ALLEGED MALICIOUS PROSECUTION.

Wairarapa Daily Times, Volume XVI, Issue 4987, 28 March 1895, Page 3

ALLEGED MALICIOUS PROSECUTION.

£ls DAMAGES AGAINST AH LOP.

The caso in which H. H. Welch and others sought to recover £2OO damages from tho Chinaman, Al, Lop, for alleged malicious prosecution, was continued in the District Court, before Mr District Judge Martin, after wo went to press yesterday. Corroborativo evidenco was given by M. Wilton, who stated that Ah Lop noyor left the shop while he was there. Was a farmer at the Rangitnmau, and was not in any want. Thomas Wrigley also corroborated the evidence of the former witnesses; said he nevor took the money, and did not see any reason for their being charged with taking it. John King ,ilso gavo evidence, stating that he never took the money, and had not any idea where the till was kept. Tho Chinamen never left the shop while he was there. Henry Greathead gave evidence of a similar nature to that given by him at the previous hearing in the S.AI. Court, Ah Lop had told McCorkcndale that he had not got a £1 noto when giving change for the cheque; also remarking he was rather short of change. The plaintiffs in the present action were not present at this time.

David McCorkendalo, laddlor, de; [ posed that on the night in question |he went into the shop with GreatI head and Reynolds, to purchase some fruit, Presented a cheque for £llos to the Chinaman in payment for some fruit he had purchased, receiving the change in silver. Remarked that be did not want so much silver, whereupon the Chinaman gave him a half-sovereign, saying that he could not give him a pound note as he did not have one. After this he and his mates left, but soon returned, when he found the plaintiffs in the shop. The Chinaman (lid not on this occasion, leave the shop.

Alfred Peat, blacksmith and boardinghouse-keeper, stated that one of the plaintiffs in the present action had been living at his house for three years, always paying his way, and on the morning after the row at the Chinaman's he went at dinnertime that day to sec about it, as be had been told that morning in the blacksmith's shop, that some young men had stolen somo money from Ah Lop's shop, and some of his boarders were mixed up in the affair. Ho naturally out of curiosity went to see the Chinaman about it, ivhon he was told that acts of latrikinism had taken place in the shop on the previous Saturday evening, but that nothing had been taken with the exception of a few bananas, That evening witness told Emniott, iu the presence of others, what the Chinaman had told him.

This was the case for the plaintiffs.

Mr Bunny said that on the face of the evidence he would ask His Honor not to put the case to the Jury at all. His Honor ruled that the case must go to the Jury, J'or the defence Mr Bunny called, defendant Ab Lop, who recapitulated in the main, the evidence given during the hearing of the charge against the plaintiffs in the lower Court. Tho witness stated that on the eveningin question, McCorkendale and Greathead came and purchased bananas and watermelon and afterwards the other five came in. Ho changed a cheque for McCorkendale, but did not give him any pound note. He had taken several pound notes that day. He had taken the last about six o'clock, a note on the Bank of New South Wales. He had put the note in the drawer, When the plaintiffs refused to leave ho went to the kitchen to get a stick to drive them out. They caused his wife to weep and his child to weep, After they left the shop he missed the twine eaunister and a knife, and when he looked in the till the pound note was gone, He did not know if any silver had been taken. He did not count it. Everyone in the shop could see the drawer where he put his money. No one else came into the shop who could have taken the money. After witness had been to the police Emmett came to him and wanted witness to take his name out of the charge. Emmett said that Mr Peat would come at dinner-time and see witness. Mr Peat came and spoke of the event of the Saturday night, and that he had lost a pound which on Emmett's account he would see paid up, and get the charge withdrawn. Witness said that he could not do anything unless the Sergeant was agreeable, and asked Peat to see the Sergeant. Mr _ Peat said lie would come back again in the evening. Witness never said to Peat there was no robbery. Cross-examined by Mr Pownall, Ah Lop said ho could not say how much silver was in the cash drawer. He refused to give McCorkendale the pound because the note was easier to bank. He did not sty to Constable May that he had been robbed when he went for him after the men left. He believed that one of tho fivo men had taken the pound, but could not say which of them. There was more than 15s in the drawer when he cashed the cheque. He' felt no spite against tho men when he told Peat that he would put them away. Peat said that he would square up if the plaintiffs were not brought, to Court. Sergeant McArdle and Edmund Holmes gave unimportant evidence. Constable May gavo an account of what passed between himself and Ah Lop on the night when he was called by the Chinaman, who then made no mention of any theft, only that the men were in tho shop and would not leave.

Counsel then addressed the jury on the issues submitted by His Honor which were ;

(1). DidthedofendanthonestlybeHero that all the plaintiffs had stolen the note or been parties to the stealing of the note ?

(2)DidhehoMstlybclievethatonly some of tho plaintiffs had stolen the note, or been parties to the stealing of the note, and if so, who? (3). Was the defendant actuated by any indirect motive in preferring the charge ? Mr Bunuy then addressed the jury at considerable length, particularly impressing upon the jury the fact that bis client was a foreigner, 'amUbat ho had meroly a Chinaman's story against tho evidonce of tho plaintiffs and their witnesses. It was plain that there mußfc have been grounds for the charge, and if All I Lop laid the charge honestly and believing it to bo truo ho was entitled to a verdict in bis favor. Thero wa6 no motive for malico or illwill on tho part of Ah Lop, The attempt

to obtain £2OO as damages was adding furthor injury to that already dono by tho plaintiffs in trespassing on the Chinaman's premises. Mr Pownall in his address contended that although evory right was conceded to a Chinaman or any other foreigner, he was just as liable as a European if he improperly set tho machinery of the criminal law in motion, Honesty of belief in this case meant more than tho ordinary acceptance of the term, and in a caso of this naturo reasonable grounds would be required on which to base the belief. The evidence he contended, showed no reasonable grounds for honest belief, and further, it was improbable that any pound had been in the till at all. There had been no attempt at " squaring " as alleged and the charge was simply brought to heap up the case against the plaintiffs in tho prosont action.

I His Honor said before dealing , witli the main points, ho would refer to somo of tbe remarks of counsel on , both sides. He did not think the jury would allow the fact that one man was a Chinaman and the other not, to interfere in any way with their decision. Because live men swore one thing and one man another, they weco not obliged to believe the five, or even 500, and a jury would be quite justified in putting their evidence on one tide. He merely inado the remarks for their guidance, as they could believe the live or the one. Regarding outside evidence there was very little of it. Tho young men Greatbead and McCorkendalo were present on the night of tho trespass, aud at ltastone, was admittedly a friend of his niannerof giving evidence was not such as would inspire implicit confidence. There was also a serious discrepancy between the evidence of the two regarding the giving of change, one saying the Chinaman was short of change, and the other that the Chinaman started giving change at once. He would venture to suggest that the evidence was not very good. Regarding Mr Peat's evidence, if his story were true, it threw a very grave doubt on the Chinaman's story. There was no reason to believe that Mr Peat had not noted with perfect honesty. It was sometimes possible that a misunderstanding might arise, and Mr Peat might have, with perfect honesty, misunderstand the Chinaman. An extraordinary thing was that Mr Peat had not been subpoenaed for the defence in the cases before the lower Court. When a man honestly believed that a crime had been committed, he not only had a right, but a social duty, to proceed against a criminal. Tho law gave every facility for this, providing it was done honestly. If in the present action the Jury could not say that the plaintiffs had affirmatively proved their case, it would be their duty to bring in a verdict in favour of the defendant. Mowing to tbe issues, Did the Chinaman honestly believe that the men committed the theft ? If not, then the action was malicious, if there was any other theory or motive than the honest desire to punish men he believed to be criminals. It was quite a question for the jury to say whether the defendant was honestly actuated or not, Circumstances surrounding cases were different. In the present case, the jury were not trying the question of whether the plaintiffs stole tho £1 or not, and their verdict would not clear or stain tbe plaintiffs' characters in the least degree. The charge against them had been dismissed andcould not bebrouglitagain. It was a fact that young men sometimes thought they could do as they liked with a Chinaman. Ho could not speak too strongly, and could only characterise such conduct as that of cowardly roughs, In Wellington they had had a lot of this sort of thing, and it was going to be put down with a strong hand, In the present case a gang of roughs go to a Chinaman's shop and make a disturbance, as proved by the previous Court proceedings, and was the Chinaman not justified in suspecting these men of stealing the £1 note, providing it had been in the till, which was a question tho jury would havo to decide, The Chinaman in first reporting the matter to the police, had not mentioned the theft at all. It was possible that in his excitement he had forgotten to mention it. It was argued that tho story was concocted by tho Chinaman, aud it laid with the jury to decide. He did not think he could say anything to help them either one way or the other in this matter. The Chinaman appeared to have thought that it was ono of tho liye men who took the noto, and he did not know which, so charged the lot. Since, Ah Lop had admitted that he thought it was one of the three men who were inside the shop, and not the two who were outside. On the information the Chinaman must have honestly beliovcd that all were interested in taking the note, if a verdict were returned in his favor, Regarding damages the men were not arrested, but had been defended by counsel, and that was a matter to be considered. Regarding reputation the men were "a gang of roughs" and it was a question of how much was their reputation likoly to be damaged. If the jury decided that the defendaut " honestly believed" then there was practically an end of tho case. If on the contrary, then the other issues would have to be answered. It was open to say whether all were entitled '' to damages—if any—or if two or J Ithree only were eutitlod and if so how much, The jury then retired at 5 p.m., i returning at half-past with a verdict ' for the plaintiffs with damages £ls. 1 Costs aud witnesses oxpenses wore allowed.