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Colonial Cases

R. v. Tindall and Park, 1840

[assault at sea]

R. v. Tindall and Park

Supreme Court, Bombay
16 June 1840
Source: The Bombay Times, 15 July 1840

 

THURSDAY, JUNE 16TH.

CROWN  SIDE.

REGINA THE  QUEEN versus ROBERT TINDALL AND GEORGE PARK.

For assault and false imprisonment.

   Mr. Cochrane - Counsel for Prosecution.

   Mr. Leech - Attorney for the Prosecution.

   Mr. Howard - Counsel for the Defence.

   Mr. Bainbridge - Attorney for the Defence.

JURYMEN.

Mr. Thos. Smith

Mr. John Thompson

Mr. Murdoch McKenzie

Mr. Thomas Phillips

Mr. L. C. Moore

Mr. Cypriano de Mello

Mr. Jas. Lawless

Damother Luxamonjee

Mr. John Swanseger

Mr. George Smith Collett

Mr. Edwin Willm. Miller

Mr. Francis de Ramos

 

   Mr. Cochrane opened the case and stated that this was an indictment against the captain and mate for assaulting and imprisoning a young cadet of the name of Kane.  The facts of the case were short; these, that he Kane and three other young Officers sailed from England for Bombay on the 29th of December 1839. - After touching at the Cape they arrived in the Indian ocean, and on the 20th of May 1840, while at Dinner, the circumstances occurred which gave rise to the present indictment, -

   A young Officer of the name of Neale told the cabin boy to take away a plate on which was a piece of fat Pork. - Now (observed Mr. C.)  this Cabin lad had apparently an especial veneration for an ancient and approved axiom, the truth of which nobody would be hardy enough to dispute. - That fingers were made before forks and the lad to shew his approval of it - takes up the Pork with his fingers and throws it out of the window - On this the following chaste and classical language was heard to fall from the lips of the captain "you damned young whelps, I'll come and break the bloody heads of you." - Now it is not every one that can see the beauty of these expressions - nor is it immediately apparent whence he derived them. - A slight consideration will show the Jury when they were procured. - It is quite clear that he could have got them from no common people - nor could he have procured such from any of those who are met with in the ordinary walk of life - Not even an intimacy with a Baron or Viscount would have been sufficient to bestow upon him such gracious expression. - It must therefore inevitably have been an especial intimate acquaintance with Marquises and Dukes, that has gifted him with such felicity of diction. -

   But be this as it may - the observations fell strangely on the ear of Mr. Kane, who not being used to such polished society, proceeded to the deck and remonstrated with the captain on his applying such expressions towards them in the presence of his men. - The captain replied "D-n your eyes, I did not apply them to you, but to those who threw out the Pork."  Mr. Kane observed "that he certainly applied such expressions to them."  The Captain on this said "if you make any noise here I'll send you to your cabin." - Mr. Kane naturally irritated, observed "that he dared not do such a thing," the Captain then ordered him to be taken to his cabin.  The Mate then laid hold of Mr. Kane who broke from him and went near the captain.  - During this the other Cadets had come on Deck, and one of them observed to the captain that he certainly had applied such expressions to them - Mr. Young speaking to the captain said "These are the promises you made to my father, these are the manners you learn from the Lords and dukes whose company you boast of."

   Now if such evidence be true, you see at once gentlemen where this worthy captain has derived his accomplishments. - Whether it was this allusion to the great friends of the captain that stirred his bile cannot now be discovered, but certain it is, that he ordered Mr. Young to his cabin. - he was taken off by the Mate, who on returning observed "whose for it next - I think Mr. Kane should be the man."  On this Mr. Kane begs him to mind his own business and not to be interfering with him." - The captain tells Mr. Kane not to speak in that manner to his Mate. - Mr. Kane then requests then requests the captain not to allow his mate to interfere with his Passengers.

   On this the captain with an air which no Marquis, no Duke, and nothing but the Blood Royal could equal exclaims "Take him away." - On this the mate rushed at him, grapples him by the throat, while the boatswain has hold of his legs.  The Captain then comes and tears his hands from the rails by which he was holding. - On this the young lad indignant at such conduct gives the Captain a slap in the face.

   And here Gentlemen commences the un-English part of the business - The mate who is a man of herculean strength, while he was holding the young man, cries out to the captain - "hit him - hit him sir, don't be afraid," on which the captain strikes the boy three times on the face and blackens one of his eyes. - On this they tear him down to his cabin and confine him for sixteen days. - For this outrage the Defendants have been brought before you - and making every allowance for the due authority of the captain, which I am the last to speak disrespectfully of, such an outrage ought not to be committed. The learned Gentleman then proceeded to call the witnesses.

  Mr. F. A. C. Kane, called into court. - I am a cadet in the Hon'ble Company's service.  I came out in the "Earl of Durham," as a passenger.  - Robert Tindall was the captain, George Park the Mate, these are the persons (indentifying them in Court.)  The other cadets who came out with us were J. Miller, G. Young and W. Neale, we touched at the Cape and thence came to Bombay.

   I recollect an occurrence taking place on the 16th June last.  We were at trhe cuddy table at dinner.  Miller, Young, and Neale, were sitting with me, the captain had been sitting with us, he went on deck, dinner was not over at that time.  Mr. Neale desired the Cuddy boy to remove some fat pork from his plate - the boy instead of changing plates took the pork in his fingers, and threw it out of the larboard cuddy window, when it was thrown out, the captain called out from the poop "You d----d young whelps, I'll come and break your b----y heads."

   I had just finished dinner, and upon hearing the language, I got up immediately and went to the Captain, who was lying on the Hen Coop smoking, - and asked him, what he meant by swearing at us in that manner from his poop and before the men? He said, "D-n your Eyes, I didn't swear at you but those who threw the fat out of the window."  I told him he meant to apply the expression to us, upon which he said "D-n your Eyes, I'll send you to your Cabin, if you make a noise here on deck."  O told him, he dared not!

   About this time, my fellow Cadets came on deck, the Captain then desired his Chief Mate Park to take me down to my cabin, the Mate got hold of me by the arm, but I got away from him, one of my fellow cadets told the Captain that he did swear at us, and one of the other Cadets and Mr. Young said to the captain, "These are the promises you made to my father, these are the manners you've learned from Lords and Dukes, whose Company you boast of," the Captain ran at and caught Young by the throat, and said he would send him to his cabin.  I was sitting near the captain and advising him not to continue this disturbance, or he would get himself into a scrape, and added that he had better take care of himself, as I was perfectly aware of what I had done and said.  He replied, "this is quite enough, do not say any more about it."  The first officer, boatswain and carpenter were called aft, and Young sent to his Cabin.  Mr. Norman went up to Young an d said, he would go with him to his Cabin.  Mr. Norman put Mr. Young to his Cabin, and trhe Mate Park followed, when he saw Young put to his Cabin; he Park returned and said "who else is to be sent to his Cabin?" the captain  said, "They are all pretty quiet now," the Mate replied, "You had better send Mr. Kane to his Cabin."  Mr. Miller and Mr. Neale, Cadets, were present.  Mr. Edwards, a Steerage passenger was also within hearing.

   I made no disturbance.  I told the Mate to mind his own business and not to interfere with me - the Captain said to me in a sharp manner "Do not speak to my Mate," - the Captain then waived his hand and said, "take him away, take him away."  I said, I will not go to my Cabin.  The Mate called the carpenter, Boatswain and second Mate and threatened to put me in irons.  O got hold of the railing of the poop and was sitting on the Hen Coop.  I kicked out my legs to try and keep the mate off who was running in; the Mate Park, ran and caught me by the throat, the Boatswain had hold of one of my legs, the Carpenter was standing behind the Boatswain, but I do not know if he had hold of me or not, the poop was not four feet from the Quarter deck, the captain was struggling with me to get my hands off the railing.  They were taken off, and I succeeded at last in getting my right hand out of the grasp of the captain, and struck him a blow on his face.

   The Mate Park called out "hit him, Sir, Hit him, he hit you this time."  The Boatswain and Mate had hold of me, the carpenter standing behind, the captain struck me three blows on the face, they left a mark, and made one of my eyes black.  I was taken to my Cabin, the Chief Mate pulled me by my legs down the companion ladder.  I was forced in to my Cabin and kept there 16 days until we came into harbour.  I was not permitted to leave my cabin and the Mate Park threatened to have my door nailed up if I opened it again.  I opened it three times, he said I was not allowed to leave my Cabin. 

   I came out of my Cabin once, one of the Cadets said, there were breakers ahead, and that the captain appeared to be in a great fright; the Captain said his reckoning was 45 miles from land.  I went on deck, Neale, Young Miller and Edwards, a Steerage passenger were standing near the hen Coop.  I went up to them, the captain came on deck at this time, this was 10 or 11 days after my imprisonment.  The captain spoke to me and stared at me when he saw me on deck, and I said, "I took the liberty to come on deck as I heard the ship was in danger."  He waved his hand and said "not at all, not at all," and made signs for me to go down to my Cabin.  I went down.

   I had a small scuttle to my Cabin, there were two small windows in front of the poop, and a skylight to the Cuddy, thro' which the air could come; the Shutters to the windows were nailed up, they used to be open before my confinement, during my confinement t they were nailed up, one was opened the next day.  There was a Cabin boy, he is aged 18.  Hr was the only servant in attendance.

   Cross-examined by Mr. Howard. - I was told the Shutters were closed, I saw one of them closed.  I did not see the others closed.  It was opened the next day, I could not tell if they were nailed. You could not bell that unless you were on deck.  I was not allowed to come into the Cuddy.  I could see through the door, I opened it the next day, - I could not stand the heat in my cabin, - I got up in the middle of the night and opened it.  I found it so warm, because we were becalmed.  When I wanted to speak to the Captain, p- was immediately after I was taken to my Cabin, - I was going to ask him what I was sent to my cabin for, - when I opened my Cabin door in the night time, I did not go to see if the Shutters were nailed. - There was a skylight over the Cuddy, in line with a part of my cabin, - the door opened into the Cuddy.

   I am Seventeen years and six months old.  I'm a cadet, we are called Supernumerary Ensigns or Cadets; - I've left school for some time, twelve months before I went on board in December last, - I have not been at Addiscombe.  I was under a Tutor up to the time I left home nearly two months before I went on board.  Mr. Young is just seventeen. - Mr. Miller is not twenty. - Mr. Neale is not seventeen. - The Captain said he was tawny-two, twenty three, twenty four. - He had three birth-days on board, - not to me, did he say, he was more than twenty four, - he celebrated his birthday once in the Downs.

   We had no passengers of great age or experience.  I was never on good terms with the captain, I thought he was not a fit associate for any of us; he said, 'he had associated with Lords and Dukes - he had very often been in the habit of swearing at us.  It was a practice with him.  I am quite satisfied I never swore in return. - We might have laughed at him among ourselves, we never did it openly, none of the others mimicked him to his face. I don't recollect any instance in which he was mimicked to his face. - I called the Mate a numskull from my Cabin when I was forced in - there were no bad epithets used before it. - I say most positively I never used the expression "you d----d numskull." - I might have called to Mr. Miller from my Cabin.

   We called the ship Scarborough when the ship used to go on well, I used to say Huzza for Old Scar.  - I dare say, I said, Didn't I hit old Tindall a dig in the Chops. - I was in my Cabin. - I don't know if I said it to any one in particular. - I may have said this. - I had the door closed more than one day. - I could not bear to have my clothes on. - My Cabin was closed only the first day.  I was obliged to pass through the Cuddy, I was confined to my cabin, and therefore could not sit in the cuddy.  Two or three days after, a note was sent to Mr. Young to say if he behaved himself, he might leave his Cabin. - No such note was sent to me. - On the Sunday follolwing I was sent to my Cabin. - On the Tuesday the Captain sent a note to me to say, If I apologized to him for striking him and insulting his Mate, - I might leave my Cabin, but not otherwise. - I sent an answer to say, if I came on deck there would be another row, and I should be forced to my Cabin again. - The captain would have forced me. - I knew the captain well, - I have been on board his ship for six months. -

   When at dinner the next day, the captain gave the boy my dinner and told him to take it to me. - I know it was meant that I was to be kept in my Cabin about a month. - Before when Mr. Neale was confined to his Cabin, then the captain went to Mr. Neale, and told him he might leave hjis Cabin, "If he behaved himself;" knowing of these two instances and the captain's general character, I knew I could not leave my Cabin before the note came, - the captain forced me to my cabin, when I same on deck. - he stared at me, - and I s aid - what I have previously mentioned, - waiving to the companion ladder, as if saying, go down - I went. -

   There was a boy on board by the name of John Sedman, - we were in the habit of joking with this boy. - I did not admit him to any familiarity, - I used to joke with him now and then. - I did not lark with him.

   When the captain said "I think they're quiet now," he addressed the Mate, he said "I think Mr. Kane ought to be the next."  I told him not to interfere with me, he spoke of me in my presence to the Captain.  Any one would have been annoyed with the treatment, the captain spoke in as sharp a manner as I did.  I think the words were "don't speak to my Mate;" when I was laid hold of the Mate threatened to put me in irons, and shook his fists in my face.  I did not kick him before he spoke, he rushed in on me, saying over and over again, "We'll put him in irons." I kicked out and might have kicked high.  His words were not, "Sir, there are Irons in this ship."  If I called him Buffaloed Head, it was after I was imprisoned, not before.  I did not call from my cabin to mimick the Mate when confined.

   Re-examined. I have seen the Cuddy Boy in the Court to-day.

   By the Court. I and my companions may have mimicked the captain and Mate amongst ourselves during the voyage.  I have caught the captain listening to what we were saying, I can't say he came there to listen. - Witness here withdraws.

   W. A. Neale, Examined. - I am a cadet in the company's service.  I was a passenger on board the "Earl of Durham." I remember being at dinner on the 26th May.  I recollect something taking place that day.  I was at dinner. I had some salt pork and rice. I could get nothing else to eat\; the boy threw the Pork out of the cuddy window and I heard the captain make use of the language, before mentioned. (Here Witness so fully corroborates the statement made by Mr. Kane, that we do not consider it necessary to recapitulate it.)  Mr. Howard cross-examined this witness, but elicited nothing fresh.

   James George Norman (late 2nd officer) now employed on board one of the steamers, stated to the same effect and deposed that when the captain struck Mr. Kane, his head was down and his feet up, he was then carried along to his cabin, "the chief officer said, If you do not remain in your cabin I'll order the carpenter to nail the Door up."

   Cross examined by Mr. Howard.  I was not particularly good friends with the cadets, they never to my knowledge objected to me as fit company, they were not in the habit of bringing me Wine or Spirits from the cuddy.  I take my Wine like any other gentleman, I do not recollect being found tipsy one night.  I did not hear of it the next morning, certainly the cadets never brought me wine from the cuddy.  I don't know if Mr. Kane heard me refuse to take him to his cabin.

   By the Court. I never quarrelled with captain Tindall.  I came into his Ship with the intention of leaving.

   Here the case for the prosecution closed.

SENTENCE.

    Sir HENRY ROPER summed up with great ease, clearness and ability.  There appeared nothing in this case to justify the conduct of the defendant on which he animadverted severely.

   The Jury retired and were out more than an hour and returned with a verdict of guilty, but with a recommendation for mercy to the Court.

   Sir Henry Roper said, I confess I do not agree with you, the defendants' conduct was totally uncalled for, he appears to have turned on the cadets like a wild animal.  I am inclined however on your recommendation to pas a more [molided sentence than I had intended.  A great trust was reposed in you Mr. Tindall and it was not for you to indulge in blasphemous expressions.  You should have refrained from exercising tyranny, but you indulged in foul language, and when remonstrated with should not have taken any notice of it, but you went from bad to worse, you became violent, and while the prosecutor was held, struck him three times.  Of course no apology was due to you. 

   Had it not been for the recommendation of the jury, I should have put a heavy fine on you viz.  of 1000 Rupees with imprisonment for 14 days; as it is, the court sentences you to be fined 100 Rupees.  You Mr. Park ought to have mediated the feelings of your superior, but instead of mollifying urged him on, you are sentenced to be imprisoned one week and fined 50 Rupees.

   For the greater part of the above report we are indebted to the Bombay Gazette.

 

Source: The Bombay Times, 22 July 1840

   OUR contemporary of the Times, in his article relative to the jury that sat on the case of KANE versus TINDALL, has been misled as to the real facts of the case.  Our Contemporary says,

On the Jury retiring from their places, the Judge was informed that one of the jurymen had stated, that if they had imagined that the sentence would have been as severe as it had now, under its mitigated form, proved to be,  they would have acquitted the defendants altogether.

Now we happened to know that the whole of the matter is merely this.  After the Jury had delivered their verdict, the Judge said that he saw no grounds for their recommending the defendants to mercy, and here he was prevented from continuing his remarks, by the defendant's counsel, who requested his Lordship to give permission to the Defendants and their attorney to confer together.  One of the jury imagined from what had fallen from his lordship, that the Jury's recommendation was set aside, and with this impression, which eventually proved to be erroneous, he told one of the officers of the court, that if the jury had known that their recommendation would have been set aside, they would have found a verdict of acquittal.  This w as  said previous to the sentence being  delivered from the Bench, and not after, as our Contemporary has it, and although the individual, who spoke, used the name of the Jury, he did so unthinkingly and unwarrantably; his sentiments were wholly his own, the greater part of the Jury were entirely ignorant of his having said anything at all, and were not aware of the delinquency which they had fallen into, till informed by our mistaken Contemporary, who will perceive that all the legal juryism which he has poured forth after the passage we have above quoted, has been vainly expended - not vainly either, for it may serve as a beacon to other jurors, and enable them how to clearly and trimly, steer their course between the law and the fact.

# It does not appear to us that the inaccuracy here noticed, as to the time at which the Juryman made use of the extraordinary expression alluded to, in the least degree affects the tenor or the necessity of the remarks made by us on the subject in our last.  -  Ed. B.T.

 

Source: The Bombay Times, 22 July 1840

DUTIES OF JURYMEN.

   SIR, -I beg leave to draw your attention to certain important errors of time and circumstance which have, no doubt without your being at all aware of their existence, crept into a leading article in your paper of the 18th instant, headed 'DUTY OF JURYMEN," and to request you will do me the favor to notice the same in your issue of tomorrow.

   It is therein stated that "Captain Tindal of the Ship "Earl of Durham" having been found guilty of the charge of assault brought against him by certain of his passengers, the jury, in consideration of the provocation received, and irritation prevailing amongst the parties," recommended him to the leniency of the Court. The Judge stated that he should defer to the recommendation of the jury, although he happened to differ with them in opinion, and should pass on Captain Tindal and his First Officer a sentence considerably more mild than he had at first intended; and therefore proposed that Captain Tindal should pay a fine of Rupees 400, and that his First Officer should pay a fine of Fifty Rupees and suffer a week's imprisonment. On the Jury retiring from their places, The Judge was informed that one of the Jurymen had stated that if they had imagined that the sentence would have been as severe as it had now, under it's mitigated form proved to be, they would have acquitted the defendants altogether."

Such Mr. Editor is your case; and now permit me to state mine - first premising that I was in Court when the "extraordinary circumstance" referred to occurred.  The verdict of the Jury in this case was, "Both defendants guilty on both counts.  The Jury are however of opinion, that the captain had strong grounds of provocation for the measures he adopted, and therefore recommend him to the leniency of the Court.

   Sir Henry Roper then observed in addressing the jury, "I confess I do not agree with you.  The defendant's conduct was uncalled for, he appears to have turned upon the Cadets like a WILD ANIMAL."!!!  His Lordship here broke off into a conversation with the learned Counsel for the defence, which lasted for some minutes, and it was during this hiatus in his lordship's address, and BEFORE JUDGMENT WAS PRONOUNCED AGAINST THE DEFENDANTS, that one of the Jurymen observed to the Clerk of the Crown, that "had he thought the Judge would not have given weight to the recommendation of the Jury, the verdict of guilty would not have been given in."

   Now, although at the moment he may have failed to convey his meaning, the intention on his part must beyond all doubt have been to explain that their verdict of guilty, with the recommendation to mercy with which it was coupled, was intended to be given as a whole verdict, and that had he thought the recommendation  to mercy would not be considered a part of the verdict, that it would be separated from that other part, and the latter only taken as the verdict, he would not have agreed to the verdict as it was delivered. Such I should think must have been the object of the juryman in addressing the Clerk of the Crown in the manner he did, and if so, he was only guilty of a very common error of Judgment in having considered the recommendation to be a part of the verdict.

   It has been endeavoured to make a huge mountain of this little mole hill, but it would be well for those who are taking an active part in attempting to prejudice the minds of others, by endeavoring to give a false colouring to the transaction, had they never committed a more serious error than the Juryman alluded to, and I would have them "Hark back" to the proverb  "RISU INEPTO RES INEPTIO NULLA."

   The foregoing are the simple facts of the case.  I have no wish whatever to defend the error that has been committed, but I have a wish to see the case stated as it really occurred.

I remain, Sir, &c.  SPECTATOR.

P.S. The Clerk of the Crown having declined mentioning the Juryman's remark to the Bench.  Query, who could have performed this gratuitous piece of service?

# We quite acquit the juryman of intentional perjury: - but the above letter shows that neither SPECTATOR nor the subject of his defence understands the nature of a Juror's Oath. - Ed. B. T.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School