SUPREME COURT.—WESTLAND DISTRICT.

West Coast Times, Issue 259, 23 July 1866, Page 2

SUPREME COURT.— WESTLAND DISTRICT.

CRIMINAL SITTINGS.

(Before His Honor Mr Justice Gkesson.) Saturday, July 21. The Court was re-opened at 10 o'clock this morning. Mr Duncan prosecuting on behalf of the Crown. LARCENY. John Henry Brinker was charged with having, on the fifth day of March, 1866, feloniously- stolen and carried away one bug and money, thft property of one David Kiugham. The prisoner plerded Not Guilty, and was defended by Mr O'Loughlin. The following jury were sworn i — John Meehan (foreman), John Chefiings, John Davidson, Henry Mace, Joseph Anderson, William Thomas Walker, John Hackctt, James Gray, Robert Cole, Ulrick Mader, Andrew Gumming, and Peter Gunn. The Crown Prosecutor said .the indictment against the prisoner was one of larceny of a bag and money. lie stated the case, and called David Kingham, who said he was a butcher, ' generally residing at Black's station. He remembered on or about tho sth March last ; he was in No Town on that day ; the prisoner was in his company; he was in witness' employment. Witness had some money on his person in a small bag. There were two bundles of Ll nofes, and also five L 5 notes ; one of the bundles contained thirty -one notes ; there were three bundles altogether. From No Town witness went to the Twelve-Mile. Just as witness was starting he placed the money in a small bag, which he put in his pocket. Prisoner was standing alongside of witness. He believes it was his left-hand trousers pocket lie put it (the bag) into. He is quite sure he put it in his pocket. He stayed that night at M'Lennon's store, at the Arahoura. Witness cannot say whether he had it there or not. He went to bed and took his trousers off. 110 gave them to the prisoner to dry them ; they were very wet. Witness next saw his trousers in the morning early. He had taken the bag with the money in it from his trousers beforo giving them to the prisoner, and had put the bag under his pillow. Next morning he examined the bag, and found some of the money was missing. One bundle of Ll notes, and the small bundle of L 5 notes. Ho then made a search for the money, but could not find it. Witness found the fTag in the morning, where he had placed it the night before. M'Lennon and another man, but not the prisoner, were present when witness made the search. Prisoner was outside the store. Witness called the prisoner in, and asked him if he had seen any notci or money in the bed. He said he had not. Witness then asked him if he had any money on his Derson. lie said he had. Witness asked him to shew it to him ; and after some hesitation he did so. There were four La notes and some Ll notes. Witness then asked him where he had got it. lie made no answer, and then witness told him it was his. He said it was not. Witness told him he would have to go to the Twelve Mile. Witness asked prisoner if he knew how much money- ho had there. He said-he-hatL-J.iJG.r ll*i-kh«m-a«kad-pri-soner if he might count it. Prisoner said, 363. Witness did count it and there were only L 34. Prisoner then said he was sure there were L 36. M'Lennon • was present. He counted it again, and found it contained only L 34. He told prisoner that there was a L 5 noto short, and asked him if he he had. Witness asked him if it was a new or old note. He said it was a new note. Witness said it was not ; that it was an old note with piece torn off. or else turned" down at, its coraers. Prisoner made no answer. M'Lennon, the prisoner, and witness went^ to the Warden s Court at the Twelve Mile. The prisoner was examined and so were the notes, and witness gave him in charge. From what witness had heard he went to Wilson's Hotel, and a&ked them if the prisoner had been there. He asked Mr Wilson to show him his L 5 notes. Witness pointed out one of the notes, which he identified. (Note produced and identified.) Witness believedit to be the one he got from Wilson. He recognised the note on the counter among five or six notes, because it was a very old note, and one of the corners was turned down. He had given five single notes f'.r it to a digger just before. He cannot identify the other notes. The amount witness lost was from L 37 to L4O. He cannot say when he lost it. It must have been before 8 o'clock on Monday morning at No Town, and the time he missed it at 6 o'clock on Tuesday morning. Prisoner had entered witness' employment two days before he had missed the money. Prisoner came to witness and told him he was hard up, and asked him if he would give him a job. Witness told him he would if he would undertake to drive and kill sheep. He said he had been used to that, and witness engaged him at L 3 per week. Witu»ss hid examined four of the L 5 notes before he lost them. lie put the numbers of them down in his book. He believed the leaf produced to be the leaf on which he put the numbers of the notes. The numbers of the notes were A 12564, 9285, 1170, and 12582. He put the numbers down before he left No Town. By his Honor — I knew the numbers of the notes, but not the banks they were on. I state this to qualify my previous st.itement that I could not identify the notes. Examination resumed — These are the three L 5 notes ; the other does not cor-es-pond with the number taken down. They are the same figures, but not the- same order. Witness gave the L-5 notes and the Ll notes to M'Lennon to take charge of. Witness could not identify the Ll notes. (Bag produced.) Witness found the bag under his pillow. By Mr O'Loughliu — The bag was not stolen. It was about nine o'clock in the morning when I left No Town to go to the Arahoura. I engaged prisoner to go to Noble's. When I arrived at the Twelve Mile I went to Price's Hotel (the Albion.) I stayed there from half an hour to an hour. I recollect when I was at Price's the prisoner asked me if he might go to Wilson's to look for a person. He left me, and afterwards returned Ido not recollect, whilst he wa3 away, whether I stayed at Price's. He was away about half an hour. It was between twelve and two o'clock when ho came back. We then started for the Arahoura. I stopped at some house on the way. It was at Red Jack's, at the ferry. It was dark when we arrived at the Arahoura. I could not 9ay how many there Tyere in the small

bundle of Ll notes. The large bundle was at the bottom. The two small bundles were at the top, but I cannot say which was uppermost. (Bag produced.) This is the bag. It was not tie.J. I recollect the 4th of March. The prisoner was working for me on that day He did not, to my knowledge, buy any stores or pay any bills for me on that day. I went to bed at the Ardhoura about ten o'clock, and got up at daylight. I got my trousers in the morning. When I dressed myself, I found the bag under my head. It was not the prisoner who told me that he had changed the L 5 note at Wilson's. He told me that he had spent a L 5 note, but did not tell me where. I never, to my knowledge, accounted to any one as to how I lost the notes. I never, to my knowledge, said I had lost them in the water-closet. I recollect saying I had arranged the notes there. I believe it was in the water-closet that I took the numbers. Thi3 notes might have fallen out of 'the bag. Mr M'Lennon was not partner with me in the money. It was my own.

Alexander M'Lennon sworn— said he was a butcher on the Grey, but had a place of business on the Arahoura. It was there on sth March. He knew Mr Khtgham. Witness saw prisoner on sth Match in his (witness') store. Kingham and prisoner slept on a shake down in his store. lie saw them the next morning. Kingham and witness were going to settle up, but when Kingham got his bag he missed some money. Prisoner waa outbide the door at thi* time. Kingham searched to see if it had dropped in the blankets, but could not find the money. He (Kingham) then went to the door and called the prisoner in. He asked him if he had any money, and after some hesitation he said he had. Kingham then asked to look at it, as he had lost some. Prisoner did so. .It was rolled up in an old miner's ri»;ht. Kingham turned two or three of the note 3 over, a,nd then said to the prosec Jtor that it was his money. At the same time he rolled them up and placed them on the counter. Witness then went outside, and returned in about ten minutes. Kinyham said witness would have to go the Twelve Mile with him and prisoner. This was said in prisoner's | vesence. Kingham asked witness to take the money to the police.- and"at the same time asked prisoner how niuch there was. ,To the best of witness' remembrance he sdid there was L3B. When counted there was only L 34. Witness took tho money down to the Twelve Mile, and gave it to the police. He did not examine the notes particularly. He saw they were bank notes, They were L 5 and Ll notes. He could not tell what bank they were on.

By Mr O'Loughlin— -On the sth March there were two constables within a quarter of a mile of the spot, but there was no st.ition there then. I know this merely by report. There were two men and I slept in the same room as Kingham and the prisoner. The, other men did not leave in the morning. They remained two or three days. They hid left the room and were outside when Kingham missed his money. Kingham had also gone out. One of "the men was a mate of mine in the store. The other was a miner. William John Graham deposed— that he was a constable, stationed at the Twelve HiLe~--A-UeHi* tliu OtU Mauli the prisoner was given into his charge by Inspector Strange. He searched prisoner and got from a purse, half a sovereign, half a crown, and a sixpence ; also, a pistol. . No one was present when witness searched prisoner. On the same day Inspector Strange handed me fourteen Ll notes and five L 5 notes (notes produced and identified). Witness saw a note book produced in the Warden's Court by Kinghara. It was in witness' possession along with the notes. lie cut two leaves out of the pocket-book on which the numbers of the notes sveie written. (Leaves produced.) These are they. By Mr O'Loughlin— There is a police station at the Arahoura. It was there when the prisoner was brought to us. Mr O'Loughlin said that he presumed that the jury would have no difficulty in coming to a conclusion to acquit tho prisoner. If they had any doubt they must use it in prisoner's favor, and in this case they must have grave doubts. The learned' counsel then reviewed the evidence, pointing out that the notes had not been identified, and that therefore the case must fall to the ground. He dwelt particularly upon the fact of the prisoner's having bei;n taken to the Twelve Mile, when there was a police station on the spot. lie said the jury could, under the circumstances, come to no other conclusion than to acquit the prisoner. Charles Manders, deposed — that he resided in No Town about the 4th of March, 1866. He knew the prosecutor, Mr Kingham, and the prisoner. He recollected on the 4th March, seeing money in the possession of prisoner. He had a roll of notes, from eight to twelve of them, but could not tell the amount. They were bank notes. Witness saw prisoner change one. It was a Ll not. Witness saw Kingham on the morning of the sth March. Witness then returned some money to him — L'2l. He spoke to witness on the Bth, at the Twelve Mile, about how he lost the money. He said he was not sure whether he lost it in the water-closet or not.

Cross-examined by the Crown Prosetor — I paid Kingham L2l. There were one LlO note, two L 5 notes, and a sovereign. I have had no conversation with the prisoner about the case since he has been arres'ed. lam quite sure I have not tola him personally that I could prove what I said to-day. I have said it in the same cell. The water-closet I refer to is at No Town ; so Mr Kingliam told me. I do not know which water-closet was meant.

Alexander Constantine deposed — that he was a publican at the Grey. He recollected the 3rd or 4th of March, at which time he saw the prisoner. The prisoner stopped at witness' house two or three days about that time. There waa a timber merchant there. Witness was building at the time and the timber merchant sent some rafters. Witness sent down to him to know why ho had sent them He offered to exchange them and a dispute arose. Prisoner offered to lend witness some LSO or L6O He afterwards paid witness some 1/2 18. He had a roll of notes in hi 3 hand at time. He (witness) could not say how many. By the Crown Prosecutor — I cannot tell what month this was in. I cannot tell whether it was in January, February, March, or April. Lite-examined by Mr O'Loughlin — It was after I bought the house. Ido not know when I bought it.

The Crown Prosecutor replied, saying that he took a very different view of the cade to his learned friend. He thought a very clear case hud boon made out by the Crown. If, as the prisoner, through his counsel, wished the jury to believe, the money was lost in the water-closet, it was afterwards traced to the prisoner. Supposing the prisoner had found the money, and did not endeavor td find the owner, still he was guilty of larceny. He pointed out to the jury the evidence for the prosecution, which went to prove that the prisoner was the man who stole the money. All the notes found in the prisoner's possession were identified, with the exception df one ; and it was remarkable that the oniy way in which the number of this note disagreed with the number on the book ■was, that one figure was placed before the other. The number on the note being 12852, and that put down in the prosecutor's pocket-book was 12582. The learned gentleman remarked as to the hesitation of the prisoner when asked to show his money. Here was the evidence that the L 5 note missed by -the prdsecutdr wis found by him, at Wilson's. The jury would have no difficulty in the case. His Honor in summing up the evidence, said that the prisoner was indicted for larceny. It was not necessary that, in order to convict tlie prisoner, it should be proved that he stole both, the" bag and money. If they believed he had been guilty of stealing only a single coin of the realm, or note, they must convict him. The case was most suspicious. His Honor placed beforethem the most material parts of the evidence, and explained to them thelawas tojthe finding of properly. He left it to' them to say whether the notes were sufficiently well identified. He said that if he were a juryman, he would hesitate as to the identity of the notes. It was, however, for them to decide as to the guilt of the prisoner.

The jury, after an absence of about three minutea, returned a verdict of Guilty.

His Honor told the prisoner that he had been found guilty of larceny, after a patient hearing, and an able defence on the part of his counsel. lie would therefore sentence him to be imprisoned for 12 calendar months, with hard labor; Towards the close of the case, the Bishop of Chriptchurch entered thj Court, and occupied a seat by his Honor. v ASSAULT WITH INTENT.

Patrick Downes was charged with having on the 23rd day of March, 1866, feloniously assaulted one Joseph Brandon. Mr Button defended the prisoner.

The following jury were empanelled :—: — Joseph Auderson (foreman), William Glynn, John Dixon, Cornelius John Payne, Thomas Cowlishaw, Andrew Cumming, John Robert Hudson, Solomon Michael Solomon, Hugh Cassidy, Roberj Cole, Peter Gunn, Thomas Betts.

William Melody was challenged by the Crown.

The Crown Prosecutor; said that the indictment was laid under the Statute Geo. 14 and 15, Vie. c 19, sec. 4. He shdrtly stated the particulars of the case, and called

Sergeant James M'Ginniss, who deposed — that he was sergeant of police stationed at Okarita. He remembered the 23 rd March last. Witness was then stationed at Kanieri. From information he received, hp went to the house of Arthur Curneck. He (witness) knew the prosecutor, Brandon. He was there. Dr. Anderson was dressing a wound on the head when he reached there. He went in search of the prisoner Patrick Downes, and found him between his own tent and Curneck's house. Witness told him he must accompany him to Curneck's house. .He took him to Braudon, and asked him if he was the man who assaulted him. Brandon said he believed he was. Witness then arrested prisoner, and cautioned him in the usual way, when he admitted that he had assaulted Brandon, but did not say how. On taking him to the lock-up, he again asked the charge. Witness told him he was charged with assaulting Brandon with a stick. He said it was with his fist he did it. Witness locked him up, and then went to the prisoner's hut. Prior to arresting him, he found in prisoner's hut a stick, with what witness considered spots of blood on it. Witness took possession of it. When he returned a second time to the hut, he found another stick with blood on it. He examined the stick, and found human hair on it. (Sticks produced.) Prisoner, when arrested, was under the influence of drink, if not drunk.

Cross-examined by Mr Button— The prisoner complained to me or having been assaulted by the prosecutor, He said they had a fight. Next morning, he asked me to look at his mouth. I looked at it. He appeared to have had a blow in the mouth. There was blood about the lips. I did not notice if any of his teeth were gone. Joseph Brandon deposed — that he remembered the 23rd March last. He was then living at Woodstock with the prisoner. They were not mates then, but had been from New Year's Day up to the 21st. On the evening of the 23rd March, a quarrel took place between them. Downes came home and challenged witness to fight. Witness did not wish to have anything to say to him, so he walked away from him. Prisoner followed witness from one place to another, and said that if he did not fight be (witness) was no man and a coward. Witness believes they fought three rounds. They decided ou settling it in the morning. The prisoner said, "Brandon, you have lived in my house since you and I have been mates together, buf, by God ! if ever you sleep there again it will be worse for you.'' Witness said he had no inclination to sleep there, and asked prisoner if he would give him permission to take his things away. Prisoner said, " Take them away, but never come in any more." Prisoner and witness went into the tet-t together. He (prisoner) sat down on his stretcher, and witness took his bed-clothes and threw them out of the door. lie then tied up a few flannels and things, and threw them out after the bed-clothes. There a few little things under his pillow that he was tying up in a handkerchief, and while doing so, he received one blow at the back of the head, and witness became unconscious, and did not recollect anything afterwards. There was a man sitting at the foot of Downes' bed at the time. At that time he went by the name of George, but witness believed his name to be John Eck. The prisoner was^ there also. He went into the tent with witness. Witness does not know with what he was struck. To the best of his belief, it was twenty minutes or half an hour after he fought with prisoner that he was struck. He was sensible for a few minutes at intervals after he received the blow. He felt very little of the blow until he got up from bis bed ; then he felt the diziineu.

By the Bench — I was confined to my bed for four or five weeks.

Examination resumed — Witness' head •fras cut. He was in good health iip to the time. His health has suffered. He durst not bend his neck. Prisoner was neither sober rior drunk; but under the influence of drink. , , , . . B"y Mr Button— l do not know the cause dfthe r|uarrei between me and prisoner. I never made any statement as to the cause of the quarrel. I told somebody that the cause was the prisoner getting drunk and lo.sing so much time. A publican named Curneck was present both' before and at thte fight. I believe, jt was between twenty' minutes and half an hour after we had left off fighting that the blow was struck. When we left off the .prisoner sat on a stump. He then went into the tent with me. I made a statement before the magistrate. I did not state everything, for I did not know everything. Ido not recollect everything now ; I only remember one blow. John Eck sworn, said — that he remembered about the 23rd March last, and was at Woodstoqk on that day. He knew the prisoner's tent, which was close ! by his. Witness was there about sundown. .The prisoner and Joseph Brandon were in. Brandon asked the prisoner's leave to come in for some purpose of another. "Witness wa9 cooking some meat for himself. While Brandon was getting his bedding witness heard two or three blows struck. Witness was sitting with his back towards them both and looking to the fire. When witness heard the blow he did nothing but turn round and look at them both. When he looked round Brandon was standing upright with a slight smile on his face. Prisoner was standing with, something in his hand which he could hardly see ; but so far as he could see it was a stick. Witness then took up his' frying-pan and left. Before he went out he noticed the prisoner. He was standing so that his hands and arms covered what he held. He was not doing anything then ; the blows had been given. Witness returned to the tent in about a minute after he left it. When he returned one of the men was lying on the floor and the other was striking him three dr four .blows, from the hips over to the ribs. The one who sat down on the bed after striking the other was the prisoner. Witnesss remained in the tent about a minute after that, and theu went oat. He saw more blows struck. The blows were struck with a piece of stick about two feet long (Sticks produced.) like the shorter of these. I think there was one or two blows about the hips, on 6 about the waist, and one or two about the ribs. Witness did not see any blows struck higher up the body. The prosecutor did not make any resistance when struck. He was lying on the ground. They were not what witness calls severe blows. He thought the man lying down was " gammoning" to be dead. He had lain there for half-a-minute wHea witness left. He left him lying on the ffdor. About five minutes afterwards some one carried the prosecutor out. He was then in a very bad state. There was blood flowing from the back of his head. He was insensible. Witness was then sure that something was wrong. Witness'heard two or three blows, and saw two or three others.

Cross-examined by Mr Button — I heard two- or three blows Btruofc^ — -When I turned round I saw the prosecutor standing in his natural position, with a slight smile. He said to the prisoner, " I did not think this of you." I never said that prosecutor had said, " Well, Joe, I did not think this of you.'' I do not think he used the word "Joe." Ido not recollect ever saying so in the Magistrate's Court. I could not tell which was up or which was down when I went into the tent. I could not believe my eyes. It was dusk : not quite dark — twilight. It came to be so dark that I could not tell which was which, except by the voice. It had got as dark as that when I went out with the frying-pan. It was darker in the tent than outside. It had got a little darker from the time I left with the pan to when I returned. The man did not appear to be hiding the stick. He appeared to be just done striking. Prosecutor was standing in his usual manner, with his hands down by his side. There was no table in the tent, between U3. I could see the prosecutor standing opposite to me, half turned. It was his left side I saw. His right side was turned towards the wall. I could not see his right hand, on account of the manner in which he was standing. I could not see if he had anything in his right hand. I thought he was gammoning to be'dead, for it is a common thing to do so when people are fighting. I thought he and the prisoner were fighting. Some of the blows struck against the frame of the tent. The blows on the ribß and hips were not hard blows. I thought the prisoner would be the worst off, for I thought the prosecutor would rise up and pitch into him again. I thought they had been fighting in the tent. Arther Curneck deposed, that he was a publican, residing at Woodstock. He remembered the 23rd.Mare1i last. He was near the prisoner's tent that night between 5 and 6 o'clock. Witness did not look into the tent, but he c )uld have done so if he had looked in that direction. Witness saw the prisoner and Brandon there. Witness saw them fight several rounds. They stopped, and the prisoner sat down on the ground for a few minutes, and he and Brandon had a few words with one another, and the prisoner ordered Brandon's things out of the tent. Witness saw the prisoner and Brandon go into the tent. He (witness) stopped where he was, at another tent about twenty or thirty yards away. Witness saw no more of them until he heard a noise in the tent, and he and Steve Atkins went up and looked into the tent and saw Joseph Brandon lying on the floor of the tent. The .prisoner and John Eck were in the tent. The prisoner was sitting on his stretcher. Witness caught hold of Brandon and pulled him outside. He was lying senseless, and gurgling in the throat, as if he was choking. When they got him up they put him in a sitting position, with a bed against his back. After he was there a few minutes, witness took him down to his (witness') own place. He then went across the river, and enquired for Dr Anderson. Prisoner never said a word when they took Brandon out. Witness saw no stick in the tent. When we took Brandon out he was bleeding from the back of the head.

Cross-examined by. Mr Button —It was not more than ten minutes or a quarter of an hour from the time we saw them fighting to when we heard the word. It might have been more or it might have been less. I might have told the Magistrate fire or ten minutes. I stayed in the tent I was at till we heard the row re-commence. I

do not remember what I told the Magistrate, t went up to the tfeflt because 1 thdught they having a row inside: Dr Anderson deposed — that he was a legally-qualified medicai practitioner, residing at the Kanieri. He remembered the 23rd March. On the evening of that day, about eight or nine o'clock, he wa9 called out by some one to go to a man named Brandon. Witness went to ah hotel kepi by a man named Curneck, where Brandon was. Brandon was partly sensible -and partly insensible. Witness examined the wound, and found that the whole of the back of the head was cut. The blood had plotted j and he had to ,cut the hair oft it, There was a supposed fracture of the right jaw. When Brandon became sensible he imagined that this difficulty in swallowing was caused by the number of teeth he had swallowed, and which he supposed were sticking in his throat. There was no other bruise. Witness did not examine his person. Witness attended him some four or five weeks. The blow O n the head would cause partial paralysis and inc°oni*. petency to work. lie would never get over it as long as he lived. Brandon was then suffering from partial paralysis. The blows might have been produced by a blunt instrument. Either of the sticks produced would cause them. Witness examined one of the sticks that evening, and found no blood and hair on it.

By Mr Button— Any blow from a blunt instrument would have done it. It could not have been caused if he had fallen violently down. I have read Taylor's medical evidence. . The technical definition of a wound is " a solution of continuity." The simple definition is a "smash." It was a contused and lacerated wound in medical phraae. A contused wound is where -a man gets a black eye. The wound on the back of the head might have been caused by a fall. The permanent injury is at the side of the bead, tt might have been caused by a blow but not by a fall. I examined the prisoner's, mouth. (Tooth produced.) From the fracture and the tooth I believe it to have come out of the prisoner's mouth.. Mr Button rose and addressed the jury behalf of the poisoner. * He said that the present case was one iii which the prisoner was charged with an aggravated assault: Now one of the principal ingredients iii such a case was malice, for the words of the statute were " unlawfully and maliciously,'' and unless the charge of malice was fully made out he contended that the prisoner must be acquitted of the major offence, namely, the charge of aggravated assault, although the jury might bring him in guilty of a common assault. They must be certain that tie prisoner must have been actuated by a malicious desire to do the prosecutor grievous bodily harm, and without this was proved he must be acquitted. He could not illustrate the meaning aud application of the term malice better than by"showing them the difference between manslaughter and murder. In the one case, the act was done without malice, and in the other .the pri* ■soner was charged with committing the act v with malice aforethought, express or implied,'' so that the only difference between the two offences , was, that in the one case he acted without any malicious feeling, and in the other the prisoner was actuated by wilful malice ; and this rule applied in the prisoner's case. Let them look at all' the circumstances of the case. First, they found that .the prisoner and the prosecutor had' been fighting. Now he presumed that if the prisoner had struck the blow whilst fighting this would do away with the presumption of malice, ' and they would be bound to acquit the prisoner of the more serious offence ; for as in the case of a man who without any desire or intention to kill another gave him an unlucky blow sufficient to cause death, in that case he who struck the blow, not having acted maliciously, would be guilty of manslaughter only, and net of murder, and the same principle applied there. They would see that the blow was struck immediately after the fight ; in fact, it vi as part of the same quarrel. Let them look at the evidence of Brandon and Curneck. would lead them to believe that after the quarrel had ended, the prisoner, in a most cowardly and brutal manner, had 'struck him to the ground. " He says it was about twenty minutes- or half an hour after, but he cannot • recollect anything else. But Curneck's account was different. Ho says that the affair occurred immediately after the fight ,- in fact, he v thought that they were still quarrelling, \ and ne waited near, so that he might have the pleasure of seeing, another fight. The learned gentleman then spoke . as to the question of malice. The Crown Prosecutor regretted to interrupt his learned friend, but he must differ with him as to his application of the term malice. He quoted from Archbold's Criminal Practice in support of his view. * Mr Button resumed his address, and said that the words of the statute were " unlawfully and maliciously." The law would i infer malice from certnin facts; but it would be for them to . say how far those facts would bear out the inference of- malice. Malice in law was of two kinds—constructive malice, and expressive malice. If they considered the act was done under circumstances which would do away with the inference of malice, then they must acquit the prisoner. They must take into consideration every circumstance of the case. They must consider the length of time that had transpired since the fighting, and say whether or not it was part of the same row. They might feel certain that more had transpired than Brandon had told them there to-day. Whether Brandon wilfully kept back facts, the knowledge of which would be likely to benefit the prisoner ; or whether, as he says, he had no recollection of what had happened, it would be for them to say. He would put it to them whether Brandon had told them of sufficient circumstances to fill up a space of twenty minutes. He did not think so. In Curneck's evidence, he says the time was five or ten minutes. The witness Eck says he believes they were fighting in the tent. And surely this man, who was cooking in the place, could not be- mistaken. It would be a most remarkable thing, indeed, for a witness in the very same house with two men, not to know whether they were fighting or not. What about the other blows mentioned by Eck ? How are we to make the prosecutor's" statement as to one blow, agree with the statement of Eck? What about the smiling? Would this not lead one to imagine that the prosecutor (Brandon) had gained some advantage over the prisoner ? He would ask the jury, as reasonable men, whether they did not believe the men were still fighting - when the blow was struck. Especially after hearing the evidence of an intelligent

witness like Eck, who was cooking in the tent at the time. They would see that there must be either concealment or deficiency of memory tin the part of the profiecutor, for he , says that the first blow struck him t6 the ground. In {his he is contradicted by his own witnesses. There ■were blows struck which the prisoner could not account for. He would ask them if it was not strange that the prisoner should pave had two sticks ; would not one have bern sufficient ? Where is the necessity for two sticks ! How could hair be oh one stick and blood on the other without two persons were using them. With due deference to the opinion of Dr Anderson he maintained, and no doubt the jury would bear him out .in. his opinion, that the injuries could have been caused by falling against the framework of the tentj. Suppose a man fell with his head on the angle caused by the junction of the upright and the floor, would not that have caused a wound like the one at the side of the prosecutor's head? They must also recollect the fact of the broken tooth. The evidence of the constable and Dr Anderson was strongly against Brandon. They would remember that the morning after the prisoner was arrested the constable examined his lips and observed blood upon $hem, and Dr Andei son further examined the month of the prisoner, and swears that the tooth fits the fracture in his jaw, and he believes it to have been knocked out. Was not this strong evidence that the violence of the prosecutor was commensurate with that of the prisoner. It was the province of the jury to discover whether the wounds were caused by a fall or a blow. He believed that upon careful consideration they would come to the conclusion that the offence did not bear such a malicious aspect as the learned Crown Prosecutor had sought to put upon it. They would have to consider, Ist, whether the malicious motive the Crown Prosecutor had attempted to prove was fully borne out by the facts.

2nd, Whether the blow was caused by a stick or not. If not the prosecution fell to the ground j and the prisoner must be acquitted. No witnesses were called for the defence. His Honor then proceeded to place the case before the jury. After addressing

them as to the nature of the charge he said it was only necessary to ensure the priB*oh< rs conviction for the Crown to prove that the wounds were inflicted in a malicious manner, and that they were such as

were likely to cause grievous bodily harm.

The wounds need not be permanent or dangerous. He need not tell them that in the present case the wounds were such as to inflict bodily harm for they had the evidence of Dr Anderson, who said that they were both permanent and dangeious ; a fortiori, they would cause grievous bodily harm. He pointed out to them that the intent was to be inferred from the

act, and left it for them to come to their own conclusion as to the prisoner's guilt. Every rude or violent blow, even a touch in an angry manner, was sufficient to constitute an assault. The single question for them to consider was whether the prisoner had any lawful excuse for what he had done, and whether the blow was struck by the* prisoner necessarily in selfdefence. His, Honor read over the cvi-

dence to the jury, pointing out the salient points of the case, and said that with the few observations he had made he would leave the case in their hands.

The jury retired, and after a short absence brought in a verdict of Guilty. Prisoner made a statement to the effect that th« prosecutor had insulted and struck him. He said it was a fair fight, and denied using the stick. He hoped his Honor would take into consideration the fact of his having been already in prison for four months. His Honor, in sentencing the prisoner, remarked upon the brutality of the assault, and said that the prisoner had been the agressor. He could not allow such a piece of brutality to be passed over. He, however, would take into consideration the length of time the prisoner had been detained in gaol, and would sentence him to six caleudar months' imprisonment with hard labor : the sentence to be computed from the 16th July instan 4 . The Court then adjourned till ten o'clock this morning.