LICENSING CASE.

Auckland Star, Volume XXX, Issue 157, 5 July 1899, Page 4

LICENSING CASE.

THE INFORMATION DISMISSED.

At the Police Court this'morning Mr T. Hutchison, S.M., gave judgment in the case against Duncan Stewart, licensee of the Empire Hotel, charged with allowing liquor to be sold to a child apparently under the age of thirteen years. The facts in the case, said His Worship, were simple enough. The defendant's wife, as his agent, sold to a boy a bottle of beer, which the boy took away. Before serving him she asked the boy his age, because she was not sure from his appearance whether he was thirteen or under. The boy said he was thirteen. It was afterwards proved that he only became twelve years of age on June 21st last. On those facts' defendant was charged with selling liquor to a child apparently • under the age of thirteen. The question in the case was what was the meaning of the words of the siib-section, "apparently under the age of thirteen?" Mr Campbell contended that the sub-sec-tion should' be construed as meaning "apparently to the person selling," and there was great cogency in the argument. But there was a difficulty. ; which seemed to His Worship to invalidate the defence. If the'judgment of the person selling the liquor was to be considered conclusive where was the line to be drawn? The judgment might be an absurdly stupid one.. Such a construction of the word "apparently" would, he thought, tend to make the statutory provision inoperative. It was clear-the Legislature intended to prohibit the.-sale of liqu.or to. children under thirteen altogetherj but. to prevent possible injustice it was enacted that the fact: that the child was under the "age should, from the appearance and conduct of, the child be apparent not to this man or that man, but to any man of "oi'dinary intelligence. His Worship's opinion was that the question, to be decided was one of fact. He might point out that; a somewhat . similar problem was met in the common law in connection with the law of negligence; the courts ignored individual idiosj'ncrasies, and set up the standard of the average man as the test. The question in the present case was—would a person of ordinary, intelligence have said that the boy in this case ivas under thirteen? To Mrs Stewart the boy was apparently under that age, because she said- she was not sure until she asked -him;;., but then two witnesses were called for the defence, one of whom said he would take the boy to be between thirteen and foiirteen years, and the other said the boy appeared to him to be thirteeen years, perhaps more. There was no witness on the other side, the police apparently relying upon the age. .certificate and theap-v pearance of the boy. As-to the latter" point, if the opinion of the Magistrate! was of any consequence, he might say: he would not feel confident in saving1": that the boy was not over thirteen. The information was dismissed^ ;