RESIDENT MAGISTRATE COURT.

Westport Times, Volume IV, Issue 714, 22 September 1870, Page 2

RESIDENT MAGISTRATE COURT.

"Wednesday, September 21. (Before J. Giles, Esq., E. M.) ASSAULT. Eugene Joseph O'Conor (cordial manufacturer, and a member of the Nelson Provincial Counc 1) was charged, under the 39th section of the Offences Against the Person Act, with assaulting Thornhill Cooper (agent in Westport for the Union Bank of Australia). The Court sat at 2 p.m. The Clerk read the charge, and asked the defendant to answer. The defendant: I object to it. I intended to bave taken proceedings, and it is impossible for me to get witnesses at so short a notice. I objected to it when I received the summons. Mr Pitt, who appeared for the complainant : I am prepared to admit the summons has been short. The notice to the defendant has been short in what may prove to be a very serious matter; but the complainant is not desirous of taking any advantage of the defendant by asking for the return of the summons in so short a time. The reason for asking for the return of the summons in so short a time is the fact that Mr Cooper is to leave Weßtporb

this evening, and I considered it desirable that, at least, the complaint bj Mr Cooper should be heard, and I am quite prepared to enable the defendant, if he can, to relieve himself from the charge before the Court. I am agreeable to consent to any adjournment after the complainant's evidence is taken. It is more an advantage to the defendant than otherwise if this be done, as he will have opportunity for preparing his defence if he has any to offer.

The Magistrate: Of course it waß only on these grounds that I allowed the summons to be returned so soon, leaving the question of an application for adjournment to bs considered. The Clerk said there was another charge against the defendant. He read it—a charge by Eobert Pollock (a boy in the service of the Union Bank) against the defendant for assault. He read also a counter charge of assault by Eugene Joseph O'Conor against Thornhill Cooper. The Magistrate: It is usual, Mr O'Conor, for the defendant to stand up when an information is being read. The Clerk put the usual question as to the defendant's answer to the charge. The defendant: I object to either case being heard. It will be unfair to hear the case now. I wish to criminate Mr Cooper in both cases. I wish to obtain professional -advice, and to procure witnesses. I think I have something to complain of. The police have directed him to take these proceedings to my prejudice. The Magistrate : I have nothing to do with that. I daresay the police will be ready to answer for themselves. I do not see that it is doing you any injustice to take the evidence of the informant. You will have an opportunity of cross-examining him, and you can obtain an adjournment for any reasonable time.

The defendant: I have not had time to get legal counsel. I have not had time to instruct anyone. The Magistrate: At what time was the summons served? You had as good an opportunity as others have had.

The defendant: It was past one o'clock when I received the summons.

The Magistrate: It was before one o'clock that I received your counter information.

Mr Pitt: I have explained the reasons for the shortness of time, and, as to the want of professional assistance, I presume your Worship will not take notice of that. Unfortunately, the professional men of Westport are not so excessively busy as to require time to act upon instructions.

The Magistrate: I do not consider that is at all a ground for adjournment. There has been sufficient opportunity for procuring professional services I shall go on with the case, and receive the evidence of the prosecutor. The defendant can then have an adjournment. The defendant: Then, sir, if you have determined to take the case in this manner, it would be no injustice to adjourn the case to a later hour in the day. I must protest against the hearing of a case at so short a notice. It is unfair to me. Mr Pitt: Do I understand that the defendant will go into the case completely ? Mr Cooper has to leave at six o'clock.

The Magistrate: "Will four o'clock suit you, Mr O'Conor ? Tou mean then to go on with the whole case ? Tou have your choice between hearing the prosecutor's evidence now or obtaining an adjournment.

The defendant said he wanted an adjournment, and the Court was adjourned until four o'clock. The Court resumed at four o'clock, when the complainant in the first case (Mr Cooper), Alexander Simpson, clerk in the TJnion Bank, and Eobert Pollock, the message-hoy, gave evidence In the case against Thorn hill Cooper, E. J. O'Conor gave his own evidence in support of the charge,and he called as witnesses Henri Pain, Daniel Dowd, and Charles Albert Jones.

The evidence was too lengthy to be reported in this number of the limes. Briefly, the facts were these :—A cask standing behind a gate in a fence between the Union Bank backyard and O'Conor's premises was removed. The gate was fixed by the Bank message boy, but the fixing gave way. The gate fell, and a lot of bottles belonging to O'Conor fell and were broken. O'Conor threatened the Bank representatives with a claim for damages, and was pooh. poohed. The message boy was first instructed to take the broken bott'es in a bag to the beach, but subsequently he was told to toss them over the fence. He did so, first looking to see that no one was in the way of being injured. O'Conor heard the noise of the bottles falling, and threw bottles back. Two of them struck the b( y, and o?ie inflicted a wound upon his nead, from which blood flowed over his face. The agent, Mr Cooper, seeing the boy wounded and bleeding, and seeing also O'Conor with bottles in hishandon theother sideof the fence, said—" You confounded scoundrel; do you know what you have done ? Tou have broken the boy's head, and he is all over of blood." O'Conor said that if bottles were thrown on his ground, he would throw them back. Cooper, seeing the boy bleeding, had, he said, some difficulty in restraining himself from striking O'Conor, but, jumping over the fence, he seized O'Conor by the breast and pushed him off. O'Conor's statement was that Cooper throttled him. There-

upon O'Conor struck Cooper on his bare head with a bottle which he held in his hand, stunning Cooper for some seconds, cutting his head, and causing blood to flow. Cooper threatened to shoot O'Conor if he repeated the same form of attack, and called to the clerk to bring his revolver or the police. Sergeant Kiely was sent for, and came. Cooper recommended O'Conor to settle with the boy who had been injured, but O'Conor said—" Settle be b d ;" he would stand the law.

The Magistrate, in giving judgment, said that, with respect to the assault on the boy, he had no moral doubt that the injury was done by a bottle thrown by O'Conor, notwithstanding the turn O'Conor endeavored to give the matter by suggesting that the injury was caused by a bottle thrown by the boy himself. It was true that, according to law, where proper care was not taken to prevent the occurrence of possible injury, an assault was held to be committed ; but there were not grounds in this case for a conviction for assault upon the boy. It might not be right or proper to throw back bottles in the way described, but, under circumstances of provocation, it might not be an unnatural action. The case must be dismissed. So it was with the charge' against Mr Cooper. He could not be convicted of an assault if he interfered by force to prevent bottles being thrown, as they had been thrown, to the injury of a person under his protection, such as the boy who had been hurt. The other charge was the most serious—not because Mr Cooper was more seriously injured than the boy, but because there was no doubt that the blow was struck intentionally. All the circumstances had to be taken into consideration. H there had not been provocation—if a blow with a bottle had been inflicted upon the bare head of a man, without provocation—he should not be dealing with the case as he was. It would be a case which he would require to send to another Court. In this case, not only had there been some previous dispute, but Cooper had laid hands on O'Conor, and every allowance had to be made for excitement on both sides. But the assault made by O'Conor was an assault of a description which might lead to most serious consequences. A blow so struck with a bottle might very easily have been so serious that death might ensue. The man might have been killed. It was his (the Magistrate's) duty to carry out the law so as to secure individuals and the public against such breaches of the peace as might lead to serious consequences. When he had to deal with an assault committed with such an instrument as a bottle—an instrument the use of which might lead to manslaughter or murder —he must consider it as a serious case of common assault. Had it been the fist which had been used, he would have thought little of it, but the use of such an instrument as a bottle on the unprotected head of a man must be looked on very differently. On this charge the defendant (O'Conor) was convicted, and was fined £5, with costs.

O'Conor : Am I allowed to appeal against the decision ? The Magistrate: I am not called upon to answer any questions of that sort.

O'Conor : I will give notice then that I will appeal. The Magistrate: It is not necessary to give notice in the matter now. Tou can take whatever course you may think proper. The Court was then adjourned.