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Colonial Cases

France v. Lepissier, 1871

[shooting and wounding]

France v. Lepissier

French Consular Court, China
17 November 1871
Source: The North-China Herald, 22 November 1871

 

FRENCH COURT OF CONSULATE-GENERAL.

Shanghai, Nov. 17th.

Before COMTE MEJAN.

FRANCE v.  EMILE LEPISSIER.

   Defendant was charged with having, on the 2nd October last, fired with a revolver at and wounded Mr. H. A. Beer.  The charge was read by the Chancellor Rey.

   The Consul then said that the charge was one which did not involve a criminal procedure, and would be heard as a case of Police correctionelle.  He regretted to say that he had been unable to find amongst the French citizens here, any sufficiently impartial in the matter, as to allow of their sitting to hear the case with him.

   The witnesses were then requested to retire.

   Before the case proceeded further, Mr. LEPISSIER said he wished to make some remarks as to Mr. Beer's status before the Court.  The peculiarity of this affair was that the aggressor appeared as prosecutor - the reason of that being that he (defendant) had been unable to obtain information as to Mr. Beer's nationality, and consequently did not know before what court to sue him.  He (defendant) had applied to the French Consul to get information on this point, and had learnt that the Consul believed Mr. Beer was born at Lyons, but that he had refused to register him as a French subject, because he had not complied with the French laws with regard to conscription. Thorn on the 4th October, he (defendant) had again sent to thje Consul, asking him for advice as to what he should do in order to find out Mr. Beer's nationality; and again, on the 5th October, he had written to the Consulate stating that he wished to bring an action against Mr. Beer for defamation, and asking how he could secure information about his nationality, because the matter was of very great importance.  On the 6th October, the Consul replied that according to the treaties, foreigners in China could be sued before their respective Consuls - the natives of countries that had no treaties or no Consuls, could, with certain exceptions, as in the cased of the Greek Constantine, be sued before the Chinese authorities; that registration had been refused to Mr. Beer because he had not fulfilled the formalities and obligations necessary, at a fixed age, to qualify himself as a Frenchman; and that he believed Mr. Beer's family was of German origin, but he had no means of verifying that officially.  Defendant considered the only course that remained to him after that, was to address all the Consuls of nations represented in Shanghai.  He did so, asking each of them whether Mr. Beer was registered in their Consulate, as he intended to bring an action against him. After getting their replied he again addressed the Consul-General for France, saying he had made an enquiry at the other Consulates, the result of which went to show that Mr. Beer was not registered in the consulates of the Low Countries, the United States, Russia, North Germany, Spain, Portugal, Austria and Hungary, England, Denmark, Sweden and Norway, Italy, or Belgium.

   He thus found himself in the presence of an individual who had acted in a way derogatory to his dignity, besides having published defamatory articles against his honour, and he did not know where to address himself to obtain justice.  He did not think the case of Constantine formed a precedent here.  That man was a Greek, and his nation having no treaty with China, nor any Consul in Shanghai, the Chinese authorities could not interfere, but Mr. Beer for the 18 months that had elapsed since he landed in Shanghai had not claimed any nationality.  Besides, defendant  did not know in what respect it would benefit him to submit to a Chinese judge questions of defamation through the medium of the press, and of a legitimate defence  against an attack upon his person and his honour - these were things which had no place among Chinese ideas.

   He therefore came respectfully to beg that the Court would let him know definitely, what it could do for his protection, in view of his being a French subject, honorably known, against attacks, past and future, of an individual with no avowed nationality.  He ought to remark, however, that Mr. Beer had always wished to pass himself as a French subject, for in the 32nd number of the Nouvelliste were the words, "perfectly cosmopolitan as the spirit of the Nouvelliste may be, the foundation of it is French, and we have all the admirable susceptibilities of the nationality we represent. To-day the course of events has caused a numbed of details to spring into prominence last sight of at the beginning of the year." That phrase sounded false to the ear, and the concluding words were the equivalent of "to which we belong."   Was not this the subterfuge of a foreigner who undertook to represent the French nationality under a sort of assertion that he belonged to it?

   However that might be, it was asserted that Mr. Beer had endeavoured to register himself at the French Consulate, where he had been rejected, and that he was not registered at any other; he was, therefore, in the proper acceptation of the word, an adventurer, of whom people knew but one particular, that he came to Shanghai on board of a ship from Australia.  And even should he justify his identity and his pretended status as a Frenchman, it was not the less undeniable that Mr. Beer was a contumacious person, who ought to be in  a drill company in the French army - a fact which defendant formally intimated to the competent authority. 

   In these circumstances, he submitted to the Court that Mr. Beer, having been the aggressor in the conflict which occurred between them, and having concealed his nationality, or that in the event of being a Frenchman, he must be a deserter, he ought not to be admitted to give evidence upon his oath, but heard only if the Judge of the Court deemed it necessary that he should speak for its information.

   The Consul-General decided that Mr. Beer should be heard only as giving information to the Court.

   Mr. Beer was then called, and stated the facts of the occurrence.  He had been crossing the street when he met Mr. Lepissier, and asked him whether he would apologize for the expressions used in Le Progres, which he considered insulting.  Mr. Lepissier muttered some words which he could not catch, and at the same time, Mr. Beer saw in his pocket the stock of a pistol; the then lifted his stick and struck Mr. Lepissier with it, afterwards walking away towards his office.  Happening to turn round, he saw Mr. Lepissier aiming at him; he stood for a moment looking at him with his arms crossed when Mr. Lepissier fired, and finding himself wounded in the left arm, he went to Dr. Martin's dispensary.

   Mr. Arene, interpreter of the French Consulate, stated that he saw Mr. Lepissier pursuing Mr. Beer and that when they were a short distance from each other the former fired at the latter.

   Mr. Lepissier asked whether Mr. Beer could state what dress he (defendant) wore on that day, and point out in which pocket he saw the pistol.

   Mr. Beer said defendant wore a white waistcoat, and his pistol was in his left side pocket.  He saw Mr. Lepissier with his hand on the pistol as he came up.

   Mr. Lepissier objected that the statement was unlikely, as the position would be a very unnatural one.

   Bastien, police agent, stated that he was on duty on the day of the occurrence and saw Mr. Beer coming from Le Rue de Montauban and going towards his office, when he saw Mr. Lepissier follow him in haste, and when he came within twenty yards, Mr. Beer turned round and crossed his arms, sneering at Mr. Lepissier, who leveled his revolver and fired at him.

   Defendant objected that this statement was at variance with what Mr. Beer said, who did not allege that defendant had followed him.  He had in fact simply waited on the pavement after Mr. Beer struck him, and fired only when Mr. Beer turned round again.  Immediately afterwards, seeing two foreigners in the street, he addressed them in French, asked them whether they could witness as to then circumstances but they could not reply to him and he went on to his office.

   A man named Valoni was called by defendant, but said he knew nothing of the circumstances.

   Mr. LEPISSIER explained that this man came to his office about a fortnight ago, wishing to buy an English grammar, but he had told him that he did not sell books.  In course of his call the man then stated that he knew all about the affair on the 2nd October and had witnessed it.  Defendant was therefore very much surprised at the statement the wirness had made to the Court.  Mr. Lepissier then read a statement of the occurrence which appeared in the Echo du Japan, contributed from Shanghai, which he asserted gave a highly varnished account of it.

   Dr. VIDAL then came forward, butr his evidence was already in the hands of the court in form of a report, which was read; the wound was not of a serious nature, and had not incapacitated Mr. Beer in any way.

   Mr. LEPISSIER then read an elaborate defence, supported by numerous quotations from the columns of the journals and correspondence which had passed.  It was a matter of notoriety, he said, that his journal since its appearance had been the subject of attack by the Nouvelliste.  He would not quite every case, but he might say, that of the forty numbers published between 29th March and the 29th September, twelve contained bitter criticisms or violent diatribes against him.  To the violent attacks constantly   directed against him, he had always tried to reply in more parliamentary language.  The origin of the rencontre which brought him before the Court went back as far as the 11th September.  About that time he had been obliged, as on many former occasions, to repel calumnies of the Nouvelliste, in an article entitled "Case of Legitimate Defence."   The Nouvelliste had, without  doubt, its own reasons for applying to itself the last phrase of that article, and remarked, in its number of the 12th September, "Didn't you laugh a little readers, at seeing the Progres declare proudly in its last number, that all the world could look back into its past; parbleu! The entire world can look back into that of the Nouvelliste, and that will not take us very far, for we do not date further back than the month of December last."

   Mr. Lepissier proceeded to quote from a letter of the 21st September, in which Mr. Beer attacked him for questioning the honour of the conductors of that paper, and calling upon him to retract what he had published.  Defendant desired above all things that Mr. Beer should at last let them know, who these editors of the Nouvelliste were, whose cause he so warmly espoused; they would then see if his ultimatum had any raison d'être.  As to the insertion of Mr. Beer's letter, everyone would agree that it would have been refused by any journalist who had the least sense of his own dignity, or any self-respect.  Defendant went on quoting the Nouvelliste to show the evident intention there was to insult and menace him, and in which they spoke of getting quit of him, of shutting him up, of muzzling him, of getting rid of the mosquitoes, of ill-informed critics and of loafing dogs, and the article also spoke of clogs well applied - somewhere!

   It was with these ideas in his head that, on 2nd October, Mr. Beer found himself exactly in defendant's way; the latter had seen him coming from some distance, and passed at his side without seeming to notice him, and was walking quickly when Mr. Beer, after having passed him a few steps, returned and addressed him, asking an explanation of his refusal to insert the letter he had sent, which he had expected to see published in the Progres. On defendant's answer that he had no explanation to give, Mr. Beer beat him and went off, and it was under the infliction of that violence that defendant fired upon Mr. Beer, as he had previously warned the Consul-General he should so.  Defendant had found himself in a position calling for legitimate self-defence, and had therefore not hesitated to fire at his aggressor, who, whilst the pistol, a revolver of six chambers, of which five were loaded, was being presented, had already gone a distance of twelve yards.  It was important to consider that defendant did not trouble himself to follow his aggressor, and in fact he fired without looking at him, simply raising his hand with the pistol in it to the level of his diaphragm.  That shot was necessary to clear defendant's honour from the abuse Mr. Beer had heaped upon it, and inflected damage very differently serious from that done by Mr. Beer.

   Nothing indeed hindered the defendant from firing all the chambers of his revolver at Mr. Beer, if he had had the vile intentions which had been ascribed to him.  As for the action of Mr. Beer in coming towards him some seconds before he fired, as the Nouvelliste had taken care to explain, it was simply following out what that paper had said in its article on dogs - "The European has only to return to see them fly with their tails between their legs, with the cowardice which characterizes the species."  Evidently Mr. Beer thought by his attitude top put defendant top flight.  It only remained for the defendant to ask the Court to let him have the benefit of Article 306 of the penal code, which ran as follows:

There is neither crime nor fault when homicide, wounds or blows have been caused by the actual necessity of legitimate defence either of oneself or others.

   Judgment was then read by the Court at considerable length, condemning defendant in a fine of 50 francs, confiscation of the revolver and payment of costs of the Court.

 

Judgment.

   In the cause against M. Emile Lepissier, editor of Le Progres of Shanghai, residing in the French Concession at Shanghai, accused of striking and wounding.

   Facts -  he accused having accidentally met, on the 2nd Oct., 1871, M. H. A. Beer, editor of Le Nouvelliste of Shanghai, the latter went up to him to ask an explanation of certain matters, and on his refusal to give any, struck him a blow with a cane in the left cheek.  The accused then drew a revolver from his pocket and discharged it at M. Beer at a distance of about ten yards, wounding him in the left arm. On the same day, the accused presented himself at the consulate-General and made declaration of what had passed.  M. Beer also made a declaration the same day.

   On the 30th October, M. le Dr. Vidal, of the faculte de Montpellier, Chevalier of the Legion of Honour, commissioned by M. le Consul-General to examine M. Beer's wound, handed in the report which has been read.  The same day the Consul-General received the depositions of M. Arene, interpreter to the Consulate-General, and of M. Bastien, an officer of Municipal Police.  On the 10th November, 1871, M. le Consul-General issued an order, by which, seeing the impossibility of finding assessors sufficiently impartial, he would sit alone to judge the Lepissier affair. On the 12th November, M. le Consul-General issued an order in conformity with the provisions of Articles 37 and follolwing of the Law of 28th May 1836, and of his own order of the 10th of the same month, summoning M. Lepissier before the consular Court deciding in matters of police, which has been read. In terms of the summons of M. Rey, Chancellor of the Consulate-General of France at Shanghai, dated the 11th of the current month, the accused has been cited to appear at this hearing, to learn the penalties awarded by the law in satisfaction odf the acts above mentioned.

   And at this hearing the accused has presented himself and recognized the correctness of the facts contained in his declaration and that of M. Beer, as also in the evidence of M. Arene and of Bastien, which has been given viva voce at the hearing, the whole being conform to the précis of instructions.

   The Court, deciding as a Police Court of the first instance.

   In view of the précis of instructions above-mentioned, and the avowals of the accused - in his final defence; and whereas it follows, both from the charge in the cause and from the avowals of the accused and the deposition of the witnesses heard, that the said Emile Lepissier, editor of the journal Le Progres is charged and convicted of having, on the  2nd Oct., at half-past three in the afternoon, wounded, in the left arm, by a shot  from a revolver, M. Beer,. Editor of Le Nouvelliste.  Whereas the accused had been provoked by M. Beer, who had struck him a blow on the left cheek with a cane; and whereas the wound inflicted on M. Beer did not unfit him for work in the sense defined by Art. 309 of the Penal Code.

   Considering that if the accused cannot be justified in conformity with Art. 328, which is as follows:-

There is neither crime nor offence when wounds or blows were demanded by the necessity of legitimate defence;"

He is, however, excusable under Art. 321 of the same code, running as follows:

Wounds or blows are excusable if they have been provoked by blows or serious violence towards persons.

   Considering that M. Beer is not under the jurisdiction of any Consular Court in Shanghai; and that if Lepissier cannot be justified in taking the law into his own hands, it may still be regarded as an extenuating circumstance in this case that he had no means of obtaining satisfaction for injuries done him by M. Beer, without addressing himself to the Chinese authorities, and thus giving rise to an affair highly disagreeable to the European Community.

   In view of Art. 311 of the Penal Code, which says:-

When wounds or blows have not in capacitated for personal employment, as laid down in Art. 309, the guilty shall be punished by imprisonment of from six days to two years and by a fine of from 16 to 200 francs.

   In view of Art. 463, which says:-

In all cases where the penalty of imprisonment and fine are awarded by the Penal Code, if there appear to be extenuating circumstances, the Police Courts are authorized, as in case of renewal, to reduce the Imprisonment even under six days, and the fine under sixteen francs.  They may also award separately fine and imprisonment, and even substitute the fine for the imprisonment, unless in any case it may be below a correctional penalty.

   For these reasons, and in execution odf the said Articles, the Court condemns Lepissier in a fine of 50 francs and confiscation of the revolver.

   And in view of Art. 194 of the Code of Criminal Instruction which bears that judgment against the accused will condemn him at the same time in the costs, even in the case of a public prosecutor, the costs will be liquidated under the same judgment.  It condemns also to costs in the present instance, amounting to 28 francs, not included in the signification of the present judgment.

   So made, judged and  given in public audience, this  day, month, and year as above, and the President, and the Chancellor, discharging the duties of recorder, have signed the present judgment, after reading.

ARISTIDE REY, Recorder.

CTE. MEJAN, President.

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