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Continued: The cause of the duel was the blows Torre Bueno received at the defendant's house as I have described before. I went to Mr Checa's house, because I heard of the arrest of Mr Torre Bueno on board a French steamer, and the warrant was not countersigned by me as Consul. I found the defendant and Torre Bueno were in the house. The defendant was rather angry and said something which I did not quite understand, it not being in French. They called each other offensive names. Mr Checa ordered Mr Torre Bueno to leave the room, He refused, and Mr Checa struck him. He struck him more than once; I did not count how many times. In consequence of this I and Mr Carrique carried a challenge on behalf of Mr Torre Bueno to the defendant. They spoke about a duel rather excitedly. The challenge was carried to the defendant the same evening at 10 o'clock by myself and Mr Carrique. Mr Checa said he would not fight the duel until certain transactions between Mr Torre Bueno and defendant were settled. I asked the defendant for the name of his seconds, but he did not give any.
I then made out a procés verbal that Mr Checa refused to accept the challenge.
At this stage of the case Mr Francis asked the Court to strike out all the evidence that had been taken in reference to what had taken place in Mr Checa's house, as the refusal to fight the duel ended the transaction. The charge to provoke Torre Bueno to send a challenge terminated.
Mr May differed, as he thought the cause for a challenge still existed—the striking of the blows.
Continued: After making the procés verbal I went home.
I did not carry a second challenge. On the 27th I received a letter from the defendant. I don't know where that letter is; I may have destroyed it; I cannot produce it.
Mr Toller asked what were the contents of the letter.
Mr Francis objected, as it was against all modern rule of obtaining evidence.
Mr May overruled the objection, the witness being unable to produce it.
Continued: Mr Checa in that accepted the challenge, and his seconds called upon me on the evening of Saturday. I was not there. I saw them on Sunday at my house.
Mr Toller here said that he had no further questions to put to Mr La Forest, and suggested adjournment of the Court for one hour,
The case was then adjourned till 3 p.m.
The case was resumed at that hour.
Mr La Forest was again placed in the box and examined by Mr Francis: When I went to Mr Checa's house, the defendant and Mr Torre Bueno appeared to be very angry. They were talking angrily and I heard the word "playing" and "game". The impression on my mind on hearing this was that one gentleman was accusing another of unfair playing. The defendant struck Mr Torre Bueno after those words were passed. Mr Checa ordered Mr Torre Bueno out of the house, and he was leaving slowly, Mr Checa struck him at the parlour door. It was about half a minute or 20 seconds after these words that Checa struck Torre Bueno. Mr Checa was more angry after these words than he was before. In my opinion, the blows were partly the result of what Torre Bueno had said. Mr Checa did not strike him before those words.
Wm. Deane, Captain Superintendent of Police, was then sworn: I produce the document marked A.
Mr Francis took objection to the witness' evidence on the ground that the defendant did not know the existence of the document, and it was therefore not evidence against the defendant.
Mr Toller contended that concert had been proved. It had been proved that blows were struck, a challenge was sent and accepted and a duel fought. What more evidence was necessary to prove concert? The rule of evidence was that concert had to be proved only.
Mr May wished to know what that document would prove in reference to the subsequent acts of the defendant.
Mr Toller said the document would prove that seconds were named by that agreement. He, (the Crown Solicitor) was prepared to prove that the defendant had acted in accordance with the statements contained in the document. He would recall Mr La Forest, who would prove that the duel was fought according to the terms of that document.
Mr May overruled the objection, and admitted the document.
By Mr Francis: I obtained that document from M. De La Forest at his house, or rather he handed it to me at my office. He went for it, I went with him, He returned with me to my office and gave it to me there. I had shortly before arrested Mr La Forest at his own house under a Warrant. I had no special search warrant to search Mr La Forest's house, nevertheless I did threaten to search the house or office if he did not give up the paper. I had every reason to believe in the existence of that paper in Mr La Forest's house. He refused all information of the paper at first. Without making any search I brought him up to the Central Station. There again I demanded the paper and threatened to search his house on a warrant. I did not say that I would break open his consular safe to look for the paper. I said I would search all places, even the chest. I said it would be necessary to resist any application for bail if he did not give up the paper.
Mr Francis: Now Mr Deane, do you know that you could not get a search warrant in a case like this?
Mr Deane: "I did not think I would require any." He would act on his own responsibility to search the house.
Mr Francis remarked that it was fortunate that he did not, as he would be liable to an action for trespass.
Continued: Mr La Forest gave up the paper under the influence of what I said.
1. d'Almada e Castro sworn: I am Chief Clerk at the Colonial Secretary's office. I made the translation produced. It is a correct translation of the document marked A.
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By Mr Francis: The word "sponsors" would be the more literal, but "seconds" would be the more acceptable term for the original Spanish word.
Mr Toller submitted that that was the case for the prosecution, and asked for the committal of the defendant for trial.
Mr Francis, on behalf of the defendant, urged that the present charge of conspiracy to murder, framed under the local ordinance, had not been proved, at most a conspiracy to fight a duel was proved. It was not a duel that would be murder, but the shot which should happen to kill the person that constituted it a murder. The local ordinance was copied from an English act, which was passed shortly after the attempt to assassinate the late Emperor Napoleon III., in which one Dr. Bernard was indicted for a conspiracy to murder the Emperor under an old act of Parliament passed in the time of George the 4th, and Dr. Bernard was acquitted by the jury. A great deal of discussion ensued, which led to a new act being passed, and it was copied into the local ordinance. As he said before, a duel was not necessarily a murder, as was the case in the present affair, which was simply an affray, a breach of the peace. The cause which gave rise to the duel was the demand for payment of debt.
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534
Continued: The cause of the duel was the blows Torre Bueno received at the de- fendant's house as I have described before. I went to Mr Checa's house, because I heard of the arrest of Mr Torre Bueno on board a French steamer, and the warrant was not i countersigned by me as Consul. I found the defendant and Torre Buono were in the house. The defendant was rather angry and said something which I did not quite understand, it not being in French. They called each other offensive names. Mr Checa ordered Mr Torre Bueno to leave the room, He refused, and Mr Checa struck him. He struck him more than once; I did not count how many times. In conse- quence of this I and Mr Carrique carried a challenge on behalf of Mr Torre Bueno to the defendant. They spoke about a duel rather excitedly. The challenge was carried to the defendant the same evening at 10 o'clock by myself and Mr Carrique. Mr Checa said he would not fight the duel un- til certain transactions between Mr Torre Bueno and defendant were settled. asked the defendant for the name of his seconds, but he did not give any.
I then made out a procés verbal that Mr Checa refused to accept the challenge.
At this stage of the case Mr Francis asked the Court to strike out all the evi- dence that had been taken in reference to what had taken place in Mr Checa's house, as the refusal to fight the duel ended the transaction. The charge to provoke Torre ¡Bueno to send a challenge terminated.
Mr May differed, as he thought the cause for a challenge still existed-the striking of the blows.
Coutinued: After making the procés verbal I went home.
I did not carry a second challenge. On the 27th 1 received a letter from the defendant. I don't know where that letter is; I may have destroyed it; I cannot produce it.
Mr Toller asked what were the contents of the letter.
Mr Frane s objected, as it was against all modern rule of obtaining evidence.
Mr May overruled the objection, the wit- ness being unable to produce it.
Continued: Mr Checa in that accepted the challenge, and his seconds called upon me on the evening of Saturday. I was not there. I saw them on Sunday at my house.
Mr Toller here said that he had no fur ther questions to put to Mr La Forest, and suggested adjournment of the Court for one hour,
The case was then adjourned till 3 p.m.
The case was resumed at that hour.
Mr La Forest was again placed in the box and examined by Mr Francis: When I went to Mr Obeca's house, the defendant and Mr Torre Bueno appeared to be very angry. They were talking angrily and I heard the word "playing" and " game. The impression on thy mind on hearing this was that one gentleman was esqusing an. oher of unfair playing. The defendant struck Mr Torre Bueno after those words were passed. Mr Checa ordered Mr Torre Bueno out of the house, and he was leaving alowly, Mr Checa struck him at the parlour door. It was about half a minute or 20 seconds after these words that Checa
struck Torre Bueno. Mr Checa was more angry after these words than he was before. In my opinion, the blows were partly the result of what Torre Bueno had said. Mc Checa did not strike him before those words.
Wm, Deane, Captain Superintendent of Police, was then sworn: I produce the document marked A.
Mr Francis took objection to the witness' evidence on the ground that the defendant did not know the existence of the document, and it was therefore not evidence against the defendant.
Mr Toller contended that concert had been proved. It had been proved that blows were struck, a challenge was sent and accepted and a duel fought. What more evidence was necessary to prove concert? The rule of evidence was that concert had to be proved only.
Mr May wished to know what that docu- ment would prove in reference to the sub- sequent acts of the defendant.
Mr Toller said the document would prove that seconds were named by that agreement. He, (the Crown Solicitor) was prepared to prove that the defondant had acted in accordance with the statements contained in the document. He would recall Mr Forest, who would prove that the duel was fought according to the terms of that doen- ment.
Mr May overruled the objection, and admi ted the document.
By Mr Francis: I obtained that document from M. De La Forest at his house, or rather he handed it to me at my office. He went for it, I went with him, Ho returned with me to my office and gave it to me there. I had shortly before arrested Mr La Forest at his own house under a Warrant. I had no special search warrant to search Mr Forest's house, nevertheless ! 1 did threaten to search the house or office if he did not give up the paper. I had every reason to believe of the existence of that paper in Mr Forest's house, He refused all information of the paper at first. Without making any search I brought him up to the Central Station. There again I demanded the paper and threatened to search bis house on a warrant. I did not say that I would break open his con- sular safe to look for the paper. I said
I would search all places, even the chest. I said it would be necessary to resist any application for bail if he did not give up the paper.
Mr Francis: Now Mr Deane, do you know that you could not get a search war- rant in a case like this?
Mr Deane: "I did not think I would re- quire any." He would act or his own re- sponsibility to search the house.
Mr F. remarked that it was fortunate that he did not, as he would be liable to an action for trespass.
Continued: Mr Forest gave up the paper under the influence of what 1 said.
1. d'Almada e Castro sworn: I am Chief Clerk at the Colonial Secretary's office. j made the translation produced. It is a correct translation of the document marked
A.
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By Mr Francis:-The word ";
sponsors would be the more literal, but "seconds" would be the more acceptable term for the original Spanish word.
Mr Toller submitted that that was the case for the prosecution, and asked the committal of the defendant for trial.
Mr Francis, on behalf of the defendant, urged that the present charge of conspiracy to murder, framed under the local ordin- ance, had not been proved, at most a con- spiracy to fight a duel was proved. It was not a duel that would be murder, but the shot which should happen to kill the person that constituted it a murder. The local ordinance was copied from an English act, which was passed shortly after the attempt to assassinato the late Emperor Napoleon III., in which one Dr. Bernard was indict- ed for a conspiracy to murder the Emperor under an old act of Parliament pas ed in the time of George the 4th, sud Dr. Ber- nard was acquitted by the jury. A great deal of discussion ensued, which led to a new act being passed, and it was copied into the local ordinance. As he said before, a duel was not necessarily a murder, as was the case in the present affair, which was simply an affray, a breach of the peace. The cause which gave rise to the duel was the demand for payment of debt
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