December 17, 1893.|
whether my friend Mr. Bratton was prosecut ing on behalf of the United State Government or not. I would like to ask the court if Mr. Brutton is appearing for the United States Government.
Mr. Goodnow-Is it your object to object to him in any way ?
Mr. Melbourne Well, it is, your honour. Mr. Goodnow-Well, the objection cannot be considered at this time.
Mr. Melbourne-I do not wish to object to Mr. Bratton appearing on behalf of the United States Government, but I would like to find ont before I open.,
CHINA OVERLAND TRADE REPORT.
505
Mr. Brutton, in replying for the prosecution, first dealt with Mr. Melbourne's objection to the indictment in that it said that the oconr- rence took place at Wuchow." He said Mr. Melbourne failed to read to out the note at the bottom of the indictment, and which was signed by the Consular Clerk (Mr. A, de Silva). in which note the following words occurred-
upon the information filed in this Consulate of which the above is a copy". He said the in- formation filed in that court and signed by the brother of the deceased compradore did not con- tain the words "at Wuchow."
as the vessel was going into a disturbed district the log b ok, but the portage book and the the captain stipulated that there should be no ship's articles, to be brought into court, deli- anchoring. The ship, however, anchored about | vered to it, and made exhibits in the eight o'clock, and this was done under the dir ection of the compradore or anybody else. At any rute Captain Toulmin knew nothing about it-he said there should be no anchoring. With regard to the shooting, they had no direct evidence as to who had the revolver at the time of the occurrence. Mr. Woods said one or two shots came from the direction of Captain Toulmin. Mr. Randell said he saw shots and heard reports. When the first shot was fired these three men were quite close to the scuttle hatch, which was open. There was no evidence from any witness called by the prose cution that the scuttle hatch was closed. There. were 200 troops on board and some Y-men run- ners. Some 172 rifles had been collected from Mr. Goodnow-Mr. Bratton is appearing for them. Mr. Woods and Mr. Randall said re- & prosecutor. There may be other prosecutors.ports came from where Captain Toulmin was in the case besides the United States Govern- standing, but those-shots might have been fired from the scuttle hatch. After dealing further with this point Mr. Melbourne conteuded that it was absolutely impossible for the ball which struck Me. Woods to hit the compradore,
Mr. Brutton interjected some observation, and
Mr. Goodnow Mr. Brutton is not appearing for the United States Government.
Mr. Melbourne-In that case I contend that .Mr. Brutton has to address your honour and the honourable associ (tes before I do.
ment.
'Mr. Melbourne-If Mr. Brutton is appear. ing here as prosecutor he is appearing either on behalf of the Chinese Government or on behalf of the relatives of the deceased man, and in that case I contend I have the right and not Mr. Brutton to reply that Mr Bratton has to address your honour and the bonourable u-80- ciates before I do. It would make a consider. able difference if Mr. Brutton appeared on behalf of the United States,
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Mr Goodnow-I do not see any point in that, Mr. Melbourne.
Mr. Melbourne said. very well and remarked that Mr. Haines was present and if the court would like to recall him on any point he was at the service of the court and Mr. Bration.
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Mr. Goodnow--That is your client, is it not? Mr. Brutton sad it was. Continuing, he said the indictment contained a second count in which there was no mention of Wuchow. Fur- thermore it was not necessary in a charge of murder to state where the murder occurred. Mr. Melbourne · bad practically stated what were four defences. The first was as to Wuchow, the second justification, the third accidental death, and the fourth that the shots which caused death came from the scuttle hatch. Could they in any way in their own mind imu-- gine that all these things could have hap pened. Mr. Melbourne had put it to them that if ane did not happen the other did. He submit tell that Mr. Melbourne should have confined
Ap-
Mr. Goodnow said - Mr Bratton, you must not interrupt counsel or you will be committed for coutempt of court. You will be protected when you proceed with your address.
Mr. Melbourne, continuing, said that the pro-himself to one of these defences and attempted secution to prove their case would have to make to prove that. However, he had put before out that Captain Toulmin had a revolver on the them these three defences und said that one of forecastle head and that he fired the shot these things might have happened. The ques- which killed the compradore. Just supposetion was not what might have ba, paned but for one moment, said he, that Captain Toul what did happen. That was what they had to min had a revolver, and that there were two try in that court. He proposed to deal with No wish was expressed to recall Mr. nines shots fired from it. The revolver would the evidence for the prosecution and the evid- and Mr. Melbourne rose to deliver his address. have five or six chambers, so there would ence for the defence, and treat them together He was, however, interrupted by Mr. Goodnow, still be at least three still charged, and it was and leave the court to say which of these two who asked if the log-book and the other papers only reasonable to suppose that if he had had a stories they believed. It was a question of asked for by Mr. Melbourne had arrived. Mr. revolver he would have taken it on deck after credibility between the witnesses for the pro- Brutton said he had telegraphed for them but the occurrence to protect himself instead of the secation and he defendant hims If. they had not yet arrived, and it was decided rifle which Mr. Woods and Mr. Randall said he parently insinuations had been made in that that if they arrived during the day they should had in his baud. They had bad evidence that court bis by learned friend, but one of the most be put in if required. Subs. quen ly Mr. Brut-the crew were mutinous, and this being the case serious was that the prosecution had combined ton announced that the log book had arrived
together for the purpose of bringing a charge and was at the Consulate.
of murder--the most serious charge which could be brought against any man-in order to get a man convicted of murder. He put it to them that that was absolutely and utterly ridiculous. They had seen the appear. ance of the witnesses in the box and he took it that a witness's appearance in the box was one of the truest tests and the best text of credibility or otherwise. Mr. Brutton then proceeded to deal with the evidence at sume length, arguing that the case for the pro- seation had not been shaken in any material porticular.
Mr. Brutton -The information I made oat does not say “at Wuchow."
Mr. Melbourne asked for the original indict- ment, and on this being produced it was seen that the words "at Wuchow" appeared.
Mr. Brutton-I am not proseonting_on behalf of the American Government. You
· brought that out. I am prosecuting—
Mr. Goodnow-Let Mr. Melbourne go on with his address without any interruption.
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if Captain Toulmin had shot the compradore the natural thing for him to do would have Mr. Melbourns then addressed the court for been to admit it. He would have said, "Yes. I the defence. He said the indictment said shot that man," and that he deserved shooting Captain Toulmia did feloniously, wilfully, because the crew were matinous. But Captain and of málice aforethought" kill the deceased. Toulmin d nied having had the revolver at It was the part of the prosecution to prove tonight—thongh he admitted having had one in their entire satisfaction that Captain Toulmiu the morning he having taken off his clothes did kill Cheng Lei San on the 7th of July at and put on his pyjamas. Mr. Melbourne showed Wuchow.
that in accordance with American law the coin- pradore was one of the crew and that the pilot had no right to anchor without the cap- fain's orders. He argued as Captain Toulmia's orders as to anchoring were disobeyed the crew were guilty of mutiny. He called attention Mr. Goodnow said the fact that two nation- to the fact that the captain said that the alities were concermed in a case like that had compradore had his sleeves rolled up, and said been the subject of great thought on the part this would be the first act of an assault, of the court. By the treaty between the and was evidence of mutiny. The prosecution United States and the empire of China, wished them to believe that the compradore was | if 8 Chinaman committed
oriine shot by a revolver and by Captain Toulmin, but against મ citizen of the United States there was no revolver produced before them, he was charged by the Chinese authorities ac- and there was no bullet produced, and cous.... cording to their code and law in their courts, quently for what they knew the man might the American authorities simply watching the have been killed by a rifle bullet. In conclusion.
case The crime must be determined according Mr. Melbourne pointed out that the indictment to the Chicese code and the punishment in- said the occurrence took place 'at Wuchow," flicted according to the Chinaman's code. If but there was no evidence to prove that this an American committed a crime against a took place at Wachow. If they were of opinion Chinaman then the obverse took place--he that Captain Toulmin really shot the compradore. could only be tried before an American Consul. he submitted they must acquit him because he according to the code of the United States, and was justified in doing so because of mutinous the punishment inflicted must be according to condnet. If they were of opinion that the | the crime as given by the United States. In compradore had a revolver and that the revolver order to ensure equity and impartiality in their went off by accident in the squal·ble with Cap-code it was laid down that a consul should give tain Toulmin then they must acquit him. If the decision in the case, but that other minds they believed Captain Toulmin's statement that and other judgements might be brought to one, two or perhaps three shots came from the co-operate or differ from him it was provided in scuttle hatch they must acquit him. He left it a capital case that four reputable American with them, and asked them to acqnit Captain citizens, drawn by lot from a list approved by Toulmin on the charge upon which he had been the minister, should sit with him and should brought before them.
either agree or differ from his judgment, and should note on his judgement their reasons for agreeing or differing from him when the Conanl should rouder the decision. In this case the Government had thought it of so much im- pportance, and were so desirous that ju
justice should be done, that when it was found that the minister of the United States was unable to come down from Pekin and sit there he (the
Mr. Melbourne said there was one more point. He ought to have been informed and had a list of all the witnesses the prosecution were going to call, but the only witnes es whose zuames he saw at the back of the indictment were Mr. Woods, Mr Toulmin, and Mr. Campkin. The other witnesses had been sprung upon him. He thought it wa admitted that this was the third trip made by Captain Toulain in the Losing. He made these three trips only to oblige Captain Sherman.
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the second trip Н man called Frame accompanied him, and his evidence was that all the time the crew were mutinous or disobedient to Captain Toulmin's orders-- that on one occasion Captain Toulmin gave the order to anchor; that he also gave the order to proceed at three o'clock in the afternoon, but that the crew weighed the anchor at 1a.m. Mr. Melbourne repeated the story of the defence. UR to what took place at Wuchow to prove the disobedient character of the orew. After men stioning the captain's quarrel with his boy, le pointed out that the captain was disobeyed in regard to the coming on board of the troops, whom he wished to tow in junks. He added that if the captain had been under the influence of drink he would never have thought of collecting the arms from the troops or of making a note dof the arms so collected in a note-book. Then
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At this point the log book was produced. It was identified by Captain. Toulmiù, who, how- ever, said that a loose sheet or foolscap which be placed in the book, and which contained an account of the occurrences of July 7th. was missing. On the application of Mr. Melbourne, who said he had made the application before, the court ordered the production not only of
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