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August 26, 1905.]
What made him confess to you that he told a falsehood in giving evidence. It is not one of your illusions is it?-I am not an illusionist, Sir, he is the illusionist. I cannot tell why he came and confessed to me that he had committed perjury, but he also told Mrs.
Slater.
Where is Mrs Slater?-At the Owl Grill Room.
Having lunch, eh!-It is not lunch time yet. -All right. Thank you.
Our friend the illusionist, Burmakin, spoke to you in English, did he ?-Yes, broken
English.
To Mr. Sharp-All our negotiations were in English. I could make him understand and he understood me.
T. Moses said-On the 21st August I was asked to communicate in Yiddish with a man called Burmakin. Mr. Ellis asked me to act as interpreter. Burmakin told me that he never heard Mr. Slater telling Ellis to leave the Colony. He said he did not see Ellis between twelve that night and one the following morning; he went home to bed before closing time as he was tired after the show.
F. E. Oram deposed-I am proprietor of the He Praya East Hotel. I knew the deceased. was in my hotel ou the night of his death; he called twice, first between eight and nine o'clock, when he had a beer; the second time he came in was between 11 and 11.30 when he had a second pint of beer. I again saw him at ten minutes to twelve, when he asked me to do him a favour by lending him $2, which I did.
Did you ever inform the police of this?- Yes.
They came and asked you. did they not?—Yes. But as a matter of fact you were never called to give evidence ?—No.
Cross examined-Sampson was absolutely sober when I saw him at ten minutes to twelve o'clock.
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Bessie Radcliffe stated.-Ou the night of the 18th July, after dining at the Owl Grill Room, I made an appointment to meet Miss Desbien and Mrs. Slater at the Metropole. I did go down, but found that they had gone. I got back to the Owl a little after eleven o'clock. Miss Desbien was then there, but not the d-fendant. I left with Miss Desbien at 11.50 p.m. went for a drive to Wanchai. When about as far as Arsenal Street we came back, following the car tracks and turning off to come up Ice- house Street. As we got to Queen's Road I heard Miss Desbien call out-"Bess." On looking round I saw a soldier holding her ricsha. He struck her on the mouth. Miss. Dasbien got out of her ricsha and the soldier went up Battery Path. He was walking slowly and staggering as though intoxicated. Just then defendant came up. Miss Desbien was crying and she said. "Look Aaron, a soldier has struck me." Ellis said Where is he?" and Miss Desbien pointed up the Path. I said to Ellis. "Get him or fetch him," and Mr. Ellis said—“ I'll fetch him.' We both made a move to follow the defendant, but Miss Desbien fell and I stopped to help her up. Just as she got up Ellis came back. Miss Desbien maid-"Where is he?" Ellis said-“ Up there.' She said "Come on, let us go up." and she and I went up. The defendant held my dog at the foot of the path. The soldier was lying on the ground where the light was shining from the lower gas lamp, I looked at him, and could see his face as the light was shining on it. It showed no mark of injury. From what I saw I thought that he was drunk, Miss Desbien touched him with her shoe and said. “Turn over." He did and said something, but what it was I didn't hear. Miss Desbien took the badge off the soldier's shoulder. She took the pin and the letters away with her. The plate under the shoulder strap did not come away. We then came down the path, taking ricshas at the foot. From the bottom of the path we could see the soldier. Miss Desbian called my attention to him; 8.5 We
in were our ricshas I BBW him move, and
thought he was going to get up. We returned to the Owl Grill Room. When in front of the Silver Grill Room we met Mr. and Mrs. Slater.
Ellis got out of his rischa and showed Mr. Blster his hand, the and being that Mr. Slater got him some brandy. Later we got back to The scene of the accident. Ou walking up the path we mw nothing where the soldier had been before. Miss Debien said.—“Let us go round
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CHINA OVERLAND TRADE REPORT.
137
the other way. On going further up we saw | form your verdict. Possibly the most import- a pool of blood on the path some distance | ant principle I can use in the whole of our When we siw this distressing | Criminal Court is that which is generally further up.
The known as presumption of guilt. That is the sight we turned round and went home. soldier was lying on the path on his left arm. principle under which the prisoner, this I denied knowledge of the affair when the defendant, is entitled to the benefit of all police first spoke about it because Mr. Ellis reasonable doubts: I do not mean fanciful or If upon the asked me to keep it quiet on account of his artificial, but proper doubts, people.
evidence, you think it is reasonably possible that the deceased's first fall when the defendant struck him did not occasion the fatal injury, and that the deceased got uɔ and moved on as You admit that you told an untruth to the you have heard, aud was under the influence poli-e? Yes.
Cross-examined - You were at that time living with Ellis ?—Yes.
And are now?—Yes.
You come before us, I am sorry to say, in the unfavourable character of a person capable of saying what is false in order to save a friend. You say you had no anxiety in respect of the deceased? --None at all.
And that you only went up to the place where you had seen him lying out of curiosity?Yes.
What kind of curiosity? I don't know. What was it that you three persons were curious about. Why did you go up the pith when you could see from the bottom that the was not lying there - Miss Desbien suggested that we should go up round that way home.
man
Now, you live at Thomas' Annexe. To go up Battery Path way and round is about half a mile out of your road. What was it that led you at 1.30 am. to go the longest way round ?— Miss Desbien suggested it.
You did not accept that suggestion when you got further and found a pool of blood: you were horrified and turned back ?—No.
Why did you turn back?-I don't know. Some one said “Let us go back."
You did not go on and see the place where someone was sick on the pith ?—No.
Was it not you yourself who was sick?—No, sir.
Are you sure?—Quile.
When you left the man lying prostrate he was practically unconscious?-I don't know, I was standing up. Miss Desbien leaned over him. I know he said something.
Only two minutes elapsed from the time he was slapping Miss Deshien until he went up Battery Path - Yes.
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And during that time he became so absolutely stone drunk that he couldn't move?-He was very drunk when he walked away.
And you did not think he was seriously hurt?-No.
T
What made you look round again after you left the path? I think it is only natural to do so.
When you saw him move you were in your ricsha by the tree?—Yes.
On your oath, this is the first time you ever said that. Can you swear that you never told Mr. Goldring you saw that man move or try to move?-Yes, Sir, I can swear it.
You did not tell Mr. Hanson that when he took your statement? He did not take my statement.
Re-examined-I did not s03 a Chinese Boy about, and had he been on the path I should have seen him.
The Attorney-General-Did you leave the dog behind for fear it shou'd lap the blood? No, Sir.
leave it behind -I left it Why did you with Ellis because I did not want it to run away from me.
His Lordship-What caused Miss Desbien to fall?-She stumbled in a little ditch.
To the Jury-I have not been prompted to
this
did evidence. I
not notice give the soldier when Miss Desbien told Ellis that she had been struck, as I was looking at her mouth.
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on
sure
Mr. Sharp then addressed the Court behalf of the prisoner. He said-As Your Lordship pleases: Gentlemen, I you have fully grasped the defence. With regard to the story of the defence I think I have nothing to add to what I said in my opening, and further than that, I have Little comment to make upon the evidence
evidenos because that
is also fresh in your memories, and I think to recapitulate to any extent would be waste of time. I will rather direct your attention, gentlemen, to a few points which I conceive to be points of especial importance in the case, and to the principles on which I submit you will have to
is
of drink, I am sure His Lordship will direct you that the proper application of that prin- aiple is that you will have to give the defen- dant the benefit of the doubt. I do not say that you must be absolutely convinced that it is true, but if upon the evidence laid before you, you think it reasonably possible that this would occur, and that the fatal injury was not inflicted by the fall which the defendant un- doubtedly caused, then you are bound to give the defendant the benefit of that doubt. Gentle- men, this is a case of great obscurity, but two things are clearly shown emerging from this submit it is sufficiently easy to see obscurity. that this man was under the influence of drink; the balance of the evidence most clearly goes to show that point is tolerably well established. The second point, that the deceased moved, is established by the evidence. As to the first point, we have to consider the character of the evidence. Naturally, there strong bias among deceased's own comrades against the defendant, but I think you will come to the conclusion that most of the evidence given is true. Sergeant Crane frankly admitted that there was a strong feeling among the soldiers; but even though there was this vindictive feeling, which was only natural, they had to admit that deceased was addicted to drink, at least, some did and some did not. Singularly, the particular witness who knew deceased most, showed a strong inclination to shelter his companion; he admitted taking one drink with him. The landlord of the Praya East hotel said deceased went there about 11.30 p.m. when he had a drink. He left and a second time returned alone, and had another drink. He does not say Private Woodham was with him, but Private Woodham took upon himself to say that decensed could not have had another drink that evening as he was with him. Private Woodham is wrong in saying that deceased had only one drink. It is significant also that one conviction for drunkenness is recorded on the record of this man. It is much more to the point when Private Wood ham said he had often seen him drunk. Let us look at the history of the day preceding the deceased's death. We hear he did a week's daty on board we are told the Meeanee and came ashore: that that duty is unpopular; we are told that shore only once on deceased week. There is, therefore, very little doubt that man like the deceased would prepare for considerable relaxation. My friend makes a strong point of the admission of the landlord of the Praya East hotel that when he last saw the deceased he was not drunk. Gentlemen, you all know the old saying-" If you ever want to know when a man is sober, ask a publican to serve him with a drink." I do not say he was drunk at that time, but I think probably he We know he had was considerably advanced. a good many drinks, and that he borrowed $2 from Mr. Oram, and when he was picked up he What had happened had only 80 cents left. between 11.50 and 12.35 to the remainder of the $2? The man's motive in going out of barracks at that time of night could clearly be nothing else than to get drink, and the extent to which drinks can be got in this town after midnight unfortunately you know. What is the evidence with regard to deceased's condition at the time of the accident? Miss Desbien and Miss Radcliffe certainly had ample opportunity of seeing, and from their evidence it is clear that the man was very much under the influence of liquor; not so much as to be unable to get a hold of the ricshs, but as he walked away he realed and staggered. Defendant's statement, which is extremely brief, says the mms thing. the I would also direct your attention to-- evidence of the police who, when they found him, said the man smelt of liquor, and when they say he smelt of drink we may take it that
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