ASSAULT. David Norton and Patrick Driscoe were charged on information with having, on the 7th April last, feloniously and maliciously assaulted one Richard Norton, broken his right leg, and inflicted upon him grievous bodily harm. They pleaded not guilty. Mr Graves appeared for the prisoners.
The Solicitor-General opened the case, and called Richard Norton, who deposed: I am a blacksmith, and resided at Bothwell on the 7th April last. I was working as a journeyman for my uncle, David Norton. I went to him on the Saturday afternoon to ask for my week's wages. I had a dispute with him about the amount. He ordered me out of the house. I would not go. Driscoe then came to put me out of the house. I resisted him, and then Norton came, and the two got me down in the yard. David Norton went to a wood heap a few yards away, got an axe, and struck me in the leg with it. Driscoe was then holding me down. I said, "David, you've settled me." He replied "Yes I think that's cooked the ______, let him go." They left me then, and I managed to crawl outside the yard on my hands and knees. I had been drinking during that afternoon, but I knew what I was doing. I lay out outside the gate for half an hour or more before anyone came to my assistance; at last my wife and some other persons came, and I was taken home in a wheelbarrow. Dr Ewington was sent for. My leg was broken below the knee in the thick of the leg.
To His Honour: There was a struggle when I was thrown down. Driscoe beat me about the head and body with his fists. David Norton was then kneeling on me. I have been eight weeks in bed consequent upon the injuries received.
Cross-examined by Mr Groves: My uncle got up off me where he was kneeling on me, and got an axe and struck me. (Witness's deposition taken before the Magistrate was now read) I have been 10 years in Bothwell. I have been working off and on with my uncle during that time. I was at Mrs Triffett's, the publican's, from 2 o'clock till 5 o'clock on the Saturday afternoon. I was drinking there. I like a glass, but I don't get drunk. I am not violent when drunk. I don't remember striking my father with an iron bar. I would not swear I did not. I never threatened to shoot my mother. I never presented a gun at her. I was fined £5 on one occasion. It was not for a brutal assault upon my wife. It was merely for pushing her down. I did not drink beer with Driscoe when I returned to the shop at 5 o'clock. I swear I did not send Driscoe for 2s worth of beer. I was the worst for drink, but I can remember all that occurred on that occasion. I do not remember when I was ordered out of David Norton's house, having knocked my aunt down. I could not swear that I did not do so. I do not remember seeing her there. I swear that I did not strike David Norton before Driscoe laid hands on me. Driscoe and I did not fight in the yard before I fell. William North was called three times upon his subpoena, but did not answer. Mr Graves said he believed Mr North had been thrown out of his chaise cart at Melton Mowbray, and so seriously injured as to be unable to attend. The Solicitor-General said of course if this was the case the recognisance would not be entered. The Chief Justice said he ordered and adjudged that the sum named in the recognisance should be absolutely forfeited, and paid within six weeks.
William Frederick Ewington deposed: I am a duly qualified medical practitioner now practising at Bothwell. On 7th April last I was called in to attend one Richard Norton. He was in bed at his own house. The large bone of the right leg was fractured about five inches below the knee. It was a bad simple fracture. The skin was bruised on the right leg. It seemed as if some heavy instrument had been used to cause the fracture. The head of an axe might have caused the fracture. I examined both legs, and there were marks of blows on the left leg. I should think the blows there were caused by a kick. I think that one blow must have caused the fracture, but from the marks on the right leg I think there must have been two blows. The bone was splintered above. The prosecutor was under my care for seven weeks and three days. When I first saw him, he was under the influence of drink. He knew people and was rational.  
William Stokell, a shoemaker, resident at Bothwell, gave evidence as to having witnessed the row in Norton's back yard. He described the action of the parties as far as he could, but said there was a fence between him and them. He saw David Norton stoop, but could not say that he picked up an axe.
Witness was cross-examined by Mr Graves. Richard Norton, recalled, said he adhered to the statement that David Norton picked up the axe, and it must be a misunderstanding of Mr Quodling that he had said Driscoe did it. Mr Quodling told him at the Police Court that he had said so, and witness replied that he was quite wrong, but that Driscoe was aiding and assisting. Mr Graves then addressed the jury, and said he agreed with the learned Solicitor-General that the charge was a serious one, but he submitted that the jury could not come to the conclusion that both the prisoners were guilty.
The learned counsel commented on the evidence of the prosecutor, and pointed out certain discrepancies in it. He addressed the Court at great length, submitting that the case was at best only one of common assault, and he maintained that no more violence had been used than was necessary to protect defendants from the violence of the prosecutor. The evidence in reference to the blow with the axe was not at all clear, and he thought that they could not find the prisoner Norton guilty, while at most the case against Driscoe would only be one of common assault.
He called David Nox, who said he had lived for ten or twelve years with David Norton. He saw him on 7th April pay Richard Norton £1 8s. Richard said it was 2s short. Dick gave Paddy Driscoe 2s to go and get half a gallon of ale. Driscoe brought the ale to the shop, and witness had a glass of it. Dick was very drunk and disagreeable. Witness then went into the house. Presently Dick came and kicked the lock of the door, and struck David Norton's wife. Mrs Norton told witness to go for a constable, and Richard told him if he went he would knock his brains out. Witness then sat down. Paddy then came to the door, and Richard Norton struck him, and the two went into the yard to fight among the wood where there was scarcely room for them. Witness did not see any more. Norton pulled his wife in and bolted the door. Richard Norton has been working there several years, but they have been obliged to turn him away through his drunkenness and blackguarding. No one could live with him; he is so bad for that sort of thing. The witness was cross-examined by the Solicitor General.
James Dalwood, a farmer at Bothwell, deposed to having heard a dispute between Richard Norton and the wife of David Norton. Richard Norton struck her, and David told him he was unmanly, when a row ensued. He went away and afterwards heard that Richard Norton's leg was broken.
His Honour now summed up at very great length; the jury, after an absence of half an hour, returned a verdict of guilty against David Norton of wounding with intent to do grievous bodily harm, but, as acting under circumstances of great provocation, they recommended him to mercy.
They found prisoner Driscoe guilty of common assault.
David Norton, on being called upon for sentence, said he submitted himself to the Court. Driscoe said the same. His Honour addressed the prisoner Norton at length, regretting that one so long known in the district as an honest, industrious man, and a man advanced in years, should be placed in such a position. He sentenced him to be imprisoned for twelve months. Driscoe was sentenced to be imprisoned for eight months. https://trove.nla.gov.au/newspaper/article/8840667.