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Mr May should like to hear from the witness' mouth whether with the Pardon in his hand and being on his oath, he still had the remotest idea of danger.
Question put, when Mr La Forest said that having heard what was said, he was under the impression that he would be in danger if he answered the question.
The Magistrate asked the witness to reconsider his answer; the Magistrate had to determine whether the objection was a reasonable one or not.
The witness again said it was his firmest conviction that he would be endangered.
The Magistrate then said he had to decide the point. He decided that the witness must answer the question, and if he refused, he would have to commit him to gaol.
Examination continued: This is my signature, but I cannot swear to the other signatures. I saw the first portion of the document written. It was written at Mr Dubost's house, without that gentleman's knowledge.
Mr Francis objected to further questions on the subject of the document. It must be first proved in a case of conspiracy the concert of the defendant before any act overt could be proved.
Continued: The defendant never saw the document; he was not present when it was written.
Mr Francis maintained his objection that concert must be first proved.
Mr Toller said he would prove concert, and asked witness if a duel was fought by the defendant.
Mr Francis objected to the question on the ground that it was not relevant. The charge was for conspiracy, which commenced and ended in Hongkong; it mattered not whether the duel was fought or not.
Mr May decided that it was relevant; to contend otherwise was to carry the point of relevance to a ridiculous degree. If the duel was fought it showed that the defendant was cognizant of the document.
Question put, when the witness replied that of his own knowledge, he knew that a duel had been fought between the defendant and one Torre Bueno.
Continued: I acted as second to Mr Torre Bueno.
Mr Toller submitted that he had succeeded in proving the conspiracy; the witness was a second and the defendant a principal in a duel; he would ask some questions with reference to the document.
Mr Francis submitted that such questions were not admissible unless it was proved that the defendant was made cognizant of the contents of the document. The Magistrate asked witness if he knew that the defendant was made cognizant of the contents of the document.
Witness replied that of his own knowledge, he did not know, and continued: the other second for Torre Bueno was J. F. Carrique. The seconds for Mr Checa were two Spanish officers, Ginard and Troujillo. All four of us met at Mr Dubost's house. The first day we met was Sunday the 28th July; we never met before. Mr Dubost's house is between Stanley Street and Queen's Road. The first part of the document was written on Sunday.
Mr Toller: Who wrote that?
Mr Francis objected, because the defendant was not present, and no acts done or declarations made in his absence could be evidence against the defendant.
Mr May said if this would form a link in the chain of evidence, it was relevant.
Mr Francis said he was not contending on the point of relevancy or irrelevancy; it could be argued that acts done or words passed in the absence of the defendant could not be given as evidence against him. This was against all rules of evidence.
Mr Toller contended that in a conspiracy, the rule of evidence was different from that for other offences, because means could be had in other cases to get evidence which in a case of conspiracy could not be had.
Mr May overruled the objection, saying that the question was not irrelevant; the Crown Solicitor was trying to give the Court all the knowledge the witness could impart.
Mr Francis observed that in that case his Worship abrogated his function as Judge and allowed the Crown Solicitor to do just as he liked.
Mr May thought Mr F. was not justified in making use of that expression. He would exercise the law to the best of his capability either for or against the prosecution. He would not say that the question was evidence, but he thought it was relevant to the case as it would form the link in the chain of evidence.
Mr Francis demanded its rejection, since his Worship had himself admitted that it was not evidence.
Mr May said he did not say that it would not be evidence eventually, what he said was in reference to the present stage of the case.
Continued: I believe Trujillo wrote the document; the duel was fought on Monday at Kowloong, further east of the city, it was on Chinese Territory.
Mr Toller asked what was the result of the duel.
Mr Francis objected as the question was not relevant.
Mr Toller said he only wished to prove the contents of the second portion of the document. After further consideration, Mr Toller said he would not press the question.
Continued: I spent Sunday night in the colony, but did not go to bed or undress, as I was running from one place to another. The latter part of the document was also written in the colony. I believe it was written either Monday or Tuesday. I think it was the same man who wrote it. All four of us were present, I signed the document. I don't know if the others signed it. I did not see; I was tired and was lying down when it was brought by a servant to me to sign. I put the document into my pocket. Before doing so I saw the writing on it; it appeared to be signatures. I returned to the Colony in a rowing boat: Torre Bueno was in the boat with me as well as Trujillo, Carrique and the doctor.
Mr Toller: In what state was Torre Bueno?
Mr Francis objected to the question, as it was irrelevant to the charge of conspiracy. Evidence that the duel was fought might be necessary, but the result was not.
Mr May overruled the objection, and Mr Francis wished a note of it be entered in the depositions.
Before doing so, Mr May wished to hear what Mr Toller had to urge.
Mr Toller thought it was all important to know whether Torre Bueno came back with a bullet wound; it showed the end of the duel.
Mr Francis failed to see how Torre Bueno's return with a broken leg could have anything to do with a conspiracy.
Mr Toller then withdrew the questions and asked if the witness saw the defendant strike Torre Bueno.
Mr Francis objected; the charge was not for an assault.
Mr Toller pointed out the count for sending a challenge to provoke to fight a duel; the mere threat to strike was held sufficient.
Question upheld.
I saw Mr Checa strike Torre Bueno. This was on Friday, the 26th. This was at Mr Checa's house, but the exact time I do not remember, it was some time in the afternoon.
The witness was then asked to give a narration of the occurrence. He declined, saying he would answer any questions that would be put to him. He did not know what to say.
The Magistrate said the Crown Solicitor could not know what had happened.
Mr Francis said he was bound to know, he was not here to fish for evidence.
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