DISTRICT COURT, WESTPORT.

Westport Times, Volume V, Issue 854, 26 August 1871, Page 2

DISTRICT COURT, WESTPORT.

Thursday, August 24. (Before Mr Justice Ward.) Regina v. Alexander Berne. The charge against the prisoner was that, on July 31, he did assault and wilfully obstruct John Temperley, bailiff, while endeavouring to execute a warrant of arrest against Peter Kerr at Addison's Flat. The prisoner, who pleaded not guilty, conducted his own defence. The Crown Prosecutor briefly opened the case, stating that the case was one of the most serious character, and that the evidence he should produce would fully establish the indictment. John Temperley, constable of police was sworn, and detailed the circumstauces in connection with the alleged assault, his evidence for the most part being a repetition of that given a few weeks back in another court, and the particulars of which will be familiar to our readers. He described the interference when Kerr rushed out as follows: —At last Kerr made a rush to get out of the door. Kerr rushed to the door. Berne got between me and Kerr. He pushed up against me, and tried to prevent me from getting out of the door after Kerr. lat last got out of the door, and overtook Kerr. Kerr fell, and I fell over him. When I got up again I found one Patrick Byrne hud got hold of Kerr. I then took held of Kerr by the collar. Prisoner Berne then came up, and said, " Give yourself up to the law." He also said something about assisting me. He again said in an under tone to Kerr, "hook it; now is your chance." Kerr broke from my hold, and rushed upon Patrick Byrne. The two struggled. I attempted to arrest Kerr a third time. The prisoner again urged Kerr to " hook it." As soon as I attempted to arrest Kerr again I was rushed by a man named Hart. Patrick Byrne, storekeeper, Addison's, who accompanied the bailiff for the purpose of arresting the prisoner, gave the following version of the alleged assault and interference. He stated that Kerr when the bailiff went to him was furthest from the door ; Berne, the prisoner, occupying at that time a position with his back to the bar, between the bailiff and Kerr. Witness heard the prisoner say " hook it," and Kerr then ran out. The bailiff was the first out after Kerr and witness followed. The prisoner was the next up after Kerr had been arrested, and said that he would assist to give him up to the law. They recrossed the street to Gallagher's store, and Hart commenced to abuse the prisoner for having acted as bailiff. Witness was attacked by Kerr and by Hart. Temperley came to his assistance, and was also knocked down by Hart. Witness then got up and left.

The witness was closely examined by the prisoner with respect to the alleged jostling when Kerr ran out of the store. In reply, he stated that the bailiff was first out of the store, and that he saw no jostling. The bar was very small, there was a crowd of men all moving, witness among them, and the passage to the door was very narrow. Believed the prisoner said to Temperley, after Kerr had been caught, " leave him to me, I will engage that he will go with you quietly." Heard the prisoner tell Kerr, at the outset, that the warrant was right and to give himself up. Prisoner told Kerr to " hook it" before he was arrested but not afterwards.

This was the evidence for the prosecution.

His Honour asked the prisoner if it was bis intention to call any evidence. If not, he could address the jury and the Crown Prosecutor would have no right to reply. If he called witnesses it gave t'i • Crown Prosecutor the right of reply. ' The prisoner called as witnesses, Timothy Gallagher and If i.rjj Taggart, who proved that tiit re * -no obstacle offered by the prisoner to the bailiff. On the contrary he was the only man who had offered the bailiff any assistance when it was required, he having had his beard torn out by Hart while protecting the bailiff from the assault of Hart.

The prisoner then addressed the jury, stating that the evidence upon which so serious a. charge had been brought was of the most puerile char, acter. He had been charged with assaulting the bailiff, and the latter

had utterly failed to prove that the slightest attempt at an assault had been offered. The substance of the, bailiff's evidence was that he had obstructed him in his pursuit after Kerr; and he should ask the jury to attach no weight to his testimony in the face of the direct fact that, though furthest from the door, the bailiff was first out in pursuit of Kerr; of the fact that Byrne, also a witness for the Crown, stated that he saw no jostling; and of the evidence of his own two witnesses. He should call their attention to the grossly exaggerated iuformation which the bailiff had laid before the Eesident Magistrate—an information so utterly at variance with the facts that it had to be amended by the Eesident Magistrate. No portion of his evidence had been corroborated. He had heard what none other had heard, and seen matters that had been seen by nobody eJse. The facts were that Kerr had previously spoken" to him with respect to the warrant of arrest, asking whether it was operative for longer than a week without renewal, and also whether he could be arrested by an officer unless the latter had the warrant in his possession. He informed Kerr that he believed it was necessary for the arresting officer to hold the warrant. It was in consequence of Kerr being half tipsy and a knowledge that he would avail himself of the slightest pretext to resist the bailiff violently that he (prisoner) demanded the bailiff's authority. After Kerr was arrested hi? gave the bailiff every assistance, in fact, to such an extent that one of his own mates, Hart, assailed him most violently for his active interference in the bailiff's behalf. He should leave the matter with every confidence in the hands of the jury. The Crown Prosecutor replied, calling attention to the quiet, straighforward manner in which the bailiff had given his evidence ; and urged that it was worthy of the utmost credibility. His Honour, in summing up, stated thatthe offence with which the prisoner was charged was a very serious one; the penalty being imprisonment for a term not exceeding two years with or without hard labour. There could benoquestion of the necessity of protecting officers of the peace in the execution of their duty, but it must be first shown that an officer had been interfered with and that the interference had been wilful. There was only one point for the jury to consider—whether w hen Kerr ran out the prisoner did wilfully obstruct and jostle the bailiff. The matter of demanding the bailiff's authority (although it was no business of the prisoner to do so) did not constitute an interference. Neither did his using the expression " hook it," assuming that he did so. At the same time his inciting Kerr to get away would justify the jury to approach the investigation of the prisoner's later conduct in the matter with some suspicion. The jury had the evidence of the bailiff on the one. hand and that of witness Byrne, and the two witnesses for the defence on the other; and in the event of their having any reasonable doubt it was their duty to give the accused the benefit of such doubt. He might add that the evidence of all parties was not inconsistent. It could be readily understood that, if a couple of men rushed out from among a crowd through a narrow passage, there would be some jostling. It was possible that the bailiff in his anxiety to catch the prisoner did run violently against the accused, and in his excitement he may have regarded the obstruction as wilful on the prisoner's part. The Question was, however, for the jury; they must first decide whether there was any obstruction offered; and they must then decide that it was wilfully offered before they could arrive at a verdict against the prisoner. His Honour then read the evidence of the various witnesses, and added that the prisoner's conduct in respect to assisting the bailiff when assailed by Hart had been most praiseworthy. It could, however, in no way influence the jury in arriving at their verdict, although it would become a very important consideration with the Court in passing sentence. The jury retired for a few minutes, and on returning to their seats gave a verdict of "Not G-uilty," and the prisoner was discharged.