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RE-HEARING ON APPEAL AT THE SUPREME COURT.
The re-hearing of the case on appeal in which Ernest Magnus Almberg, a Swedish civil engineer, was sentenced to three months' imprisonment with hard labour by Mr. CD Melbourne on a charge of maliciously wounding a British blue jacket named William Barry in the King, Edward Hotel annexe by shooting him
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with a revolver was commenced before the CHINA AND GLASS DEPT.
Chief Justice (Hon. Sir Win, Rees Davies, K.C.), and the Puishe Judge (Mr. H. H. J. Gompertz) at the Supreme Court yesterday.
Mr. F. C. Jenkin instructed by Mr. D. Lewis, af Messrs. Johnson, Stokes & Master) was for the appellant, and Mr. C. G. Alabaster (instructed by the Crown Soliciter, Mr. M. Hodgson) appeared for the Brown, g
Mr. Jenkin said this was an appeal by way of re-hearing, with leave to call fresh evidence, from the decision of Mr. Melbourne, sitting as Magistrate on the 26th October, when he convicted the appellant of unlawful wounding, and sentenced him to three months' imprison- ment with hard labour. Permission to call fresh evilence was given. That fresh evidence would be directed to an elabora tion of the defence which was set up in the Police Court, that of self-defence. He would submit to the Court that when the appellant fired his revolver he was entitled to do so under the laws of self-defence, The only question which the Court would have to decide, and it was almost a matter. of evidence, was whether what Almberg. did was disproportionate to the injury that was done or threatened to be dono by his assailant Barry. If the man was actually subjected to bodily harm he would be entitled to use force proportionate for the purpose of warding it off, and would even be entitled to do so if he was merely under an apprehension of bodily harm."
The Chief Justice The rule is that he would only be justified in using a revolver if he was in danger of his life or feared grievous bodily harm. ANTARA
In answer to the Chief Justice, Mr.. Jenkin said his position was that Ahnberg merely intended to frighten the sailor, and that he did not intend to shoot him. He himself was in such bewilder ment and four, that he did not know whether he did or did not hit the sailor.
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you? Do you really think that is English justice-Well, I didn't think well about it. I was frightened.
[649
tated. Thore had been no threats pro- viously used, and what Almberg did was done immediately ho realised there was danger to him. The danger was very obvious and Almberg had to defend him self.
Witness further said he thought he fired from a distance of five feet from the sailor, and Mr. Alabaster called his attention to the evidence of the Naval doctor, who said The Chief Justice, in dismissing the that it must have been fired at very close appeal, said that two defences had been quarters, probably only a foot away.
up in that case on behalf of defend Mr. Alabaster-Do you think that evenant, though they resolved themselves into, at five feet, if you fired at the floor, you practically one defence, that of self- would have hit a man just over the heart defence. Almberg contended, and had I was terrified, and my whole body was said so in the witness box, that the shot shaking.NE
from the revolver was accidental and that. he never wanted to injure either of the men. Supposing they had had to leave
would have had to answer would bo
The Chief Justice-Were you drunk or
not sober.
The Chief Justice asked why this defonsober at the time -Well, my Lord, I was the case to a jury, the one question they
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had not been put in cross-examination to
Mr. Eldon Potter, barrister-st-law, was Were they satisfied that the shot was ac- the complainant in the Police Court There was nothing in the depositions to then called by the appellant, and the cidentalt As far as that was concerned show that the matter of self-defence was Chief Justice remarked-You are playing they (the learned Judges) had, for the mentioned in cross-examination Suppos- quite a new rôle, Mr. Potter (Laughter.) purpose of the case, constituted them ing the defendant substantiated all that
Mr. Potter stated that he was in his selves in the position of a jury, and he Counsel for the appellant had said in Chambers, which were in the same build-(the Chief Justice) had no hesitation in regard to the facts, the witnesses for the ing as the King Edward Hotel annexe, in expressing the opinion that the firing of prosecution should have an opportunity consultation with Mr. CEH. Beavis one revolver was not the result of an of giving their version of the happeninga. the afternoon in question when he beard a accident. They had had medical evi. There was nothing of self-defence in the noise in the passage as of men falling dence which showed that the wound was depositions, and it was absolutely incon about. Two sailors then burst into his not a dangerous quo, though the bullet ceivable to his Lordship why Barry was office through the swing doors. One of had miraculously missed Barry's heart not cross-examined on this question. The them, the man Blandford, was trying to and lunge At anyrate, if a man picked Court could not possibly adjudicate on hit witness effica boy, and the other, up a revolver and prosented it at another this case at present unless they had before Barry, carried a revolver in his hand individual, then that sufficed to make him responsible for his act, and he scald not for moment accept-
the then the complainant Barry and the other Witness got hold of Blandford, who asked
suggestion that sailor Blandford and put before them the him if he was a German in more or less the wound was the result of an accident. new evidence. Dette rope strong terms on several occasions. He also The question arose whether the revolver The Paisne Judge (to Mr. Jenkin)We aimed a blow at Mr. Beavis over witness was used and the wounds inflicted in self- pointed out to you that there was the shoulder. The two men were eventually defence. In order to establish that de shadow self-defence in got down the stairs, and the police took fence it was necessary for the defence to {show and praxe to the satisfaction of a appellant's defence at the Police Court. charge of them.
The Chief Justice-It is inconceivable
Mr. Beavis gave similar evidence. He jury that a person was in the belief that that if all these facts were known to the said that the blow that Blandford aimed his life was in imminent danger, or that. solicitor for the defence he did not at him just touched his jaw, the sailor he was about to receive grievous bodily cross-examine on it. I am not saying that only just reaching him. Barry had a harm, before he was justified in taking this is going to require me to discredit the revolver, the breech of which witness the law into his own hands and using a noticed was at first open. Barry closed dangerous weapon. The law on the evidence. SAN
Evidence was then called.
the breech, and pointed it at witness and point had been referred to, and he was The appellant, Alberg, detailed the then at M. Potter. He was also accused bound to say, after perusing the cases story of how he met the two sailors, and of being a German spy. Witness asked which had bean submitted, that he saw said the trouble really started during a Barry to give up his weapon, but the nothing to justify Almberg in arriving at discussion on the matter of the Emden. latter refused. It was a hazardous matter the conclusion, on the facts of the case, Witness suggested that the Captain of to wrest it from him, as during the that his self-defence was justified,
An Indian whole affair took place in defendant's the Emden had acted as a gentleman and struggle it might go off. as a British sailor. Harry said, "What constable snatched the revolver from him room, and he was standing, as be Sinking poor defenceless merchantmen in the stairway. Witness added that said, when the assault was made upon Do you call that gentlemanly?" Witness Barry had the revolver, but did nothing him, in close proximity to a drawer where tried to explain, and Barry suddenly except talk about Germans. Blandford he knew the revolver was lying. jumped up and said, "I can see what you was Very violent, and seemed to be very Almberg took out that revolver and fired area. Germari spy." At the same time drunk. Barry seemed to have beer sobered it, because, as he contended, such self- defence was necessary.. Defendant had he hit him in the face with his clenched by the wound from which he was evidently referred to the threats used against him, ist, knocking him off the chair on, which suffering. He was of opinion that Barry but he (the Chief Justice) supposed that what Barry meant was that he would he was sitting. Witness got up, and he was sufficiently sober to put a man in fear then twisted witness wrist badly, which of his life.
The Chief Justice said it was undesir kill him at some time or other. The men brought him down on his knees forcibly,.
were about equal in build, and it was Corp. E. M. Raymond is transferred breaking the skin of the knees. Barry able to arrive at a decision until the hardly right to suggest that the sailors, from Right Section M.G. Co. to
was constantly accusing witness of being sailors Barry and Blandford had had an who would only use their hands, were EK.V.R., dated 1st December, 1914...
s German spy, and saying he would see opportunity of meeting this new evidence about to do him grievous bodily harm. RESIONATIONS.
Mr. Alabaster said that Blandford had There was nothing in the authorities to 3-Sapper C. A. J. Wilkie is permitted witness shot. He batted witness with his
to resign, dated 30th November, 1914. head, and knocked his head against a been drawn into it by the appellant in lead him to believe that because a threat, book-case. The blows made witness' face order to give an artistic touch of versimi of harm at some future time was raade, The undermentioned members ara
Witness had an idea litude to a bald and unconvincing narra that this justified defendant in using the permitted to resign on Medical Certibleed profusely,
The truth of the case, as, he that if the sailor thought him to be a spytive. Blandford had nothing to do with revolver. Geate ¡Pte.
Bearer he was entitled to kill witness. Witness the case at all. He was in and out of imagined it to be, was, unfortunately.. Hardwick, Stretcher
was knocked towards his desk, and then Almberg's room, and at the fine of the that all the men were under the inducnge Section. Pte. Slark, Stretcher Bearer Section, took his loaded revolver from the drawer, trouble was outside. The Chinese boy of drink, Defendant himself was under Pte. Melbye, Right Section 3.G. Co. which was half-open, with the intention gave evidence that Blandford was asleep the influence of drink, and in his sober of frightening the sailor. He ordered in the corridor outside He submitted raoments would never dream of taking Barry from the room, and the latter then that the defence of justification in self out a revober. In a moment, when no hifted a chair off the ground and made defence could not be held good. He doubt enraged by tire insults put upon as if to attack him. Witness was in fear, thought he could satisfy their Lordships him by Barry, Alnberg most unfortunate and fired the revolver, but was under the without calling the witness for the prosely made use of the dangerous weapon. As regards the subsequent evidence called impression that he fired at the floor.cution.
The Puisne Jedge said he understood at that day. Mr. Potter and Mr. Beavis Barry dropped the chair and, thinking he was scared, witness threw the revolver the application for leave to appeal that spoke to the angry condition of the two on the table and ran past him. He did there was to be a re-hearing of all sailors; he could only say that that did not know whether he hit Barry. The next evidence, and the Court directed the not go to the gist of the case. It went to show that they were angry, and also morning in the cell at the Central Police sailors to be produced.
The Chief Justice remarked after the making threats, but it did not concern Station he heard a warder say to Bland- ford, Hello, Jack! What are you doing titin ndjournment that he would like to what actually happened in the room at here The sailor answered that he had hear, Mr. Jenkin on the case, and to the time the assault was committed. and a recap with a German at the King establish his defence that what Almberg After full consideration of the most in- Edward Hotel,
did was self-defence within the law genious argument put forward by the Mr. Jenkin said that that was what earned Counsel on Ahnberg's behalf, he In cross-examination by Mr. Alabaster, witness said he had been in the Colony two ho was going to say that the facts of the opinion that the appeal should the defence of self-defence be dismissed, and he desired to say, hav-4 years, and during that time he had never justified taken sailors to his room before. He did within the law. Almberg was assaulteding regard to the facts of the case, that it on this occasion because they had stood in such a manner as to put him in he considered the sentenco of the Magis Almberg was therefore probably, than would have been the him a drink, and he wanted to return the immediate and obvious danger of grier rate was a lenient one; more lenient compliment. Witness and Barry engaged cuts bodily harm. in feats of strength in his room, and they entitled to defend himself on the spot, and age had the case gone to a jury, see He was ry for defendant, because he Mr. Jenkin then asked if anything be by the state he was in. No doubt the to his sentence, would be entertained by is the oldest and still immoseurably the best sermed about equal in strength. These the immediate and obvious dangers need no reason to interfere with it, added the thought he was led into the affair entirely might say on behalf of Almberg, in regard The Puiene Judge said that he agreed whole of the quarrel arose out of the that Court. He asked this in view of trials of strength, he thought, resulted not be serious bodily harm actually done; Chief Justice.
is could be serious bodily harm threaten- from a remark made by, witness concerned, and of which he might reasonably have generally with the judgment which had intoxication of the three men. As to the what had fallen from his Lordship.
fallen from the learned Chief Justice, and evidence of the two sailors when they went The Chief Justice-I can only say again ing Swedish exercises
apprehension. Mr. Alabaster He was not stronger The Chief Justice-Does that justify he would not take a different view from into Mr. Potter's room, he thought all that that my opinion is that the sentence is a than you What inspired you with this the use of a dangerous weapon? Yes. I the Magistrate that the shot was not it was necessary to say was that at that lenient one,
accidental. On the whole, and under the time one of them had already been shot, tremendous terror of him? When he submit it would. called me a German spy, and said he Counsel referred at length to authori circumstances, he thought that as a means they had the revolver with them, and no would see me shot.
ties in support of his contention that the of self-defence it was unnecessary for doubt they were very enraged against the method of defence adopted by Almberg defendant to use a weapon such as a person who had used the revolver. He was justified under the circumstances revolver, and he did not think defendant agreed with the view that the appeal also that it was an action not premedi- would have used it in his sober senses, should be dismissed.
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The Chief Justice-I do not think you can ask for it.