Otago Witness , Issue 1916, 30 October 1890, Page 11.
(From Our Own Correspondent.) Nenthorn, October 22.
At the Resident Magistrate’s Court to-day, before Mr S. M. Dalgliesh, R.M., the case of Edward Donnelly v. James Hartstonge was heard and excited great interest.
The defendant was complained against by the Rev. Father Donnelly with having committed an assault upon, and used abusive and insulting language to the complainant at Macraes, on Sunday 28th September last, and pleaded Not guilty.
Mr Findlay appeared on behalf of the complainant, and Mr Rowlatt for defendant.
Mr Findlay, in opening the case for the complainant, said that he took it that this was probably the first occasion upon which his Worship had had before him a case of this extraordinary nature, in which a priest of the Catholic Church had been assaulted by one of his parishioners the government of that church being universally known as so good and efficient in the keeping of good conduct and order amongst the members of its flock. The facts, briefly were, that some short time ago, Father Donnelly spoke about some repairs to the church upon which defendant told him he would “smash his face in.” On another occasion, while one Phelan was working at the church, similar language was used by the defendant to complainant. On Sunday, 28th September, defendant demanded from Father Donnelly the sum of £2 10s, the alleged price of some timber which was subsequently found to be of the value of 1s 3d, and on complainant refusing to pay him, said “You devil, you must clear to h––– out of this.”
Mr Rowlatt objected to counsel making assertions as to language used which did not appear in the complaint.
His Worship, after hearing argument, overruled the objection.
Mr Findlay continuing, said Defendant then proceeded to shout out further abusive language after the complainant, who was on his way to church. In the afternoon of the same day the assault complained of took place, accompanied with further abusive language, and from that time till the present tbe complainant had been treated with abusive and insulting language by the defendant, wherefore the complainant prayed that defendant be bound over to keep the peace. He called
Edward Donnelly, Roman Catholic priest in charge of the church at Macraes, who, being sworn, said I remember Sunday, September 28. I was on my way to church when Hartstonge, the defendant, rushed out to me on the road at Macraes and asked me to pay him some money he alleged to be due him for timber. I said I owed him nothing for timber, when he replied, “You b––––– villain, I’ll smash your b––––– face if you don’t pay me.” He followed me up, shouting, “You b––––––, you rogue, we must hunt you out of Macraes.” I went into the chapel and prepared for service, and defendant followed me in right up to the altar. After service I left the chapel and proceeded to Claffy’s house, where Hartstonge was standing pouring out abuse upon me. By Phelan’s advice I did not go to my rooms there then, but into the hotel. After a time we went to see the repairs to the church, and on returning went to my rooms at Claffy’s. While there defendant attacked me again about some accounts, when I replied I would not have anything to say to him. I then turned to go in at the door, when defendant made a rush at me and struck me in the face. He followed me through the door, and his son followed him in and separated me from defendant, who was beating me. The son put the defendant out, with the assistance of someone else. I gave defendant no provocation whatever. I am in bodily fear of defendant. He has frequently threatened me with violence, and even to take my life. Defendant is excommunicated from the Church.
To Mr Rowlatt I have been in this district seven or eight months, and am duly ordained, being in charge of the district. Before coming to this district, for three years I was part of the time in Dunedin and part in Oamaru. My predecessors had strong objections to visiting Macraes, matters being made very unpleasant for them. It is customary to read lists during service in my church of moneys owing and received for specific purposes. I mentioned defendant on the Sunday in question as owing for some tickets. Defendant was in church when such list was read, and, causing an interruption, was put out. After he was put out I mentioned his name in this connection. The amount he owes the church is £5 10s 9d for these tickets at the present time. The paper produced is Hartstonge’s statement as to the sale of the tickets. He disputed the amount and number issued to him, so I asked him what tickets he admitted to have had, and at his dictation wrote the statement in your hand, which he took away to compare with his book, but has never since settled the matter up.
Defendant incurred excommunication ipso facto by striking a minister of God. After service he did not ask if I Had referred to him. He abused me, and I cannot swear that I did not call him a liar and a robber. Very probably I called him a disturber. I said as little as I could to him. In the afternoon I was standing on Claffy’s verandah in company with Sheehy, Heffernan, and others. This was when he struck me in their presence. He struck me from four to six times about the head and face. The blows raised a slight swelling in my face. Before he struck me I said I would not speak to the like of him. I did not invoke the curse of Almighty God upon him in chapel, but quoted portions of Scripture showing the penalties of the Almighty upon those who committed the sin of slander.
To Mr Findlay When the assault took place I called defendant no abusive names.
John Sheehy, farmer, of Moonlight, being sworn deposed I know the complainant and defendant, and was at Macraes on Sunday, September 28 I remember an assault occurring at Claffy’s house on that day. Father Donnelly, myself, and some others were standing together, and the defendant came also there. I saw a blow struck by Hartstonge upon Father Donnelly. I heard Hartstonge call the father a rogue, a scoundrel, and other opprobrious names.
To Mr Rowlatt: I was not paying much attention to what occurred at first. I did not hear Father Donnelly use any vulgar expressions to defendant. I did not hear all that was said, and cannot remember all I heard. The blow I saw struck by defendant reached complainant, hitting him on the crown of his head. Defendant’s son was at that time between them. I did not hear complainant call defendant a scapegrace I was at service in the morning when Father Donnelly gave certain explanations as to money, but he mentioned no name. I did not know to whom he referred until defendant stood up, and in violent terms asked if he was the person alluded to. Father Donnelly did not reply to him, but asked the congregation if they would allow defendant to speak to him in that manner in church. I did not hear complainant call defendant a robber nor a liar. I never heard any violent expressions used by Father Donnelly to defendant.
William Heffernan, farmer, Moonlight, in the coarse of his evidence said he heard Father Donnelly say that defendant was not authorised to collect money for the church. He did not hear defendant call complainant by any abusive name, but saw him rush at complainant at Claffy’s door. He heard a scuffle, but when he went in all was quiet.
To Mr Rowlatt: I did not hear Father Donnelly use any violent expressions to defendant. I do not know who opened the door.
John Hayes, farmer, Moonlight, sworn, said: I remember Sunday, September 28, and saw the complainant and defendant talking opposite Claffy’s store. I saw defendant rush at complainant when trying to enter by the door, but did not see any blows struck. I was at chapel in the forenoon and heard Father Donnelly speak about some tickets then, and remember that defendant got up and asked the priest if he referred to him. I heard no reply I swear that I did not hear Father Donnelly curse the defendant in chapel. I never heard such a thing done. I did not see any marks on Father Donnelly’s face after the assault, nor did he complain to me that he had been hurt.
Patrick Phelan, miner, Macraes, sworn, said I remember September 28. I was in chapel on that day and heard defendant get up and ask if he was alluded to. Defendant was taken out of church by his wife.
To Mr Rowlatt: Father Donnelly did not answer defendant in church except by quoting a text of Scripture. The tickets alluded to were for a concert which had been given in aid of the church.
This closed the complainant’s case. For the defence.
Mr Rowlatt said that what he conceived to be the state of the case was that, although the defendant was not referred to by name during the service, most of the listeners knew who was meant. He submitted that this was purely a secular matter, and that the complainant had no business to make such a reference during a religious service, and that, therefore, great provocation had been given defendant. He called
Kerin Claffy, son-in-law of defendant, of Macraes, storekeeper, who, being sworn, said I remember Sunday, September 28, and attended chapel on that day in the forenoon. I heard Father Donnelly refer to some one about some money matters, but did not know at first who he meant. I remember Hartstonge getting up and asking if he was the person alluded to. After service I remained in the chapel. I have known Father Donnelly seven or eight months he lodges with me. He is away occasionally.
To Mr Findlay: I remember the Thursday after the Sunday in question, and Hartstonge coming to me and threatening to pull the roof of my house if I continued to harbour the priest. He further said he would persecute me while I had a shilling.
James Hartstonge, jun, farmer, Nenthorn, sworn, said: I am a son of the defendant, and remember Sunday, September 28. I was at chapel at Macraes that day. Father Donnelly conducted the service, and my father was present. During the service Father Donnelly said that there was in the parish a certain man who was continually slandering and maligning him. My father got up and asked if he was alluding to him. I am not positive, but think Father Donnelly replied “Yes.” I then asked my father to leave the chapel. The remarks made by Father Donnelly were very unpleasant. After leaving the chapel my father went into the township. After my father left the priest said that he would make it warm for my father. Later I saw my father and the priest talking together. I did not in any way prompt my father to insult the priest, but, on the contrary, was anxious to bring about a meeting between them with a view of settling the difference amicably. I asked Father Donnelly to come into the room and get the matter settled, but he declined. My father said, “I’ll make you settle it, you d––––d scoundrel.” On this the priest looked round and said, “Go on.” My father then rushed at the priest, and the latter got inside the door, my father after him. I could not say if a blow was struck at first or not. I followed quickly and interfered, endeavouring to protect the priest as my father struck at him. I do not think he hit him, but he did hit my hands, with which I was trying to protect the priest’s head. After that no further angry words were used. I do not think the priest’s statement that my father hit him several times can be correct. I saw no blows reach the priest, and saw no marks on his face. He complained to me afterwards that my father had struck him, but did not say where.
To Mr Findlay: After my father rose in chapel, there was some uproar and after my father left, my mother rose and said that whatever my father had done, neither herself nor myself had anything to do with it, and Father Donnelly replied that he was certain such was the case.
James Hartstonge, of Macraes, settler, sworn, said I am the defendant in this case. I know the complainant, Edward Donnelly, and remember the 28th of September last, when I attended service, at the Macraes chapel. After mass, Father Donnelly gave an account of moneys he had received and expended. I knew his accounts were wrong, having seen them, He said there was a certain man in the parish who did nothing but go about and malign his neighbours–making it appear that he alluded to me. He said this man was a calumniator and a rogue. I rose and asked if he alluded to me, and he said “Yes.” I said, “You are a liar, a scoundrel, and a disgrace to your congregation.” My wife then rose and said to me, “Leave this house, and do not listen to that fellow,” and I left. I went down to Claffy’s, and shortly afterwards my son came and told me that Donnelly was “going on at a –––– of a rate,” and asked me to go back to the chapel to defend myself. I went back, and at the time of my re-entrance a collection was being made, to which I did not contribute and no more was said. I went back to Claffy’s, and when the priest came down I asked him to let us get these accounts settled. He replied, “Get away, you scapegrace.” I was mad when he called me so, and I rushed into the house after him. I think if I had had a revolver I should have shot him. When I went in I tried to hit him, and did not succeed but hit the hand of my son, who was trying to protect him.
To Mr Findlay: My son did not assist in getting me out of chapel. I did not hear my son call upon me to leave the congregation. There is nothing of the scapegrace about me, and the word maddened me. It is true that an advertisement was inserted to the effect that I was no longer authorised to collect money for the church. I did not threaten Claffy, as he stated. When I am in a temper I often do things I am sorry for afterwards.
This closed the case.
His Worship said: This case has been a very painful one from its commencement, and unprecedented, I think, in colonial records. The evidence is entirely in favour of the complainant, and I shall therefore convict the defendant. In consequence of the gross character of the offence, I shall inflict the highest penalty the law permits me. Defendant is fined £10, costs (£4 8s) to be paid out of fine; in default, two months’ imprisonment. Further, the defendant will have to enter into recognisances to keep the peace for 12 months himself in £50, and two sureties of £25 each.
Mr Rowlatt asked that the ordinary delay of three days be allowed, as his client wished to appeal.
Mr Findlay submitted that the recognisances should be entered into at once, as there was no saying what mad act Hartstonge might commit during the three days.
His Worship concurred, and ordered accordingly.
James Hartstonge was further charged by Edward Donnelly that he did, on September 28 last, at Macraes, unlawfully disturb the congregation there assembled, by shouting at the said Edward Donnelly, “You are a scoundrel, a liar, a rogue, and a sweep,” during the progress of public worship, which he (the complainant) was conducting.
Defendant pleaded Not guilty, and Mr Findlay and Mr Rowlatt appeared for plaintiff and defendant respectively.
Mr Rowlatt submitted that this was the same case over again, and protested that his Worship had no power to hear it, as his client could not be again convicted of what was practically the one offence.
His Worship said he did not doubt his power to hear the case, but suggested that the full penalty having been inflicted in the previous case this one might well be withdrawn. Mr Findlay said this offence was against the congregation the offence already proved being that of assault upon the priest, the disturbance of the congregation being only what had led up to the previous charge. The congregation, he said, felt go strongly upon the matter that his client could not, in justice to them, withdraw. The case was therefore proceeded with, the evidence being substantially the same as that given in the previous case as regards the disturbance made by defendant in church. Mr Rowlatt submitted that his Worship could not convict under subsection 30 of section 3 of the Police Offences Act, because during the service, at the point where the interruption occurred, the religious exercises were broken off to discuss secular matters viz., finance.
Mr Findlay submitted that the wording of the act was clear, “assembled for divine worship,” and that Mr Rowlatt’s argument did not apply.
His Worohip thought the complainant was entitled to a conviction, but in consideration of the heavy penalty he had inflicted in the previous case he would not impose a heavy penalty in this one. Defendant would be fined 20s, with costs £3 12s, in default 14 days’ imprisonment.
During the couroe of the evidence it came out that James Hartstonge had been previously convicted, and had been bound over to keep the peace. Very intense feeling was shown against defendant in court, who during the hearing of the case could hardly be restrained, his Worship threatening several times to commit him for contempt of court.
Otago Witness , Issue 1927, 29 January 1891, Page 13.
PROCEEDINGS AGAINST FATHER DONNELLY.
At the Police Court, at Macraes, on Friday, Edward Donnelly,, of Palmerston, Roman Catholic priest, was charged before Messrs R. Ewing and A. D. Bell, J.P’s., with committing perjury at Nenthorn on October 22, 1890, by stating on oath at the hearing of an information laid by him against James Hartstonge that the said James Hartstonge was indebted to the Roman Catholic Church, at Macraes Flat, in the sum of £5 10s 9d, for moneys received by him on account of the sale of certain tickets, the proceeds of which sale belonged to the Roman Catholic Church at Macraes. Mr Rowlatt, of Naseby, appeared for the informant, and Mr Findlay, of Palmerston, for tbe accused.
Samuel M. Dalgliesh, resident magistrate, stated that he remembered an information heard at Nenthdrn on the 22nd of October last, in which Edward Donnelly was informant, and James Hartstonge, defendant. He produced the information in question, upon which there was a conviction. Edward Donnelly was a witness in support of the information, and was sworn by witness in the usual form. He remembered Edward, Donnelly saying, in crossexamination, “It was generally known by the congregation that the defendant owed for the tickets. He owed £5 10s 9d for the tickets.” He had those words down in his notes of the case. An objection was raised at that time to that matter being taken in evidence, but his ruling was that it was not relevant to the charge that was then brought against the defendant.
Mr Rowlatt: What was the time at which he alleged the sum was due?
Witness replied that he could not say definitely what the time was, but he was under the impression that the complainant in the action referred to some time previous when this amount j was in dispute between them.
Mr Rowlatt: Was it not the time upon which the proceedings were carried on?
Witness: No; it could hardly have been, because it referred to some time prior to that, when the dispute arose about the tickets.
Mr Bell: You have said that you ruled in court that the statement as to the £5 10s 9d was not relevant to the issue that was being tried?
Mr Bell: Would you consider it right to tell the bench whether, when you arrived at the decision in that case, you in any way took into consideration this statement of Father Donnelly’s about these tickets?
Witness: No; I was ruled entirely by the evidence that was then before the court with regard to the assault that the defendant had made upon the complainant.
Mr Findlay said if the question Mr Bell had asked Mr Dalgliesh did in no way affect his judgment, he should like to know whether any purpose could be served by proceeding further with the case. He did not suppose that his learned friend thought for a moment that a conviction could possibly follow if the statement was not relevant, even though it were absolutely false. The very root and basis of such a charge as the present one rested upon the relevancy of that statement, and when Mr Dalgliesh held distinctly that there was no relevancy in it, no possible charge of perjury could arise out of it. He submitted that the charge had collapsed upon the evidence of the last witness.
Mr Rowlatt: I am very much surprised at the evidence given just now. It is a question for your Worships to consider. Although the magistrate did not take this question into consideration, it is one be should have taken into consideration, as it was one relevant to the points but I am quite willing to be guided by your Worships’ opinion on the matter. This money that was alleged to be owing for these concert tickets was the basis upon which that information was laid.
Mr Findlay: What had the tickets to do with the assault committed upon Father Donnelly?
Mr Rowlatt replied that the assault took place over a dispute about the tickets.
Mr Bell said the bench were perfectly in accord with what Mr Findlay had stated. It was perfectly useless to continue the case. The evidence given by the magistrate was such as no man’s evidence could controvert. He alone knew the matters that led him to his decision, and he positively, said that he ruled that the statement with regard to the tickets was irrelevant to the issue, and the statement upon which the present information was laid he did not take into consideration. The justices had only to decide whether it was to the interests of justice that the defendant should be sent to a higher court, and they were of opinion that it would be travelling outside of their duty to send him to a higher court. From the evidence they had before them they were convinced that no conviction could possibly follow. The case against the defendant would be dismissed.
A CHARGE OF INSULTING LANGUAGE.
Edward Donnelly was then charged with using insulting language towards James Hartstonge in a public place to wit, in the schoolroom at Macraes, wherein public worship was then and there being carried on–by stating that the said James Hartstonge did nothing but malign and calumniate his neighbours, &c &c.
In this case the informant asked Mr Rowlatt if he was going to appear for him, but the latter replied in the negative and left the court.
After the information had been read over, Mr Findlay, who appeared for the defendant, said I wish to call your Worships’ attention to what I think a most impudent forgery. You will notice that the information is signed by Mr Hay, and that there has been introduced into it certain words, or rather a second charge, in the handwriting of a different person. Mr Hay has been spoken to about the matter, and he says those words were not in the information when he signed it. On the information that I have in my hands, and on that in the hands of your Worships, the same words occur, and in both cases the words are in the handwriting of the prosecutor. If Mr Hay did not sign both of these documents with the intention of including in them such a charge as they contain, they are both invalid, and consequently cannot be heard.
Mr Hartstonge said he would swear that the words were introduced into the information before Mr Hay signed it.
Mr Findlay informed the bench that Mr Hay was to have been in court, but he had not put in an appearance.
Mr Bell asked Mr Hartstonge if he wrote the words in question before he swore to the information.
Mr Hartstonge replied in tbe affirmative.
Mr Bell said: Then the bench must presume that he did, as Mr Hay was not present to contradict him.
Mr Findlay pointed out that there was no continuity in the information, and so far as he could see it was not intelligible. It was not clear whether the latter part referred to Father Donnelly or to Mr Hartstonge. He desired their Worships to read tbe information for themselves.
The bench having complied with the request.
Mr Findlay next submitted that the information was bad, and that no conviction could be recorded upon it. Their Worships would notice that the section of the Act under which the information was laid provided that the abusive language must be in a public place, and within the hearing of passers-by. It was, however, not alleged in the information that there were any passers-by, or that the abusive language was made use of within the hearing of anybody, then the most important element in the whole charge had been omitted. According to the act the language used must be calculated to provoke a breach of the peace, but there was no statement to that effect in the information. The most vital points, in fact, were absent, from the information, and the bench could not possibly draw up a conviction upon it.
Mr Hartstonge. said not only was the language calculated to provoke a breach of the peace, but it actually did do so.
Mr Bell observed that the information was as bad as it could possibly be. It did not follow any law. If it was an information for anything it was an information for slander. It was utterly impossible for the Bench to proceed for a moment upon an information like that which was before the court. If the Bench was to convict upon it, no gaoler would put it into force, and no conviction recorded in the books could possibly deal with such an information.
Mr Hartstonge: It is not my fault.
Mr Bell: I don’t know whose fault it is, but it is utterly bad, and the Bench cannot have anything to do with it. We won’t adjudicate upon it, and neither will any other justices. The information is dismissed.
A CHARGE OF INSULTING AND THREATENING LANGUAGE.
At the conclusion of the last case James Hartstonge, the complainant in that case, was charged with having on the 9th of January used insulting language towards Kerin Claffy, and threatened to take his life.
Mr Findlay, who appeared for the complainant, in opening the case for the prosecution, said Mr Hartstonge had unfortunately no occupation that was possible to the people of Macraes, and found little else to do but go about and abuse his neighbours. Father Donnelly, as the bench had discovered from the case previously before them, had suffered considerably, as well as many others, owing to the defendant, and Mr Kerin Claffy had repeatedly suffered in a monstrous manner owing to the same man. On the occasion in question the defendant rushed wildly into the complainant’s store and threatened him with personal violence, and was only withheld from committing such violence by the earnest solicitations of his wife. Mr Claffy retreated from his shop, and the defendant then continued bawling outside in the street the language used in the information, and also very much fouler language. He would now ask the bench to deal with defendant in such a way as to prevent him from being the pest and nuisance that he was. He was repeatedly defendant in cases of assault, and something must be done to protect the quiet and peace of the people of Macraes from him. He did nothing for his living, and was practically a parasite living on the people there.
When learned counsel was making his opening statement he was interrupted by the defendant stating that the complainant wished to withdraw the charge, and as the complainant did not put in an appearance in court he obtained permission from the Bench to go and fetch him. By the time counsel had concluded his address, defendant returned with complainant, and again announced that defendant wished to withdraw the charge. Complainant, who looked somewhat timid, and hung back, also informed tbe bench in a weak voice that he wished the charge withdrawn.
Mr Findlay then stepped forward and caught the complainant by the shoulder, and as he pulled him up to the table immediately in front of the justices, and away from the proximity of Hartstonge, he exclaimed “I call upon you to give evidence in support of the information.”
Mr Claffy, however, again intimated in a feeble voice that he desired to withdraw the charge.
Mr Bell said if complainant wished to withdraw the information it had better be withdrawn. It was apparently only a personal matter between himself and the defendant.
Mr Findlay observed that it was hardly a personal matter. The information was brought forward in the interest of all the people in the place. If, however, complainant refused his instructions to him, he was helpless in the matter.
The information was then withdrawn.
Otago Daily Times , Issue 10223, 4 Dec 1894, Page 1.
Mararoa s.s., 1381 tons Chatfield, for Melbourne, via the Bluff and Hobart. J. Mills, agent. Passengers: Misses Nimmo (2), Boyd, M’Evoy, Strachan, Luckman, Holloway, Bristol, Thomas, Moore, Flynn, Muir, Forrester, Trebblecock, Mesdames Hartstonge, Harris (2), Bristol, M’Evoy, M’Carty, Oliver, Messrs Luckman, Gunn, M’Evoy, Plunkett-Cloe Chamberlain, Moreau, Smith, Service, Beales, Williams, Bailey, C. Sattler, Hon. R. Oliver, Rev. Piercy; and 13 steerage.
Otago Witness , Issue 2510, 23 April 1902, Page 43.
HARTSTONGE.– On the 18th April, at Dunedin (after a long and painful illness), James, the beloved husband of Mary Hartstonge (late of Melbourne), aged 70 years. R.I.P.