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THE LICENSING ACT., Issue 8058, 7 November 1889
THE LICENSING ACT.
At the City Police Court this morning several charges for breaches of the Licensing Act wcro heard-.
in tho first case Thomas Montgomery Johnston was charged with obtaining liquor from tho lieqnmjc of the Universal Hotel dunnft prohibited hours by falsel.V rcprotenting himself to be a tfavollcr within the mcanW rtUKc A-Ji. Mr V,\ njaugregov appeared for defendant and guilty. Leander Bon of the licensee of tjio tTi's Ifotcl, said ho was in charge t* tne house last Sunday. Defendant came into the bouse about a quarter to twelve, accompanied by a woman, and mot Sergeant Green and Constable Cruickshanks going out. He asked defendant what they required, and ho said they wanted drinks: Witnces Raid : " How can I serve you ; fcnb police havo just gone out.' tn reply to that deiendw.'t fttt'd tho woman said they were travellers—bona fide travellers—and the Woman said they had slept at Caversham, more than three miles from where they were. As they professed to be bona fide travellers, he said he could not refuse to supply them with drinks, and gave the woman ginger-ale and the man brandy and port wine. Johnston paid for the liquors. To Mr Macgregor : He did not know defendant, neither did he know tho woman! The reason why lie mentioned that the police had just gone out was because be did not want to serve liquor to defendant and the woman. They used the words "We are travellers" simultaneously. When they said they lived more than three miles away from the house he felt assured that they were bona fide travellers. Constable Cruickshanks said that about 11.45 a.m. on Sunday last he visited the hotel, and subsequently saw Johnston and a woman enter tho Universal Hotel. He there had a conversation witli the last witness. He knew defendant, who resided at Walker street, near Melville street, about a quarter of a mile away. Mr Macgregor said that no offence had been disclosed, even if tho evidence of Pavletich was believed. The burden was on the prosocution to prove that defendant, by representing himself to be a traveller —by falsely representing himself to I be a traveller—obtained the liquor, and it was to be proved that Johnston was not a travellor under the meaning of the Act. This had not been done by the police, and for all the Court knew defendant might have slept at a place three miles distant. Jt had been shown that defendant lived a quarter of a mile from the public-house, and the presumption was not that because defendant lived there that he slept there; the presumption was that where a man slept there ho lived. It had not, learned counsel submitted, been proved that liquor was supplied by the false representations of defendant. The questions put to his client wcro merely a pretext to allow Pavletich to supply liquor to defendant, and the false representations were called for by the questions put to defendant. The evidence of Pavletich was so self-contradic-tory that it could not be believed. The fact was that defendant was asked whether he was a traveller, but to that question no reply was made by him. The evidence of Pavletich had been shaped so as to suit his purposes in the next case, where he was charged with supplying liquor during prohibited hours. Another thing was that Pavletich had not thoroughly satisfied himself that defendant was a traveller. Defendant said he was a commission agent, who carried on business at Caversham, while ho resided at Walker street. On the day in question he and a woman visited the Universal Hotel, and in answer to Pavlctich's query " What do you want?" he answered "Refreshments. 1 ' Witness said that he came from Caversham, and he and the woman were supplied with liquors. Nothing was said as to where defendant slept the previous evening. Witness believed that if he walked to Caversham and back again he was a traveller. He had done that in the morning, and he thought he was a traveller, although his journey was concluded.
To the police : He walked to Caversham, starting from Duncdinat a-quartcr to eleven. He never saw Constable Cruickshanks or Sergeant Green at tho Shamrock Hotel at a quarter past eleven. He saw them at the Shamrock at a quarter past twelve. Constable Cruickshanks (recalled) said that he met defendant at the Shamrock Hotel at about a quarter past eleven on Sunday morning, and this evidence was corroborated hy Sergeant Green. Judgment waii given as follows :—" Tho conclusion wc have como to in this case is that tho liquor was obtained by the defendant by the false representations made by him that he was a traveller. It matters not whether he was believed or not if the publican was induced by Jiis statement to supply him with liquor." Defendant was tiued 30s and ooata, iu default four days' imprisonment. Johnston was then charged with obtaining liquor in the same manner from the licensee of the Rising Sun Hotel. Roderick M'Kenzio, licensee of the Rising Sun Hotel, said that about 12.35 p.m. on Sunday last defendant came into tho hotel. He was not served with liquor. Witness gave him a glass of liquor, which he never expected to be paid for. He asked defendant to have a glass of liquor. Constable Crucikshanks was there, and was told that Johnston was a traveller for a lark, as he (witness) did not want the constable to stay in the place any longer. Witness knew that defendant was not a traveller, and "shouted" for him simply because he was a customer of his.
Constable Cruickshanks said that about 12 35 p.m. on Sunday last he visited the Rising Sun Hotel, and saw defendant placing an empty glass on the counter. M'Kenzie, when asked if he had supplied Johnston with any drink, said that ho had done so. M'Kenzie said that he had asked Johnston if he was a traveller, and the latter had said that he was. Johnston seemed to be in such a condition that ho could not realise the importance of the question. Mr Carcw said that if such were so the case must fall, as there was no evidence against defendant. Although he was prosent at tho time the question was asked, his condition was such as that he could not understand the nature of the question.
Ann Pavlctich licensee of the Universal Hotel, was charged with unlawfully selling liquor—to wit, wine and brandy—during prohibited hours on November 3. Mr Thornton defended, and pleaded not guilty, Thomas Montgomery Johnston said that on Sunday last he was supplied with liquor at the Universal Hotel, for which money was tendered and accepted in payment. Witness could not state that the mau who supplied the liquor was the one in Court—ho never saw tho barman before. To the best of his knowledge no mention was made of the fact that the police had just gone out. The reßt of witness's evidence was similar to that given in the previous case. Leander Pavletich also gave evidence, which was mainly a repetition of that tendered in the case against Johnston. The woman said to witness: "We (meaning Johnston and herself) slept at Caversham," and witness replied: "Well, if you arc bona fide travellers I can't refuse you." To Mr Thornton : Two lodgers, M'Laron and Johnston were present, but they had since gone to Hindon. When tho police came in they said they wero making a public inspection of the hotels. They looked in the bar, and left quite satisfied. Witness believed that Johnston was a traveller, and thought that if he was satisfied a man was a traveller he was bound to supply liquor to him. Mr Thornton said that the evidonco of the two lodgers, who were unfortunately away from town, was such that
Mr Carew held that evidence as to what evidence might be tendered was inadmissible.
Mr Thornton said that defendant's son truly believed that Johnston was a traveller, as represented. The difficulty in which an hotelkeeper was placed was a most delicate one. If he refused to supply a traveller with liquor, and if that man was a bona tide traveller, tho hotelkoeper could be brought up on an indictable charge. That, indeed, was the reading of the Act. His Worship held that such was not the case, and ruled against Mr Thornton. If tho hotelkeeper could not reasonably satisfy himself that the man was a bona lido traveller lie was not bound to supply the liquor,
Mr Thornton submitted that the very boldness of tho act of Johnston in going into the hotel and asking for liquor while the police wcro almost outside waß sufficient to prove that tho matt PaVlctloh thought that Johnston was a traveller. All hotelkeeper could not posslb'y send a person out to dls* cover whether Johnston of anyone else had slept ai a certain place, and if he proceeded to question the man further the man would simply tbll fllrther lies, and so completely blind the hotelkeeper, who was placed in a Somewhat peculiar predicament. Mrs Pavlctich had kept the hotel for some twenty years, and nothing whatever was known against her. Constable Cruickshanks said that when he visited the house and questioned Pavlctich aB to whether tho man had been supplied with liquor, lie was answered without hesitation. When asked Whether ho had satisfled himself that they were bona fide travellers, Pavletich said that he had—ho had asked them if they were travellers, and they had said that they were. Another person who was present said that Pavletich had asked the man and woman if they were travellers, and they had replied in tho affirmative.
Judgment was given as follows : —" The law of the case is this: That it is an offence under the Licensing Act for a publican to sell liquor during certain prohibited hours, excepting to travellers or persons lodging in his house. If he does sell, then tho responsibility is cast upon him of proving that the person he sold to was a lodger or traveller, but if he fails to prove that the purchaser was a bona fide traveller he will be excused from punishment if he produces evidence that satisfies the Bench that he truly believed the purchaser was a traveller, and further, that he took all reasonable precautions to ascertain whether or not the intending purchaser was such a traveller. In this case it is proved that Johnston was not a bona fide traveller; and it is proved also that he was asked tho question whether he was, and answered in the affirmative. _ But the questions and answers, in our opinion, were used merely as a matter of form, and regardless of whether they conveyed a right impression or no." Defendant was convicted and fined L 3 and costs (14s), the low penalty being inflicted in consequence of the good character which the hotel had borne while under Mrs Pavletich's supervision.
Roderick M'Kenzie, licensee of the Rising Sun Hotel, was then charged with selling liquor to Thomas Montgomery Johnston during prohibited hours on Sunday, the 3rd inst. Mr D. D. Macdonald defended. Evidence was given by Thomas Montgomery Johnston, Constable Cruickshanks, and Sergeant Green. It was alleged that Johnston was seen in tho act of putting down an empty glass on Sunday in the bar of the Rising Sun Hotel. Johnston stated that he intended to pay for the liquor which was supplied ; but defendant said ho did not know whether he was to be paid for the drink or not. Johnston, it was stated, was intoxicated, and Constable Cruickshanks said that he intended to arrest him for drunkenness, as he knew from the nature of the man that there was a possibility of him being found in a state of drunkenness. Sarah Johnston, wife of Thomas Johnston, said that on Thursday she went to the Rising Sun Hotel and asked the licensee not to supply her husband with liquor. She said that her husband was the worse of liquor, and he replied that her husband was not the worse of liquor. He also said that he was there to sell his liquor, not to keep it; and that he would have to shut up his hotel if he listened to evory person who spoke like that. Ou the Monday defendant admitted that he had supplied aglassofbeer to Johnston. He was very impertinent to her at the time. For the defence evidence was given by defendant, who said that he gave Johnston a glass of beer, for which he never expected payment. Johnston never said that he would pay for the beer. Although Constable Cruickshanks and Sergeant Green swore that Johnston had promised to pay for the beer, witness would deny that Johnston was not drunk when he came in. He only had a glass of beer, and witness could not explain how it was Johnston was drunk when he came out. Mr D. D. Macdonald said that there was no sale, and therefore, on the showing of tho police, there was no case to answer. Mr Carcw said that there was not tho slightest doubt in his mind but that the two officers, who had been in tho force for a considerable number of years, wero telling the truth, and tho fact that defendant had denied their statements threw doubt on tho credibility of his evidence. Ho would hear the other case against defendant before pronouncing a decision.
M'Kenzie was then charged with unlawfully selling liquor to a person who was already in a state of drunkenness. It was proved that Johnston was drunk on Sunday, was arrested on that date, and was fined 10s on Monday morning. Evidence similar to that given in the previous case against M'Kenzie was adduced, tho witnesses being Sergeant Green, Sergeantmajor Bevin, and Constablo Cruickshanks. For the defence it was urged that Johnston was not drunk when he entered the publichouse, and that the glass of beer was not sold, but was given to him. T. M. Johnston said that he was "considerably sober" when he entered the hotel. He only had two drinks that day, and wanted to go home, but the constable would arrest him, and locked him up. His Worship held that the offence was proved—he was satisfied that Johnston was drunk when he was supplied with liquor—and defendant would be fined L 5 in each case, with costs. Each of these convictions would be recorded on the license, for when a man went into the box and made such statements as defendant had done he could not expect any consideration.
THE LICENSING ACT., Issue 8058, 7 November 1889
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