intending to get the things in, was putting my shawl on when Mr Kirby came to the door and said " Good evening, Mrs Bain," and said he had seen Bain going up the street with a horse. I replied •' Yes, and I expect him back in a few minutes." The reason I said that I expected my husband in was that I was suspicious of Mr Kirby. I had niy reason for telling-him that. He said he had come up for " a chance;" He knew my husband was out, and if I would give him a chance he would make it all right with me. He said he would give me a handsome present. I said "I don't want any present from you." He said " You are a silly woman. If any one had made such an offer to my wife, she would not miss the opportunity." [Mr. Kirby manifested signs of great excitement, and said " the witness ought to leave his wife out of it. 1' He was called to keep silence.] I said I knew nothing about his wife. I had only seen her once. That was nothing to do with me. I then rushed to the door to get cut. He put his arm round my neck and prevented me from going, and put his hand across my mouth to prevent my screaming out. I said "Lord help me." He urged me to the bedside and threw me on the bed. He took the counterpane off the bed, and twisted it round my head. (Tlie evidence here is unfit for publication). I gave birth to a child on the 19th August (my first child). He tried hard to £et the better of me. My husband then camo to my relief. I don't know where he came from. I did not know that any one was in the room when Mr Kirby put me on the bed. He told me afterwards. My" husband pulled Kirby off by the back. A candle was burning on the table when Kirby entered the room. It was still alight when my husband seized Mr Kerby. My husband a>ked him what he was doing there, but M r Kirby made no answer, but wes trembling. He afterwards stuttered and. said : "Be easy, Bain, I've only called for my money" M/ husband said : " "Was it in bed with my wife that you expected' to get your money ? " Kirby said : " You can't prove it." My husband: "I can prove it; "I suspected this for. the last ten months. I will- make you sweat in the morning." Mv husband then turned ■ to the mantel-piece, and Kirby was frightened (thinking it was a pistol) and ran out of the house. My husband had no fire arms in the house. "When he got outside Kirby said to my husband: "You're a liar—.come outside, and I'll let you know." My husband did not go out, and Kirby went away. When Kirby put his knees on. me on., the bed I, made t the most noise I could. Mr' Kirby was stronger than me. I did my utmost to resist him, but could not have resisted him much lon/ger. I was unable to dress myself through the pain caused by the pressure of his fence upon; my\side; i Cross-examined by Mr Joy ; The house I live in has an upper storey, which; I pc---Jjtopied up to August last. A staircase •"'leads up to it. It is empty. My husband did not come down stairs on that occasion, but came out of the cheffonier. I did ' not know there was any one in the room until I heard the rattling of the glasses on the cheffioniere. Two tumblers were smashed,'but it was out of my power to see where my husband came from. I did -tell my husband in August last that Kirby was a stranger to me in the presence of a person named Mulcahy. I had known Kirby for eleven months, but what I meant was that I had no correspondence with him. I tried to scream out, but was prevented by his hand over my mouth. The mark of his finger is still visible. (Mr Joy desired" to see the mark, which, upon witness turning her face towards the light, was seen by everyone in Court) I 'swear; that mark was not there before that Friday evening. I told Mr Kirby I did not want his chances. He was. to go home. I resisted as much, as possible, and would have run out, but he put his arm round n>e, and ,1 could not get out. I told him that my husband 'would soon be in, because Mr Kirby had several time spoke to me^ about "a chance," and I had as 6ften told him to gOvhome where he ought to.be. He said if.'l would not gr?e him .^< a chance" h^e would go to Edwardes street. I told him to go then. The door was not fastened when he came to my house. The door was standing open. He fastened it when be came in. He locked the door with the other hand. J screamed as well PI couldf The eheffonjer ig at the foot of the bed. , My. husband did npt come out while the struggleing was going on until he found tjiat I could resist no longer. The door of the room opened inwardly. I could not scream when he got inc. on the bed

-because he twisted the counterpane around my head.

To Mr Hesketh: When Mr Kirby hinted about a "chance" on previous occasions, I always told my husband and my mother. One night I went with ray husband,to Kirby's own house, and lie wanted me to go in but I would not without my husband. v. James Bain, coal and' firewood dealer, Lome street, deposed : I bare known Mr Kirby between four And five years and i have several times worked with him. i We were always on- very good terms with I each other up to Friday last. He has j often befriended me in many thi'-gs and j many ways in business matters. On ; Friday I had -been at home the gveater ! part of the day. In the evening I left my house taking my horse with me, intending to take it to the country. Ten miutes before I took my horse out I had seen Mr Kirby at the bottom of the street talking with another man. I took my horse up the street and placed him in Mr Cook's stable. Wlien I left home I did not intend to take it there. I had my reasons for placing my horse in Cook's stables which lam prepared to state. I came back from the stables to my house. I When I got home there v» as no one in the bouse, and 3 concealed my elf in the cbeffonier. From information I had received I suspected there was something wrong with my wife Jt was my wifv I suspected. After I had concealed myself I heard some one come in, light a candle and go upstairs. I "believe it was my wife. She came down in almost five ninwtes. Mie was not quite downstairs when I heard a foot at the door. A man exclaimed ' Good evening Mrs Bain," and walked right into the room. I recognised Kirby's voice. I could not see from the cheffonier where I was hid, and had to judge from hearing. He said he saw Bain go away with the horse, and said " I've a good chance for to night! " My wife exclaimed something; witness believed it was " Oh, my God what shall I do." Kirby said he'd be if he would take any denial that night. Some one locked the door and I. heard a scuffle take place, and Mr Kirby said he would buy my wife a silk dress, a gold brooch, and rarrings. The scuffle went across the floor from the door towards the bed. I jumped out of the cheffonier. (Witness here explained the position in which he found Mb Kirby, and the state of his dress.) I pulled Kirby off. By the scuffle I could tell my wife was resisting. Having found that my wife was resisting, I came out. After that I found I had no grounds for suspecting my wife.

(The further hearing of this case was adjourned till to-day.)