RESIDENT MAGISTRATE COURT.

Westport Times, Volume III, Issue 548, 28 August 1869, Page 2

RESIDENT MAGISTRATE COURT.

(Beforo J. Giles Esq., E. M.) Thursday, August 26. Charles Ostorland was charged with having been drunk and with having been convicted of the same offence four times within six months.—Sern-t. Kiely said: Ho only got out of gaol at eleven o'clock yesterday, your Worship. Pie promisod to go to work, but, instead of that, he got drunk again.—The Magistrate : Tou will have to go back again to gaol; that is all. Por the present offence you will be fined 20s or be imprisoned for 2-i hours, and, on account of the former convictions, seven days extra, with hard labor. ASSAULT. John Mudie was charged with assaulting John Read. Both were waiters in the Post Office Hotel. They had had a quarrel on "Wednesday morning, and the prisoner went out for several hours. After ho returned he was engaged " putting away " some silver, and talking to himself about something." Suddenly ho rushed towards Read, and, drawing a sheath - knife out of its sheath, said, "I'll fix you." Read drew back and " sung out," and on Mr Gilmer coming into the room, tho prisoner " sprung out at tho side door and went into the yard." Tho prisoner's statement was that he and Read had had a "friendly quarrel," and as they could not agree, he mado up his mind to sail for Dunedin by the schooner Mary Van Every. He purchased a sheath-knife for use on tho voyage, but never raised it to Read with any evil design. The Magistrate said he would take the most lenient view of the charge. He would not presume that he intended to do any mischief. _ Otherwise it would be a most serious matter. At the same time a person who, without such meaning, chose to alarm another in the way he had done, could not have his offence altogether overlooked. The prisoner was ordered to pay a fine of 40s or undergo a week's imprisonment, and enter into his own recognisances for £25 to keep the peace for a period of three months.

Friday, August 27. uncitil case.—saxiya t. slaffdee. Georgo Chesswas was charged -with assaulting John Rogers Fraser. Mr Tyler appeared for the complainant, and Mr Pitt for the defendant. Mr Tyler stated that the assault complained of was the defendant's spitting in the face of the complainant, and holding his fist towards him in a threatening attitude. With regard to the defence, to which he (Mr Tyler) would have no opportunity of replying, he assumed that it would be sought to be proved that it was justifiable; but no assault was justifiable except in self-defence, or in actual personal defence of one's family or property ; and, presuming that the complainant had made use of expressions, or assisted in spreading reports, aggravating to the defendant, the Magistrate would certainly not deal at this

time with the question whether these were justified or not. He quoted the clauses of the Act relating to the finding of sureties to keep ;the peace, and held that the circumstances in this case—where an offensive act had been committed and was likely to be repeated—warranted the finding of such sureties by the defendant. John Bogers Fraser : lam a schoolmaster residing in Westport. The defendant is a draper, also residing in Westport. At halfpast twelve on Tuesday, I saw him at the Post Office. I was in conversation with Mr Humphrey when the defendant crossed Gladstone street and interrupted our conversation. He said "Do you call that an apology which appeared in the paper to-day ?" I replied " I have nothing to say for" or against." The defendant then said " Take that," and, filling his mouth with spittle, he spat on the left side of my cheek. I took out my handkerchief, and said "That is not pleasant." He again said " Take that," and spat on the other cheek. Onco more he said " Take that," and spat again. Ho then said " That is not enough for you," and shook iiis fist against my nose, making use of some expression to the effect that he would " smash " me, or something of that sort. I then turned round to walk away, remarking that it was "too close to be pleasant." He then threatened to serve me the same before the children of the school. He then went away uttering threats. I cannot call the words to mind. It was either that he would " pummel" me or "smash" me, or something of the sort. Mr Humphrey was present. When opposite Mr Tyler's offlco I afterwards saw him, coming briskly towards me from Mr Southern's. I stopped at Fleming and Murray's corner, to speak to a person, and, when he got to Whyte and Pine's, he seemed toobserve me, and came about three steps towards me. I walked away. Again, in the evening, when coming from Mr Tyler's, I met the defendant. He recognised me, and just stopped, and I walked past.

By Mr Pitt : There were three spits in my face, and he touched my nose with his fist. Beyond that, ho did not strike me. I kept out of his way when he came from Mr Southern's. He did not strike me. Seeing that he was twenty yards from me he could not well do so. I understood, when he first spoke to me, that he alluded to the advertisements in the paper. There was more than one letter advertised in the paper of that morning. I presumed he referred to them. I signed the first, and wrote the manuscript of the second, and I am not ashamod of it either. The Clerk of the Court read a series of letters which had passed between the complainant and Mr Pitt, as solicitor for Mr Phillips, and which were put in by Mr Pitt. He also read the letters advertised in the Wesiport Times. He read the words :—" I am not charged with being the originator but the circulator of a slander ; and, although it is true I am sorry for circulating it, from the motives imputed, yet," &c. The Clerk appeared to assist himself in the task of reading the letter by making a slight inhalation after the word " true." Mr Eraser: Thero is no "stop" there, Sir. The Clerk: I am not your pupil, Sir. Examination continued: It was subsequent to my signing the document addressed to Mr Phillips that I wroto the letter referred to. I had received permission to write with reference to the word " originator." James Wilson Humphrey 7 : Mr Praser and I were in conversation opposite the Post Office. Mr Chcsswas crossed the street, and said to Mr Fraser " Do you think that is sufficient apology to mo for the injury you have done me," or words to that effect. He said " If you were a younger man, I would smash you, but as you are an old man I won't strike you," and he spat in Mr Eraser's faco twice or thrice. The only remark I heard Mr Fraser use was that " it was not pleasant." I saw Mr Chcsswas shake his fist in Mr Eraser's face, but ho did not strike him. Ho said he should like to do the same in the presence of his own school. I left beforo they separated. William Robertson: From the opposite side of the street I saw Mr Chcsswas spit in Mr Eraser's face, and shako his fist at him. Ho seemed very much excited. Ho came towards me, and I asked him what was the matter. Ho said I must know all about it, and that he would servo him out before it was over. Edward King Tyler : On Tuesday evening the defendant came to my house, and knocked at the door. I opened it. He asked me if I was engaged. I said " No; do you want to see mc about anything that has happened between yon and Mr Fraser !" He said " Yes." I said " Well, Mr Fraser has not more than a minute or two left mo, so that I cannot have anything to say to you about it." He hesitated a little time, and then said " I have not done with him yet. This matter must be brought to a climax." After saying good evening, or something of the kind, ho went away. By Mr Pitt: Ho did not say whether the " climax " would be an action in the Supremo Court for slander, or an assault upon him. Mr Pitt, for tho defence, admitted that, according to law, neither libel nor slander justified an assault. Words either written or spoken would not justify a man taking tho law in his own hands. But, while that was so, it was competent for tho defendant to adduce evidence in mitigation; and he contended that tho correspondence which had been read was very strong evidence in that respect. It showed that the complainant had admitted having cruelly slandered one nearly related to the defendant; that he had abjectly apologised for tho slanders; and that, after admitting that ho had been the circulator of them, he had published a letter couched in language which was simply tantamount to a repetition of the offence. Acting under this feeling, tho complainant had committed the assault. He did not deny it, and did not seek to justify it; but, if ever there was a case in which a defendant might be excused, if not justified, it was in such a case as this. As to the contingency of any further breach of the peace, he considered that the whole evidence showed that, on tho part of the defendant, such was neither contemplated nor probable. At the conclusion of Mr Pitt's remarks, (which included some warm declamation on the subject of local slanders and tho invasion of the sanctity of family life) there was some subdued applauso'(" which was, of course, immediately suppressed.") Mr Tyler, in the course of some objections to Mr Pitt's arguments, pointed out that any apology made by the complainant had been made to a third person, Mr Phillips. He stated also that tho complainant did not press for the imposition of any heavy penalty. The Magistrate said:' In this case the evidence, which is not disputed, is that the defendant has committed an assault on tho complainant by spitting in his face, repeating the act. Of course an assault of this kind is in itself one of a very provoking and aggravated kind. Nothing could be more provoking, or more calculated to lead to a breach of the peace. But for the defence there is evidence of certain provocation which, it is alleged, almost amounts to a justification or, certainly, to mitigation. The evidence that has heen put in is, in the first place, two letters which appeared as advertisements in the Westport Times, and also some written letters which had passed between Mr Pitt, aa solicitor for Mr Phillips, and the present complainant. The first letter in the newspaper is an apology directed to Mr Phillips for the circula-

tion of certain slanderous and injurious reports. There is nothing on the face of that letter to connect it with the present defendant, but, when the other letters are put in, there is enough to connect the defendant with the matter. It appears that the slanderous reports related to Mr Phillips and a daughter of the defendant. Consequently he is quite sufficiently recognisable in the matter to be considered a party to it. These letters lead up to the one in the paper. The next letter, which appears in the same paper, is one which was written after this apology, and which seems to be the provocation which led to this assault. This letter is a sort of qualification of the apology which goes before it. The writer says :—" lam not charged with being the originator but the circulator of a slander"; and I see no reason why he should not have called attention to that. He further says : —" And, although it is true lam sorry for circulating it, from the motives imputed, yet tho threat of an action mainly induced me to comply with terms demanded, rather than a sense of wrong done." It has been attempted to give a turn to these words " although it is true I am sorry for circulating it" by making it appear that the writer wished to allow a double sort of meaning—to mean that the "slander" was "true"—and that he merely apologised to avoid an action. It is just possible t'iat a person might have such a design, but I am not prepared to impute it to the complainant, I must read and punctuate the letter as it stands. It is simply an admission that he is sorry for circulating a slander. What the next sentence means I do not understand. One reading would bo that he did so from motives of malice. Then comes the point where the provocation lies. It does appear to me that the expression is tantamouuit to doing away with the whole force of the apology. It means—" I simply apologise in order to avoid an action, and from no sense of wrong." Taking into consideration the kind of thing alluded t J in tho letter —slanderous reports which concerned a young daughter of the defendant—nothing could well be more aggravating to the father of the person concerned, after expecting an apology in the paper, to seo in the same paper such an explanation as this—that the writer had no sense of wrong, but merely apologised under the threats of lawyers. I certainly think that the defendant must have felt that the whole force of the apology was taken away, and that it was simply an evasion of it. It alters the whole matter, and enables one's sympathies to go with the defendant to a great extent. It is not necessary to go further into the matter. It is a very strong mitigating circumstance indeed. With respect to the probability of this kind of thing being renewed, I do not think there is any great fear of that. At the same time there is something to be considered. The evidence differs a little. One witness says tho defendant said "he woidd do this again." Another says he said " lie would like to do it again." Then MiTyler's evidence was that he was " not done yet—that the matter must be brought to a climax." It is not clear what that might be. I cannot feel certain about that. On tho whole, I think the assault is reduced to a very small matter indeed, but the proper way for the Court to look at it is that there shall bo no renewal of anything of this kind. The defendant is fined Is for the assault, and called upon to enter into his own recognisances for £25, to keep the peace for tho next three months ; tho costs of Court to go with the verdict, the parties to pay counsel's fees themselves, and the expenses of witnesses to bo divided.