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Colonial Cases

United States v. Ashley, 1890

[assault by police]

U.S. v. Ashley

United States Consular Court, Shanghai
Leonard, 6 June 1890
Source: North China Herald, 13 June, 1890

LAW REPORTS.
U.S. CONSULAR COURT.
Shanghai, 6th June.
Before Dr. J. A. Leonard, Consul-General and Messrs. Danforth and Dunning, Assessors.
U.S. v. ASHLEY
  Charles James Ashley appeared to answer charges of having, on the night of the 24th May, assaulted and caused actual bodily harm to Ki Shao-ting and Su Yu-king, and having unlawfully caused them to be imprisoned and detained.
  Mr. W. V. Drummond prosecuted, on behalf of the Shanghai Silk Guild; Mr. H. S. Wilkinson defended.
  Mr. Drummond, in opening the case, said the assault was alleged to have been committed at a fire which took place at an alleyway leading out of the Mafoo, near the old foreign cemetery, on the night of Saturday, 24th May. The complainants were members of a fire committee or voluntary fire brigade which was organised and supported by the Shanghai Silk Guild to assist in putting out fires. On the night in question the complainants attended with their apparatus, in the same way as they had been in the habit of attending fires for the past ten years, during which period they had always received cordial cooperation and good treatment from the foreign firemen. The complainants, as usual when they were attending fires, wore a special uniform, which was recognized by the police, who always considered its wearers as much entitled to attend the fires as any member of the foreign fire-brigade. The complainants were the first to arrive on the scene, and they were proceeding straight down the alley knowing the fire was there, when they were met by defendant, who shouted loudly at them and seemed very excited and angry. Before they had time or opportunity to do anything, they were attacked by defendant, who had in his hand one of the large trumpets used by officers of the Fire Brigade. From the description given by complainants, this was an article which could and did inflict actual bodily harm. First one of them was struck, and on putting up his hands to defend himself, being utterly ignorant of the reason of his attack or what he was wanted to do or not to do, the blow was repeated. The second complainant then came up and told defendant that the other man belonged to the Silk Guild; but defendant replied that he did not care for the Silk Guild, and went on hitting them with the trumpet. They turned and ran and at the entrance to the alley on of them fell down. Defendant then called out to the police to take them into custody. They were taken to the police station, where they were kept in custody for upwards of an hour without any charge being made against them.
  After being bailed out, they returned to the police station on Monday morning and were sent to the Mixed Court, where a charge was made against them by defendant of assaulting him with an axe or something of that sort. The charge was dismissed, and immediately afterwards they took proceedings against defendant in his own Court.  In conclusion, Mr. Drummond pointed out that complainants, by bringing a civil action, showed that they did not wish to obtain the payment of a sum of money, but to secure the infliction of some punishment for the attack upon them, and to obtain some protection for the future when they as volunteer firemen attended fires.
  Su Yu-king, called and examined by Mr. Drummond, said - I am a member of the fire committee of the Silk Guild and have been so for ten years. During that time I have been in the habit of attending fires in the settlement, both at foreign and Chinese buildings. There are about twelve members of the committee, and about as many coolies employed. The machinery employed consists of a truck with some extinctors containing a chemical fluid. The members of the committee wear helmet and uniform, with the words "Silk Guild" in foreign letters on the uniform, at fires. The whole expense is born by the Silk Guild, and the members of the Committee receive no reward for their services. During the last ten years I have always received respectful treatment from foreign firemen. The apparatus is only used to prevent the spread of fires, being too small to use at big fires. Sometimes foreigners advise us what to do. We never interfere with foreigners.
  I remember the night of 24th May and the fire which took place that night near the Mafoo. I heard the alarm given and attended the fire. I put my uniform on. I went with the truck, eight members of the committee, and ten coolies. The fire was in an alleyway, and I entered it, seeing flames in it. I met the defendant, who struck me with his trumpet. I retreated, and he followed me and struck me again, one blow hurting my hand. At the top of the alleyway I fell down. Defendant then gave me into custody, and a policeman took me by the queue and led me to the police station. Defendant shouted at me in the alleyway, but I do not know what he said, or why he assaulted me. I did not resist him. When I ran away he ran after me, striking me all the time. As I was running away from defendant I saw the other complainant coming. I did not see him struck. I received the blow on my hand when putting it up to defend myself. I was struck across the knuckles and was a good deal hurt. An axe was taken from me on the way to the police station. The other complainant was taken there at the same time.  I was bailed out and went back to the police station on Monday morning.  I was then sent to the Mixed Court where the other complainant and myself were examined by the magistrate, and the case was dismissed.
  Cross-examined by Mr. Wilkinson - I believe the Municipal Council levy a tax of Tls. 100 on the fire truck. There are two head men in the committee, the other complainant being one of them. If defendant ordered me to go away from a fire, it would be my duty to go away. On this occasion he did not tell me to go away but began to strike me.  I think he did not like the Silk Guild firemen to be at fires. I did not take my axe out of me belt at all on this occasion. Defendant struck me on the helmet and on the hand; the blow knocked the helmet off. If the fire was still burning while I was at the police station, it was his duty to be at the fire. It is not true that the defendant took the axe from me and put me out of the alley way.
  By the Court - At the time of the assault there was no other member of the Silk Guild Fire Brigade in the alley way. I was in the alleyway about a quarter of an hour altogether. When I went in defendant was there, and he immediately drove me out.
  Mr. Drummond here raised the question whether the witness was correctly interpreted in saying he was a quarter of an hour in the alley way. It was well known that the Chinese had no idea of divisions of time, and that they measured it by the time in which a man could smoke a pipe or eat a bowl of rice.
  The interpreter (Mr. Dzan Kit-fu) replied that the witness had said the time was actually a quarter of an hour or more. The Chinese divided the hour into quarters.
   Mr. Drummond - Well, how many bowls of rice could a man eat in the time?
  Interpreter -= It depends how fast the man could eat. (Laughter.)
  Ki Shao-ting, called and examined by Mr. Drummond, said - I am compradore to Bowet Freres, a member of the Silk Guild, and head of the fire brigade of the Guild. I have belonged to the fire brigade for ten years.  It costs the Guild about Tls. 500 a year to maintain. For about seven years the Guild used to pay the Council Tls. 100 a year, but two or three years ago there was some trouble with defendant, and since that time the Council has not collected the money. I am the man who had trouble with the defendant two or three years ago. On the occasion of the present assault the truck was taken along the Nanking Road to near the alleyway, where it was left, and the members of the fire brigade separated. I took an axe in one hand, and, followed by a coolie carrying one of the extinctors, went to the alleyway.
  At the mouth of it I met defendant striking the last witness. I told him the man was a member of the Silk Guild, but defendant said he did not care, and struck me twice. One was a hard blow with the trumpet, and if it had not been for my helmet might have broken my skull.  I heard him say, "I don't care Silk Guild. Get away." Then he chased us out of the alley.  Just before a policeman came up, defendant was trying to take away my axe, and then I let go, but I do not know whether defendant or the policeman took it. I do not know why defendant struck me. I was given into custody by defendant and taken to the Central Police Station, but I do not know for what reason. I think I was struck about ten blows, but only one of them was a heavy one. I did not resist and did not attempt to strike the defendant. After being bailed out I attended at the Mixed Court where the charge against me was dismissed.
  Cross-examined by Mr. Wilkinson - I have never taken orders from defendant, but I have assisted the foreign firemen in laying the hose.  If defendant asked me to go away from the fire I should go.  On this occasion he told me to get away. Whenever he meets me at a fire, he generally tells me to get out of the way. I do not know if the Silk Guild have permission from the Municipal Council to go to fires. There are some houses belonging to the Silk Guild near the fire, but some were in the alley. A policeman was standing at the entrance to the alleyway when I went in. I was carrying my axe in my hand because I knew there were some mat-sheds there.
  The cross-examination was not concluded when the Court adjourned, at half past four, till ten o'clock next morning.
.  .  .  .
10th June.
  The hearing of this case was resumed, Mr. W. V. Drummond appearing for the prosecutor and Mr. H. S. Wilkinson for the defence.
  Ki Shao-ting, in continuance of cross-examination by Mr. Wilkinson, said - I produce the helmet I wore, and in which I received the severe blow from defendant.  The blow raised a lump on my head, which I showed to the Inspector at the station. I cannot say how long it was while defendant was striking Su Yu-king and myself. I do not know if there was anyone else in the alleyway. The trumpet was about the same length as my axe (produced) but was not so formidable a weapon.
  John Black Cameron said - I am chief inspector of the Shanghai Municipal Police. The police have the duty of keeping order at fires, and at fires in the settlement they are usually under my orders.  I have been in my present position for 6 ½ years, and during that time have always attended fires in the settlement.
  Mr. Drummond was proceeding to ask the witness if he was familiar with a book, published in 1878, containing the rules of the Fire Commission, when
  Mr. Wilkinson objected, on the ground that it was only admissible to ask the witness what his instructions were, or to ask him to produce a book, if any, containing his instructions.
  After considerable argument, Mr. Drummond was allowed to proceed with his examination.
  Examination resumed - When I first came here I received certain verbal instructions from Mr. Penfold, the late superintendent, with regard to a number of Chinese who appeared in uniform at a fire. He told me they were organised by various guilds and hongs to assist in saving property, and he showed me a book in which there was a paragraph giving them permission to attend at fires. In consequence I have never since prevented them from attending. The book which he showed me is similar to the one produced.
  Mr. Drummond reads the paragraph in question, which set forth that, certain guilds having agreed to subscribe Tls. 100 per annum, if required, in consideration of which uniforms had been provided, it was agreed that members of the fire brigades of these guilds were to be allowed to work at fires without interference.
  Examination resumed - I have seen these men do good service at fires. They do not work directly ion the burning mass, but on the adjoining buildings I should say that it is useful work. Men in the guild uniform are allowed to salve property but coolies without uniform are often arrested for doing so. I was present at the fire on May 24th. I was coming along the Nanking Road in a westerly direction when I heard defendant's voice in the alleyway. I heard the words, "Those -------- fellows" and other words which I thought indicated him being angry. As I went into the alleyway I passed a Chinaman coming out quickly. About fifteen paces down the alleyway I saw defendant and a Chinaman holding an axe, defendant trying to obtain possession of it. There was no attempt on the part of the Chinaman to use the axe as a weapon, and when I came up, the Chinaman let go. Defendant told me the Chinaman had attempted to assault him with the axe, to which the Chinaman (the last witness) replied, "Nonsense."  In consequence of defendant's request, I gave the Chinaman into custody; the other complainant was arrested in the Nanking Road. I have not seen any trouble of this kind before, between defendant and members of the Chinese fire brigade.
  Cross-examined by Mr. Wilkinson - The extinctors are of use in wetting timber and preventing it from caching fire.
  By the Court - I have seen the Chinese firemen break down rafters at fires. When the complainants were given into custody, I told defendant he would have to go to the police station and make a charge against them, which he said he would do and which I believe he did.
  Mr. Drummond said he would admit defendant attended to make the charge as soon as he could after concluding his duties.
  Police Constable Breslan, No. 58, said - I attended the fire on May 24th, and was stationed at the entrance to the alleyway. When I arrived the fire was burning strongly; I saw the complainants arrive and pass up the alleyway. Defendant was about three yards or a little more down the alleyway when the first complainant entered. As soon as the latter got to defendant, he cried out, "Get out of here," and struck him over the head with his trumpet. The Chinaman turned round to run away; then the other complainant came up, and defendant struck them both several times with the trumpet, The blows were pretty hard. I saw nothing which I should consider provocation. One blow knocked off the helmet of one of them and he fell at the same time. When they were running out of the alleyway I heard defendant call out for them to be arrested.  I have been in my present position nearly six months. I have attended fires three times. I saw native firemen attend at one fire before. They had uniforms on.
  Cross-examined - I cannot say what the men were carrying. The hose was already laid.  There were some foreign firemen working at the fire some twenty or thirty yards further up the alleyway. I think the whole affair took four or five minutes.
  By Mr. Drummond - There was no particular noise where I was, but there was noise further up the alleyway where the fire was.
  Police Constable William Young, No. 43, said - I was at the fire on May 24th. Just as I came to the alleyway the two complainants ran past me, and I heard a foreigner call out, "Arrest those two men." I gave chase and arrested one of them and took him back to the alleyway, where defendant charged one of them with assaulting him with an axe.
  By Mr. Wilkinson -  I took an axe from the second complainant when I arrested him.
  John Ramsey said - I am an Inspector in the Municipal Police. I was on duty at the Central Police Station on the night of 24th May. I remember the complainants being brought in about twelve o'clock and handed over to me. I was told they were charged with assaulting Mr. Ashley. They were detained in custody until about one o'clock when Mr. Bowet bailed them out. Up to half-past one, when I left, Mr. Ashley had not attended to make any charge against them. They were both in full uniform except one, who had lost his helmet.
  Mr. Drummond said this was his case.
  Mr. Wilkinson, in opening the case for the defence, contended that no authority had been shown for allowing Chinese firemen to assist in putting out fires, in the existence of which great stress had been laid by the other side. He proposed to do what was in accordance with the practice of the Court, in calling the accused to give his version of the affair like any other witness.
  Charles James Ashley, examined by Mr. Wilkinson, said - I have been a member of the Fire Brigade since 1866. I am now chief engineer, and have been so for twelve years. The prosecutors are not members of the Fire Brigade, and have no authority to act as firemen. The guild men made an application to the Fire Committee, while I was a member, for permission to attend fires and salve property. That permission was given to them about eleven years ago.  I never saw them salving property.
  I remember the night of May 24h. I first saw the first complainant in a house near the fire with a coolie with an extinctor. He was hacking at a partition with an axe, and I told him to come out. He was not inclined to do so, and I turned him out and took his axe away from him and sent him out of the alleyway. There was no fire in the house and he was not doing any good there. Shortly after that I had occasion to go to the end of the alleyway nearest the Maloo, when I met two Chinamen coming in.  One was the man I had turned out previously, and the other was the second complainant. He had an axe uplifted, above his head, and came towards me in a threatening manner. The only word I could make out which he said was "Friend" and I thought he had come to take the part of his friend, whom I had turned out. I believe I struck the man who had the axe with my trumpet. I then dropped the trumpet and closed with him, and took his axe away from him. Then they ran away. I do not think there was time to strike him more than once.  - I struck him in self-defence, and used no more force than was necessary. Directly the fire was over I went to the police station and made a charge. Afterwards, at the Mixed Court, I asked one of the complainants to show me if he had a lump on his head, but he refused to do so. I produce the trumpet.
  Cross-examined by Mr. Drummond. - Only the Silk Guild men out of all the guilds have uniforms. As head of the Fire Brigade, I do not think the presence of the guild men at fires is of any use. That has been my opinion for many years.  I have never taken any steps to bring my opinion before the Municipal Council or other authority. I had some trouble with a member of the Silk Guild brigade a year ago last winter.  The Chairman of the Municipal Council said that the Guild men would be told that they were not wanted. I do not know if they were told.  For months afterwards they did not come to fires, but lately they have begun to attend again.  Since the beginning of this case a petition has been circulated to the Municipal Council, asking them to prohibit the attendance of all Chinese firemen at fires. On the night in question I thought the complainant was going to strike me with the axe.  He made no motion with the axe at me. When I took the axe away from the second man both ran away. I did not run after them.
   Charles Blondin said - I am engineer to the French Municipality, and district engineer of the French Concession. I have never seen the Chinese guild firemen assisting in extinguishing fires.
  Lewis Moore said - I am district engineer of the Fire Department of the English settlement.  I have belonged to the Fire Department since 1867. I have scarcely ever seen the Chinese firemen do anything at fires except take things out of houses. I do not consider that they have any right to take part in extinguishing fires.
  James Frederick Cheetham said -  I have been a member of the Victoria Fire Company for about three years. I attended the fire on the night of May 24th. I placed a truck at the entrance to the alleyway and proceeded to unreel the hose. While I was doing so I heard Mr. Ashley say to two Chinamen, who were standing in the way, "Get out of the way," and immediately afterwards I heard him say, "Arrest those men." The whole thing was over in about a quarter of a minute. It was impossible that he could have been belabouring them for five minutes.
  Mr. Drummond - If there had been any abusive language used, would you have heard it?
  Witness - I did not hear anything special.
  James Purdon said - I was present at the fire on May 24th. I received an axe from the accused, but saw nothing of the occurrence in question.
  At this stage the proceedings were adjourned till next morning at ten o'clock.
.  .  .  .
11th June.
The hearing of this case was resumed, Mr. W.V. Drummond again appearing for the prosecutors, and Mr. H. S. Wilkinson for the defence.
  Mr. Wilkinson called
  Alexander McLeod, who said - I have been Chairman of the Fire Committee for about fifteen years. An application was made by the Silk Guild, as I understand for permission to assist in saving native property at fires. As far as I am aware no permission was given to them to act as firemen.
  By Mr. Drummond - The Municipal Council admit their right to be present at fires as a salvage corps. I have heard objections to the presence of these Chinese firemen at fires as firemen. I think that if properly organised as a salvage corps they would be very useful.
  Mr. Wilkinson, in summing up the case for the defence, said there had been no desire on his part to raise questions as to the right of the guild to attend as firemen, he being quite prepared to let the case rest on its merits; but this question having been raised by the other side, it was necessary for him to deal with it, especially as the charge had been put in the same way as if the complainants had been officers assaulted in the execution of their duty. He submitted that, as to the alleged assault, the defendant's story was the right one; and there was nothing in the evidence to contradict it, except the statements of the complainants themselves.  The struggle which the witness Breslan described as lasting some minutes was in all probability the struggle between defendant and Ki Shao-ting for the possession of the axe, and not a struggle during which the complainants were being belaboured with the trumpet. The whole charge was brought to "save the face" of the Silk Guild.
  Mr. Drummond, in summing up the case for the prosecution, said that the minor inconsistencies in the evidence were very easily to be accounted for  by the fact, which was well known, that when persons, however truthful, were asked to give accounts of a particular circumstance, some time after it happened, those accounts were certain to differ in some points; and therefore it was  not to be said that one witness was truthful  and another was not because their stories differed to a slight extent. He submitted it had been shown that the defendant had no power to prevent these men from attending fires, and therefore it was not in the exercise of authority that he drove them away. If it had been Mr. Ashley's opinion for a long time that these men did no good service at fires, it was clearly his duty to put that opinion in the shape of a petition, which had only been brought forward since this case began. Instead of this, he had taken the law into his own hands.
  After a consultation lasting about a quarter of an hour, in private, with the assessors, the Consul-General read the judgment of the Court, as follows:-
  It is the judgment of the Court, in which both assessors agree, that the defendant Charles James Ashley is not guilty of either of the offences  charged in this complaint, and that he be honourably acquitted. It is further adjudged that the plaintiffs pay the costs in this case.

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