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Colonial Cases

R. v. Da Silva, 1871

 

[shooting]

R. v. Da Silva

Portuguese Consular Court, Shanghai?
10 May 1871
Source: The North-China Herald, 12 May 1871

 

PORTUGUESE CONSULAR COURT.

May 10, 1871.

Before H. P. Hanssen, Esq., Acting Consul General,

And HONMORATO JORGE, D. A. SILVA, Assessors, M. L. Pereira, Interpreter.

REX. v.  A. A. E. DA SILVA.

    Mr. EAMES appeared for prisoner.

   Mr. L. A. TAVARES, prosecutor, read the charge as follows:

   In the name of His Most Faithful majesty the King of Portugal, I charge Alexandre Amador Eca da Silva with having, in the public street of Shanghai, on the 28th day of April 1871, fired a loaded pistol at the person of Vincente P. Fonseca with intent to do him grievous bodily harm.  I therefore request that he may be dealt with according to law.

   His Honour - You have heard the charge against you read, what do you say.

   Prisoner - Not guilty.

   His Honour, remarking that as there was no trial by jury in Portuguese law he had requested the attendance of assessors, the prisoner's counsel, directed that these should be called. Two were objected to by the prisoner, but those stated above were assented to by him and were declared by his Honour to be sufficient in number, and duly sworn to a faithful discharge of their duty.

   The first witness for the prosecution was:

   Mr. V. P. FONSECA, who, s worn, stated - I know the prisoner.  On Friday 28th April last I was summoned before this Court on a charge of assault which was not proved; and after going out I asked the defendant whether he was author of a slanderous squib and demanded an apology.  He asked me what I had to do with that, and I then whipped him.  He then took a revolver and fired at me.  The first shot missed, the other five lodged in my body - one in my left arm, two in the wise, one in the breast and one a little above the navel.  After he had finished firing prisoner threw the revolver in my face.  He was then arrested and I was taken to the Hospital.

   Cross-examined by Mr. Eames - I said that I whipped the defendant.  I produce the whip.  I was alone during the deed, but had not been waiting but a couple of minutes.  At the gate I waited with a friend for prisoner to come put and I knew he was inside.  There was no party of us - there were two or three of my friends - Messrs. Braga, Xavier and Carvalho.  They were aware that in case I did not get an apology I would whip da Silva.

   Mr. Eames observer this showed premeditation of an attack.

   Witness continued - I was charged with assault with another friend.  I knew that other friend intended to commit the assault before he did so.  It was after the first blow I gave him that prisoner drew the revolver.  I saw him draw it.  He went backwards at the same time and I struck him again.

   By the Court - The prisoner did not warn me that he was going to shoot.  I am not yet able to use my left arm, nor have I returned to my employment.

   R. H. GORE-BOOTH, sworn, said - I was standing upon the Bund in front of Messrs. Adamson Bell's, talking to some gentlemen, and suddenly two gentlemen appeared, one flogging the other with a whip. They went about half way across the Bund and the defendant, who was being flogged, drew a revolver and fired several shots at the man who was flogging him.  I identify the man as Mr. Fonseca.  After the first shot was fired the flogging still continued, and during the whole time.  I could not swear to the number of shots, I think there were four or five.  The defendant then threw the pistol at the other man, and suddenly they separated and two men came and took the defendant away.  All this happened I believe on the 28th of April.

   By Mr. EAMES - I only saw the two coming out, and defendant guarding his head with his hands and backing out.  I think I saw 15 or 20 blows given before the pistol was fired, the flogging being as hard as possible.  After it was over, I saw defendant with his face cut.  I saw no one aiding or interfering, though there was a crowd looking on.  Mr. Fonseca walked off, and never fell at all.  I was looking when the pistol was first fired, and the defendant backed at the same time.  I was about 15 yards off.  I did not hear him say anything before he fired.

  By the public prosecutor - I said I though I saw Mr. Fonseca walk off.  I did not see him fall.  I saw him walking about outside afterwards.

   By the Court - I did not see any Portuguese whom I could tell were concerned.  I saw a crowd, but no interference.  I can't remember who were there of Portuguese.  I should think prisoner was struck 15 or 20 times as an approximation to the rate at which the blows were falling, and it was a regular riding whip like the one produced, the lash end of which was used.

   W. E. T. BIGSBY, sworn, said. - I know prisoner.  I was standing at the corner of the road before Messrs. Adamson Bell's on the day on which this occurred, the day after the 3rd of the races.  I saw one Portuguese gentleman go up and speak to Silva, and then he commenced striking him over the head, and neck with a stick of some kind.  Mr. Silva then produced a revolver and fired at him.  After he had fired, Mr. Fonseca still went on striking, and Mr. Silva then fired four or five times.  After Mr. Silva had fired five barrels he took the pistol by the barrel and flung it at Mr. Fonseca, striking him in the face so far as I could see.  Mr. Silva was then taken in charge and brought in here.

   Cross-examined by Mr. Eames - I have no idea how many blows were given before the pistol was fired, but it might be two or three.  I saw the pistol drawn, but heard nothing said.  I was within about 30 yards.  When I first saw them they were both arguing together, and after the first blow Silva retired.  I did not notice if he was defending himself with his hand.  There appeared to me to be from 5 to 6 other Portuguese gentlemen standing close round, but I did not know them.  I saw the pistol thrown and the whipping was still going on at that time.

   By the Court ---I did not see any Portuguese who seemed to be interested, except that they were standing near.  Prisoner rehired slowly, step by step.

   P. M. CARVALHO, sworn, said - I was present on the 28th of last month in the case of assault which Mr. Silva brought against Xavier and Fonseca.  As soon as this was over I went out with Mr. Fonseca, and we were standing at the gate when Mr. Silva came out.  Mr. Fonseca asked him a question, at the same time taking out a paper and asking if he was the author of the squib.  I did not hear Mr. Silva's answer, but immediately after Mr. Fonseca made use of a riding whip which was in his hand.  Mr. Silva defended himself by drawing a revolver out of his pocket, from which he fired four or five consecutive shots.  I believe I was nearest the two parties, and seeing my friend in danger went to his rescue with the intention of separating them.  I must say if others who were present had done as I did the result would have been less unpleasant for both parties.  I thought Fonseca was shot dead.  He was taken to Hospital.  There we found three balls - two in his body, and one fell down as we were taking off his clothes.  One was lodged in his left arm and was extracted afterwards, and the other did not pierce the skin but there was a mark on the breast.

   Cross-examined by Mr. Eames - I had a previous knowledge that Mr. Fonseca was meditating the flogging, though I did not advocate it.  Mr. Fonseca came to Court in a trap.  This is not a trap but a riding whip.  I understood he came to do the same aw Me. Xavier dir - thrash Mr. Silva.  I did not see where Mr. Braga and others were, who had been present at the case and were standing about.  We had no conversation with them.  I cannot venture to say if they knew of the thing before I interfered to stop the quarrel.  When they were struggling together, and when I went near them, Silva said two to one was not fair, and as my life was also imperilled I stood back.  They were struggling together, and Fonseca using the whip while Silva was firing.

   By the Court - It was after the firing commenced, but whether two ort three shots had been fired I do not know, that I tried to separate them, and Mr. Silva said two to one was not fair, as he thought I was coming to help Fonseca.  I accompanied Fonseca to the Hospital in a trap.  He was able to walk into the Hospital himself.  Before the assault I did not see Braga or Xavier speak to Fonseca.  I did not notice where they were standing.  I was the only one standing by Fonseca.

   L. H. STODDARD, sworn, said - I think it was on Friday the 28th of last month, between 10 or 11 in the morning.  I was on the Bund opposite Messrs. Adamson's, and my attention was attracted by a scuffle going on in the street between two Portuguese opposite Alfred Dent & Co.'s hong.  Mr. Silva was one of those engaged, the other I did not know, but he was thrashing Silva about the head with a cane or whip.  I could not swear who he was.  I saw Silva fire three or four shots at Mr. Fonseca, or whoever it was, and directly afterwards I saw him make a motion to strike or throw the revolver at the other man.  Directly after that I saw Silva step back, and heard him say he considered it cowardly.  What he meant by that I don't know, unless it was that the other man was thrashing him after he had discharged his revolver.  There were two or three rushed up to Silva, caught hold of him, and marched him into the compound here.

   Cross-examined by Mr. Eames - I said I thought the expression "cowardly" was used by Silva because Mr. Fonseca was striking, though I was rather surprised to see Mr. Fonseca able to strike anybody.  I only saw the two at the time, but there were several others standing about the gateway at a distance of perhaps 15 to 20 feet.  I can't say whether they were friends of Fonseca.  I saw nothing to indicate that.  My attention w as called to the scuffle, and some blows were struck before a shot was fired.  My first impression was that the one man was caning the other as fast as possible.  Silva seemed rather to hold his ground, cocking and firing the pistol as fast as he could, but before firing I can't say how  he was doing, whether retreating or not.

   By the Court - I could not recognize Fonseca's weapon, and do not know whether it was a whip or cane.  It was one or the other, and my impression is it was a whip.  Which end of it was used I cannot say.

   INSPECTOR FOWLER, sworn, said - A revolver was given in charge to me by a constable, but was taken to the jail and then brought back again to the station.  It was loaded in one chamber, and I afterwards examined the cartridge.  It ought to have caused death - it was a fair sized patent cartridge.  I produce it, the one I received at any rate from the jail.  I believe the cartridge produced to be the ordinary charge for the revolver.

   L.  S. LITTLE, M.D., sworn, said - I recollect Mr. Fonseca being put in Hospital some time last month.  He had one wound in hjis arm and three slight ones in his body.  I do not remember the date.  I extracted one bullet, that in the arm the same day, and found three others in his clothing.  The wound in the arm was not dangerous.  Three of the bullets had struck the man's body but did not penetrate, perhaps four, but of three I am quite certain.

   By the Court - The bullet in the arm had penetrated and lodged behind the bone, being partially flattened against it.  The other marks were, one on the abdomen, three on the chest, on in front and two on the left side.  One of them had broken the skin, the others had merely bruised it.  The wound in the arm is not likely to cause any permanent injury to the use of the limb.

   By Mr. Eames. - I am not quite sure whether there were three or four balls struck the body, but four came into my possession.

   The Counsel for the prisoner having introduced his line of defence called

   F. DE CASTRO MONTEIRO (M. L. Pereira acting as Interpreter). - About 4 in the afternoon on 25th April I was walking with Mr. da Silva, when we met Mr. V. P. Fonseca and Mr. Xavier, who came out from a small alleyway.  Mr. Xavier spoke to Mr. da Silva, and took a whip and hit him.  They both had whips, but Mr. Xavier struck with the one which he brought with him and Mr. Fonseca stood by.  Mr. Xavier took a paper from his pocket and showed it to Mr. da Silva, asking if he was the author of a certain squib.  Mr. da Silva said he had nothing to do with it, and Mr. Xavier said he would flog him if he would not give him an answer.  Mr. Silva said he was not ready to strike.  He too had a stick in his hand.  I met Mr. Braga about the 26th or 27th and spoke about the affair.  Mr. Braga said that Mr. Silva was one of those who composer the squib, and that if Silva did not settle the affair he, Braga, with Xavier and Fonseca, would risk their lives to see it put through.  There was a disturbance on thr 28th of last month which I saw.

   On that day, after the cases in Court, I went out with several gentlemen - Braga, Fonseca, Xavier, Carvalho and some others.  When they were going out they talked about beating da Silva. I did not hear any one of them say he would do it himself.  Mr. Fonseca and Mr. Carvalho went down to the gate and outside, seemingly anxious to have a row.  These two were on one side of the gate, and Mr. Xavier and Mr. Braga on the other.  Mr. Silva was inside the Consulate.  Before Silva came out Mr. Fonseca went and put a stick he had into his carriage and took another one out.  He said Silva was long coming but he would wait for him.  Mr. Carvalho said "Oh, yes, the man is a little late."

   I think it was about half-an-hour before Mr. Silva came out, and Mr. Fonseca went up and asked him if he was the author of a squib.  Mr. Silva said he had nothing to do with it.  Then Mr. Fonseca lifted the whip and Mr. Silva stepped back.  They were both about the same distance from the gate, I could not say how many times Mr. Fonseca struck before the pistol was used, but I think 15 or more.  I could not see the pistol drawn, but Silva was defending his head with his left hand and had the revolver in his right.  When Silva fired his face was all bloody, and he warned Fonseca before he did so.  Fonseca still kept on striking, but I could not say with which end of the ship.  I saw Mr. Fonseca four or five days afterwards driving himself in his own carriage.  Fonseca and Carvalho were outside the gate together, and when Silva was attacker he could not retire again into the compound, because the gate was stopped by them.

   By the Court - Silva had just passed outside the gate when the first blow was struck.

   F. C. SIBBALD, M.D., sworn, said - I saw defendant on 28th April about 4 or 5 o'clock in the afternoon.  He was still rather excited, and his face had evidence of his having received a number of blows.  There was a severe cut in the right cheek, one on the left extending across the nose, with several welts, and one or two bruises on the back of the head.  There was also another mark on his left arm, and he said he had received some others.  Those on the face might be produced by the light end of the whip shown me, but not those on the back of the head, which must have been caused by the handle. There was nothing else noticeable.

   ANDREW COULTER, sworn, stated - I am chief constable and keeper of H.M.'s jail.  On 28th of last month defendant was brought to the jail.  I was there and saw him.  He was very much excited and was battered about the face.  He had one large cut on his left cheek, showing a mark now, from which blood was running freely, and he was severely bruised on the head and left arm.

   L. D'ESCARNACAO, sworn, stated _ I am in Russell and Co.'s.  I was present when this quarrel occurred, but I am not sure of the date.  I noticed no one at the gate, but two or three standing near the water.  I saw the second blow struck.  With very great difficulty Silva could have stepped back, Mr. Fonseca being nearest the gate.

   Mr. EAMES then summed up for the defence.  As he had already remarked the defence was justification.  The facts were pretty well settled, and the evidence between the witnesses for the prosecution and those for the defunct was, as he anticipated, a little conflicting.  If there was such a thing as justification by self-defunct the present was a case of it.  One assault had already been committed on the defendant by a friend of Mr. Fonseca's, and the latter had also threatened to repeat it, a fact which defendant heard.  The learned Counsel believed that the defendant had even come to this Consulate to ask for protection, which was refused, his honour the Consul naturally supposing that nothing so extreme as had really happened here would be perpetrated.  Defendant also stated that he had applied to the police for protection, but unfortunately Mr. Stripling was not present to testify to this.  The police could not afford defendant special protection, and he was left to protect himself, against threatened attack.  He had therefore carried a pistol, not that he was by any means bloodthirsty, as w as very well shown by his refraining  from using it till he received a number of blows; and this was also rendered tolerably clear by his warning to Fonseca that he would use it.  As to the premeditated character of the attack, Mr. Braga and several others, mentioned by one witness, said they were willing to risk their lives to thrash Mr. da Silva; and they waited for him, really lying in ambush, to carry out their purpose.

   When Mr. da Silva came out Mr. Fonseca commended beating him about the head and neck, cutting his face, while he tried to retire and, at the same time, to fend off the blows with his left hand, before using his revolver.  And when he did draw the revolver he seemed to have taken no aim, but rather fired his first shot in order to drive Fonseca away from hi, and not with the intention of doing him harm.  In that he did not succeed, however, and if the Court said that defendant should not have continued firing the revolver, that was answered by saying that the striking still continued.  Mr. Fonseca still continued to beat the defendant, no such formal beating as one man inflicts on another to disgrace him, but a very severe beating; and it would appear also that Mr. Fonseca had changed the stick end for end, for Dr. Sibbald said the wounds on the head could not have been inflicted with the lighter end.

   The law on the case was very simple, though, as generally happened, it might seem difficult of application.   The learned Counsel quoted one case where a man happened to e standing on a sidewalk, when another, younger and more powerful, offered to strike him.  The man threatened at once drew his pistol and shot the other dead, and was acquitted because, though he had not been struck, if he had turned round to leave the spot he might have exposed his back to the blows of his assailant.  In the present case the defendant must either have turned round, and so received the blows on the back of his head, or been holding it so low that he could take no aim while shooting.  The learned Counsel did not know the Portuguese law, but he had no doubt that the law of civilized countries was much the same.  From reference to it with which he had been favoured, and from Archbold's Criminal Practice page 557, Russell on Crimes 1027, and other authorities, he quoted opinions to show that the position of the defendant condoned the act for which he stood charged.  He showed also that the law of self-defence was founded upon the law of nature, to repel force by force, and not by any law of society.  To repel an attack in self-defence as the defendant had done it was necessary that the  danger should be personal and imminent, and that in this case grievous bodily harm might have resulted to defendant, a result which he had every reason to suspect, must be obvious to the Court.  Even with the small end of the stick, defendant might have been maimed for life, might have been deprived of an eye; and it did not seem reasonable that a man should stand and be beaten until he was wounded as much as defendant had been, and even be perhaps killed, as he might have been by one of the blows which he got on the back of his head.  If the defendant had been able to escape without difficulty it would have been different, but that was quite impossible, all there were his enemies, and it would have been a very risky thing to have run away while they were all about him.  The facts showed that the defendant was aware he was threatened, to what extent he did not know, but judging by the determination expressed by Mr. Braga and his friends, he must have been seriously so.   Not having been able to get protection assured him. He armed himself, and drew his revolver without intention to kill, though it was quite possible that any of the bullets might have inflicted a mortal wound. 

   The learned Counsel thought there could be no doubt that the defendant did yield, and questioned whether any gentleman in that Court would have yielded more, when he had received, as some said, 15 blows, before he fired the pistol.  Having too drawn the pistol he, as Mr. Montero said, warned Mr. Fonseca that he would shoot him.  And Mr. Fonseca saw him draw it and still went on beating him.  There was no reason to doubt that the defendant would have fired if Mr. Fonseca had left off beating, indeed his conduct showed that he would have done so.  The testimony for the prosecution and defence required no comparing for it was very consistent, and the few points where it conflicted were of such a character that the two sides could easily be reconciled. 

   If the Court expected the defendant to stand beating till his assailant was tired out, and to take his redress at law, he feared he would have to say that the law could have done nothing adequate.  The striker too continued to go on even after the pistol had been flung at him, and till he was taken away by some of his friends.  He would leave it to the Court to consider what legal redress could have been given the defendant after he had had an eye knocked out or been maimed for life - it could not have been very satisfactory.  Defendant's shooting therefore was no wanton attempt upon life, but was amply justified by the law of self-defence; and even if the Court should find the defendant guilty it should also judge that a very nominal punishment was necessary.

   The Court was then cleared, and re-opened to the public in about half an hour.

   His Honour then addressed the defendant as follows: - I have considered the evidence brought against you, and have also weighed the remarks which have been made on the case by your Counsel, Mr. Eames.  I have been assisted in arriving at my conclusion by the aid of your countrymen, and the opinion which we have come to is, that you are guilty of the charge of shooting and wounding one V. P. Fonseca with intent to do him bodily harm.

   The defence set up by your Counsel is, that you were assaulted first, and that what you did was done in self-defence.  We cannot find that you have acted in legitimate self-defence; we think that by carrying a loaded firearm about with you, you first of all contravened the laws not only of the Settlement but of your own and every civilized country.  Your doing so shows that you premeditated making use of that arm in case you were attacked, as the event proved.  The weapon appears to have been loaded in the usual way such arms are loaded to carry out the effect for which they are made.  It does not appear that when you were attacked, you tried to return the blow in the way it was given you; you held up your head it is true, but instead of endeavouring to wrest the whip from your assailant you drew the pistol and fired at him.  You did not only fire once, but continued doing so, until the weapon was as you thought, quite discharged.

   I consider therefore that you have greatly exceeded the legitimate means of self-defence, and in this view my two Assessors concur.  I shall therefore proceed to pass sentence upon you, taking into consideration the fact that you were assailed first, and I pronounce sentence, under Articles 253, 370, and 378 of the Criminal Code of Portugal, that you be imprisoned for three months in the Consular jail of Shanghai.  It is, however, my duty, in the interests of the public, and the better to prevent the recurrence of such an affair, endangering human lifer, to add a condition to that penalty.  Before the expiration of your sentence you must find two sureties in $500 each for your future good behaviour for two years, in default of which you are to be deported from China to Macao.

   Mr. EAMES asked if there was any appeal from this sentence.

   His Honour said if defendant's counsel thought the sentence not according to law, and as Macao was so near, he was at liberty to appeal there.

   Mr. EAMES would then give notice now that it was his intention to appeal.  He supposed it would be of no use applying for the liberation of the defendant on bail pending the appeal.

   Mr. HANSSEN could not grant this.

   The defendant was then removed and the Court cleared.

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