THE COURTS-TO-DAY

Evening Star, Issue 11675, 6 February 1902, Page 4

THE COURTS-TO-DAY

SUPREME COUET>-CEIMINAL. (Before His Honor Mr Justice Williams.) SXNTBHCB. Donald M'Rae, twenty-three years of age, described as a sailor, was brought up for sentence, having been committed at Dunedin on the 28th*iranuary on a charge of theft from a dwelling. The Crown Prosecutor, Mr Fraser, said that there were eighty oonviotions, mostly for theft. Prisoner was at present serving a sentence. His Honor said that prisoner would be imprisoned for twelve months, the term to commence at the expiration of current tences. WJPREME COURT—IN BANCO. (Before His. Honor Mr Justice Williams.) AN APPEAL IN A LICENSING CASH. James O'Dowd, boarding-house beeper at Tapanui, appealed against a conviction by Mr Cruickshanks, S.M., on the 20th December, for illegally selling drink on the 13th l*ecember. Mr D. D. Macdonald and Mr Neave appeared for O'Dowd; Mr Fraser for the police ifj support of the conviction. Mr Fraser presented the facte. On the 13th December Henry Price, laborer, went to O'Dowd's house at Tapanui and at the bar saw drinking going on. Men were having whisky, beer, and shandygaff. Price had drinks of that sort and paid for some of them. Whilst ha was at the bouse fifty or sixty men passed through. Price got drunk there and left at 11 p.m., taking with him a bottle of whisky, which he bought from O'Dowd. Two witnesses would speak as to Price's presence at the house at the time referred to. When the place was raided subsequently two bottles containing whisky were found, one labelled "Apenta" and the other "Ginger ale," and the beer was actually on tap. It seemed to be the custom in certain places to put temperance labels on whisky bottles. At Ophir the other day he (Mr Fraser) found whisky labelled "Fizzola." The witnesses called by Mr Fraser were Henry Price (laborer), Constable Mathaeson, Constable Herlihy, and John Simpson Lind (blacksmith). , , - Mr Macdonald asked why Dawson and Branigan, witnesses in the lower court, were not called. Mr Fraser replied that he did not wish to weaken his case by producing witnesses whom he could not cross-examine. His experience was that it was impossible to get out the truth in these Tapanui cases except at the point of the bayonet of crossexamination. Mr Macdonald pressed his point, saying it was pretty evident that Price had varied his story. Mr Fraser said that that was not so. His Honor thought it fair, seeing that •the penalties were serious, that the witnesses should be at least tendered. If they varied their evidence they could be treated by the police as hostile. Mr Fraser said that he would examine William Dawson (farmer) and Cecil Branigan (rabbit inspector) were then examined. , Mr Macdonald said his learned friend had undertaken to prove that O'Dowd sold whisky and beer on the night of December 13. Before a conviction could be recorded, he submitted the case must be proved to the satisfaction of the Court. What was the evidence? The Crown Prosecutor had only called one witness who had given any evidence as to sale. This man, from his own lips, admitted that he was a drunkard, a thief, and had served a sentence of six months for aggravated assault. His friend was now taken by surprise that this man should give different evidence to what he did in the lower court. He (Mr Macdonald) submitted that from the manner the witnesses Dawson and Branigan had given their evidence it should be preferred to that of Price, and he would go further, and say that had Dawson been asked in the lower court to contradict Price's statement, as } e did now, about drinking with the latter that evening, Mr Cruickshanks would not have come to the conclusion he did come to.

Evidence was given by ODowd. His Honor, in giving the decision of the Court, said: I can quite appreciate the difficulty which the Crown has in these sly grog-selling cases, a.nd'l quite appreciate tie fact that evidence in theße cases, especially when given on behalf "of the defendant, is exceedingly unreliable. That, however, does not render it the less necessary for the Court to act upon the same principles upon which the Court acts in all criminal cases. The burden lies on the prosecution to establish the guilt of the accused. If there is any reasonable doubt as to the guilt of the accused in any particular case he is entitled to the benefit of that doubt. Give me in any of these cases one witness for the prosecution shown to be an honest witness, and then, though there might be a dozen witnesses on the other side swearing there had been no sale, then I should be inclined to believe the witness'for the prosecution. But that is not the case here. The witness, the only witness, who swears to the sale can hardly be called an honest witness. He has been convicted of an aggravated assault for which he has served a sentence of six months. He has also been convicted of larceny, and appears to have been in the habit of drinking. He has been convicted several time for drinking, and one of these convictions is a very recent one. Where the principal, and indeed the only witness for the Crown is a witness of that character it is obvious that one must look for some substantial corroboration of his story. The shape in which the suggested corroborative evidence comes before this Court is materially different from the shape in which it came before the magistrate. I am inclined to think with Mr Macdonald that if tie magistrate had heard the evidence in tie shape in which it has come here that he would have formed a different opinion. In the lower court Mr Branigan was called and ho gave substantially the same evidence that he gave here. He denied that he had a drink with Price. Price in the lower court only suggested that he had one drink with Branigan. Now Price comes forward and says fie had half a dozen, and that Branigan must have been under the influence of liquor. He also says that be left Branigan in the bar. Branigan says he had only one drink with Price, and that drink was a temperance drink, while at the time Price was perfectly sober. Branigan also says he has not tasted an alcoholic drink for six months, and this ifl corroborated by Constable Mathieson, who believes Branigan's statement that ho is now a Good Templar to be a true one. So that Price's story now (which was not before the magistrate) was not that they had only one drink, but ever so many drinks, and alcoholic drinks. This Branigan absolutely contradicts. That was not be* fore the magistrate. Then in the case of Dawson—Dawson was not asked before the magistrate whether he had been at O'Dowd's in Price's company. Price said before the magistrate that he had two drinks with Dawson, but Dawson was not asked about that. Now Price says late in the evening he had three or four drinks with Dawson, and that Dawson and Branigan were present in the bar when he left, Bomewhere about ten o'clock. Dawson is how asked for the first time about any drinks he had with Price, and he says he never knew Price. He went into O'Dowd's about six o'clock and had a temperance drink, and went away. He never saw Price in his life till he turned up with a whisky bottle at twelve o'clock at night and wanted to sleep in the house. Price is therefore contradicted in important particulars. Not only is hie evidence impeached to some extent by his previous character, but he is distinctly contradicted on material points by two witnesses. I must say I am inclined to give credit to both of these witnesses. It really does occur to me that if Price had been drinking, as he said, and had got drunk at O'Dowd's, that somebody from among the large number of people in the bar.would* have been able to come forward and corroborate his story. Price's story is contradicted by reasonable evidence, and it is also discredited by his previous career. The only real corroborative evidence is that about twelve o'clock at night Price is found in Dawson's drunk, and - that he is found next morning drunk with a whisky bottle by his side. That is really tie only corroboration of his story, but in the face of tliv evidence of Branigan and Dawson 1^

hardly think* that can be aid to be corroboration. Price's evidence is sbown to be untrue fa material particular*. There k nothing to- show that he might not have obtained the liquor in hit possession after he left O'Dowd's. The subsequent seizure that night of what was found in the house, although it'might suggest that O'Dqwd may have on other occasions been guilty of sly grog-selling, and although it might suggest that -he would be prepared .supply liquor to a sale man, yet it rather seems tq me to negative than to confirm Price's story of what toot place on this particular night If Price's story were correct, and there was whajb you can call wholesale drinking, three bottles of whisky hardly suggest that O'Dowd was prepared to give whisky to all and mindry # who were likely to buy. I confess that, although there may be suspicious circumstances in the case, yet, applying the ordinary rules of evidence by which tie Court is guided in criminal cases, in this particular case it would be unsafe to depend on the evidence. of Price. The case has shapen itself here differently from the way it shaped itself before tbs magistrate. I always feel in these cases that the magistrate is really able, from a larger experience, to come to a safer conclusion than I am. But the case before me shapes itself in a different way from that before the magistrate. I feel at liberty to come to a different conclusion from that at which the, magistrate has arrived. I think, therefore, in this particular case there is reasonable doubt as to whether Price's story is true. That being so, the defendant is entitled to the benefit of it. The appeal will be allowed.

CITY POLICE COURT. (Before E. H. Carew, Esq., S.M.) Drunkenness.—James Murphy, charged with drunkenness in High street at 11.20 a.m. yesterday, was fined 10s or forty-eight hours, a week being allowed in which to pay the fine. vagrancy.—Lizzie Donaldson was charged with being a rogue and vagabond and a disorderly person. As the arresting constable was not present, accused was remanded till to-morrow. The Beer Duty Act.—Maurice Joel was charged with on infringement of the Beer Duty Act. On the application of Mr Sim the hearing of the information was adjourned till Monday next Maintenance.—Michael Heads, charged with failing to contribute' towards the support of Margaret Eeads, an inmate of Seacliff, did not appear, and on the application of Mr Emslie the case was further adjourned rill the 13th February.