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Consul-General) as next in rank in their diplomatic service was ordered to come there and sit with the Cousul. The Court had thought it of such importance that they had allowed their time to be taken up by matters which were absolutely immaterial to the case in order that if any grain of fact material to the case could be winnowed out of the bushel of chaff they need not miss that grain. A point had been made as to the form of the indiotment, which contained the words-“at Wuchow," but Wuchow was not only a town but a prefecture. and this occurrence took place in the prefecture of Wuchow; but he held that the point was not material If it was proved that murder or manslaughter was committed by an American on the body of Cheng Tei San a small detail like that in the indictment could not have any effect. It was provided by the statutes of the United States that any person who committed murder upon the high seas or upon any river should suffer death. That was qualified by a law possed in 1897 which provided th t in certain cases where a person was found guilty of the crime of murder the jury might make a recommendation, and in such a case a person would be sentenced to imprisonment for life. In other words there were two crimes. Killing came under two heads in the statute-murder and manslaughter, and the essential difference between the two was that murder was "unlaw- fully, wilfully, and maliciously," and mauslangh-
THE HONGKONG WEEKLY PRESS AND
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[December 17, 1698.
pay his own witnesses' fees, and it was the order | The boat was immediately thereafter anobored, of the court that unless the counsel for the pro-Toulmin ap, arently consenting thereto. It is seentor paid into that court, or satisfied that agreed that Toulmin did not eat anything court that the witnesses for the prosecution and during the day and evening of July 7th, saying other costs were paid a copy of that order that he feared poison. During the day and be- should be sent to the British Consul and that fore leaving Wuchow he had had two or three the Viceroy be notified of such failure on the drinks of whisky. He took another while part of the prosecutor and his counsel to pay Randall and Woods were eating dinner. Toul. these fees and should be asked to force such min says that he took two or three drinks of payment. It was the order of the court that whisky after that. Randall says that Toul until the expenses were paid Messrs. Mounsey min took several (three or four) d
drinks o of and Bruttou should not act iu any United States whisky between the dinner time and the Courts in China.
time of anchoring, and three or four drinks between the time the boat was anchored and the shooting. Woods says that he took three or four drinks after dinner, and that Toulmin took at least two ar manny hat
Mr. Brutton-I wish to make a few remarks, your honour, on the quoted section 71 of the code.
Mr. Goodnow-: do not know that I care to hear any remarks.
Mr. Bruttou-I am entitled to argue the matter before you.
Mr Goodnow-No argument is possible on the matter. The court will hear no further arga. ment on the matter.
Mr. Brutton-Then I shall have to take further steps to bring it before the court. If your honour declines to hear me someone else will.
The court then adjourned to be convened on notice for judgment.
THE JUDGMENT.
At the United States Consulate, Canton, on the 13th Dec. judgment was delivered in the Dosing shooting case as follows:-
ter unlawfully and wilfully," but without malice. Malice as used here was not malice as used in ordinary conversation or as ordinarily | understood, when it bad the meaning of rancour On July 4th, 1898, the steamer Dosing, sail: Malice in law was "without sufficient provoca- tng under the American flag, left Hongkong for tion." The rule of law was that a man should | Wachow with Richard Toulmin, an American be taken to intend that which he did. Drun-citizen, as master, and a Chinese crew. There kenness was no excuse. The question to be decided was practically, did this prisoner kill Cheng Lei San ? Upon that point the evidence of the witnesses had got to be carefully weighed. If two men testified against a third man, contradicted him, and they were all three of equal credibility of course the testimony of the two must outweigh the testimony of the one. There was oue other matter he and Mr. Williams wished to bring up before they adjourned. and that was in regard to the incident which happened there on Saturday he thought it was. Under Rule 71 of the Regulations of Consular Courts any complainant, informant, or prosecu- tor might be required to give security for all costs of the prosecution, including those of the accused, and every complainant and so forth not a citizen of the United States should be so re- quired unless in the consul's opinion justice would be better promoted otherwise, and if such security was refused prosecution should abate. In this particular case it was the duty of the United States to, prosecute the man accused of this shooting. One Cheng Kam Cheun, the brother of the deceased, chose to
into that court as
He informant and prosecutor.
came into that court as represented by Messrs Moun sey and Brutton, represented by Mr. Brut- ton. He could state of his own knowledge that when he was there in September he bim- self told Mr. Brutton he would have to look out for his witnesses' fees, and no objection was made to it. The only question was as to whe ther they would bring Mr. Randall across from Manila or not, and he said that under agree. ment with the counsel his depositions could be taken there and expeuses saved. Mr. Williams told him subsequent to the time he notified Mr. Brutton as to these witnesses' fees that Mr. Brutton told him if he said he must do it it should be done.
come
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Mr. Williams-That was the fact. Mr. Goodnow, coutinuing, said there had besu no objection on the part of the prosecutor to this until Friday or Saturday. He himself spoke to Mr. Brutton on the matter ou Satur- day at noon. It Lad been the practice in the United States Courts in China that where a plaintiff or a complainant was represented by a reputable firm of attorneys they had not required them to pay np in cash the costs before hand, but there never had been a case in his own knowledge before this where such attorney had after the trial had begun and after having had due notice long before that he was expected to do this had refused to pay. It was the order of the court that the complainant should pay the costs of the trial unless the defendant has sufficient to
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is certain that Toulmin tuok no food and con- siderable whisky during the eventful day and evening. Woods and Randall testify that they had dinner shortly after the boat started between 6 and 7 o'clock. They agree that Toulmin sat with them during dinner, but refused to eat. Toulmin says that Woods and Randall dined after the boat anchored; that he sat with them a little time and then went to his room, divested himself of his ordinary clothing, leaving his revolver in his trousers, and put on his pyjamas and returned to the deck. After
din- ner Woods slept for a time and Toulmin and Randall were together on the bridge. Cap. tain Toulmin was complaining to Mr. Randall of a general disposition on the part of the crew to disobey his orders, and Randall thought best to wake up Woods. As the three talked, Toul- min and Randall occupied the two deok obairs which were on the bridge and Woods sat some- times on the rail and sometimes on the deck floor. Toulmin called to some one of the crew was and had been apparently some trifling fric- to get another deck chair which he knew was tion between Captain Toulmin and the compra. aboard and received the answer that the com- dors, Cheng Lei Sau, a Chinese subject. Cap- pradore was sleeping in it. He became quite tain Toulmin was in charge of the Dosing tam-
excited that the owner of the boat should be porarily, and Cheng Lei San in many ways sitting on the floor while a Chinese enjoyed the seemed to feel that he was responsible only to comfort of a chair. Woods said, "Don't get T. S. Woods, who held a power of attorney excited; it's all right," and finally said that he from the nominal owner of the vessel. There would go and soe the compradore and fix the were two or three disagreements between the matter. He then went across the gangway to captain and the compradore before Wuohow the forecastle head. At this time at the fore- was reached which apparently irritated Captain castle head were the compradore in a canvas Toulmin, but were condoned by him after talk-chair about half way from the bow to ing with Woods at Wnchow. "On the morning the aft part of the forecastle head. The of July 7th, Wuchow was reached. Here there chair was with its head towards the bow was trouble between Captain Toulmin and his of the vessel and on the starboard side-two boy, resulting in a hand-to-hand encounter and Chinese sleeping nearer the bow and probably in the boy leaving the ship, and in Captain Toul the assistant compradore sleeping on the deck min getting from his cabin a revolver which he floor, between the compradore's chair and the starboard rail. The two near the bow, the pilot poiuted at the boy, but did not at that time discharge. This revolver, it is admitted that and the engineer, testify themselves and were Captain Toulmin then put in his pocket, saying seen by Randall. The presence of the assistunt to the compradore that he would shoot the next compradore rests on his own testimony, sup- who attacked him; and saying to Mr. ported by that of the engineer. Woods had Campkin. a Customs official, that if they cou- some talk with the compradore after the latter was awakened, and Toulmin hearing the voices tinued to trouble him he would do for some of them, and saying to Mr. Strom (another Cus- went across into the forecastle head and directly toms official), and slapping his pocket at the to the head of the chair, which he seized and same time, that he would be able to take care shook and said something excitedly about of himself the next time, or words to that. throwing it overboard or taking it away. effect. These various witnesses say that. at Woods put his foot on the centre of the chair, this time Captain Toulmin was quite excited, and the compradore apparently took hold of At Wnchow Mr. Woods had made arrangements the foot of the chair, both endeavouring to that the Dosing should convey about 200 Chinkeep it from being moved. This contention ese soldiers to Tung Ynen, some 25 or 40 miles lasted only a moment. The compradore was at above Wuchow. Captain Tonlmin objected, the foot of the chair, near the starboard rail, and made conditions, but was over persuaded, about two or three feet from Woods, who stood and the Dosing, between 4.30 and 5 p.m., on ou his left further towards the port side of the vessel, and within two of three feet of July 7th, 1898, left Wuchow for Tang Yuen.
72 rifles from the Toulmin, who stood further to port and forward. Captain Toulmin collected Chinese soldiers, and locked them up before To this point all accounts agree except us to the At this time he was calm time of the dinner, the amount of whisky they left Wuchow. and collected. About 8 p.m., the Chinese pilot drunk, and the clothing of Toulmin. All the said it was too dark to proceed further with witnesses except Toulmin are positive that all the afternoon, and evening at dinner, before safety, and says that he asked (in Chinese) per- mission of Captain Toulmin to anchor until the anchoring between 6 and 7 p.m., and at the Captain Toulmin answered him time of the shooting ia question Toulmin had with "large words" (in English), and the pilot an ordinary sack coat. Toulmin contends that went to the compradore who gave him permis- he put off that sack coat and put on his pyjamas sion to anchor, and said that he himself had while Randall and Woods were at dinner, obtained such permission from the captain. The which he says they ate after the boat was an- witness Randall and the aconged both testify chored after 8 o'clock and after he had tapped that immediately previous to the anchoring, his coat pocket in threatening the pilot. Ran- Captain Toulmin, with Randall as interpreter,dall says that when Toulmin went into the told the pilot if he ran ashore or into a rock forecastle head, he (Rundall) was ou the star- that he (I oulmin) would put a hole through him, board side of the bridge, which Toulmin says or shoot him, or kill him, or words of like effect. may be true but he is inclined to think that he Again it is agreed Toulmin, while making this left Randall on the port side of the bridge. threat, tapped his pocket saying, "I did not have When the chair was dropped Randall says that he was about 15 feet from the party on the it with me this morning but I have it now."
one
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