ANTI-SHOUTING.

Northern Advocate, 30 November 1916, Page 1

ANTI-SHOUTING.

A VYIUMJUtEI CASE.

RESERVED JUDGMENT GIVEN

A. CONVICTION ENTERED UP,

At the Whangarei Magistrate's Court yesterday afternoon Mr E. \\ Burton, S.M., gave his reserved judgment in the anti-shouting in which a man named John Hicks was charged with offering to "treat , ' two other men to alcoholic liquor at the Commercial Hotel. The judgment .s interesting and instructive, and it is therefore given in full. Mr Burton said: — This is an information charging- that the defendant on the l2.'!rd October, 191(5, at Whangarei, did on licensed premises, to wit, the Comercial Hotel at Whangare", offer to purchase intoxicating liquor with intent that it should be consumed on or about the said licensed premises by one John flicks, contrary to the form of the statute in such case made and provided. The evidence for the prosecution was t"> the following effect: — On (he 23rd October last, about ,'5.30 p in., Constable Power, the informant, was on duty in Bank street. Whangarei, in the vicinity of the Commercial Hotel corner. He saw defendant, who is a Miuiri, in company with another Maori, and a European named Hicks, walking in the direction of the hotel. On approaching the door of the hotel, defendant, whilst still on the footpath, invited his two companions to enter the hotel with him and have a drink. He next left the footpath, entered the outer door of the hotel, and laid hold of the handle ol one of the inside, or, folding doors, within the licensed premises some 2 1 / 4 feet off the footpath and partially opened such door. In that position he made a second request addressed partially to Hicks to "come in and have a drink," at the same time putting his hand in his pocket and producing some coins. The invited man refused the invitation, and the accompanying Maori did likewise. The three then proceeded to the corner of Kose and Bank streets, where is the nain entrance of the hotel. The conitable was then standing three feet away from defendant. The defendant put his right hand into his trousers pocket, and addressed to his companions a fresh invitation, namely, "Come in boys aud have a drink." He was standing , on the footpath opposite to this entrance. Thereupon the constable remonstrated with him, whereupon he replied "You know it is Labour Day and I want to be 'the good fellow.' " Hicks and the Maori, who had then, according to their own evidence, had a few drinks already, did not accept defendant's invitation The constable says that Hicks was drunk at the time, whereas the latter states, "I was not drnuk, not sober I had my senses. Could walk alright." Whilst he adds: "I was in three hotels prior to passing the Commercial," whereas there are only two other hotels in Whangarei, the "Settlers," and " Me.Mahon 's. " His sight seems on that tiny to have been as treacherous :is his memory, for he locates the position of the constable at 70 yards away, whilst the latter idac.es it at three feet. Hicks' version of the words used by defendant, is "F am going in to have a •Iriuk," and positively not ''Come and have -i drink." The accused, who according to his own eviednce went the same round of hotels, and enjoyed the same number of drinks as Hicks, says: "I was sober. Hicks was as ;iood as 1 was as to sobriety." Defendant's sobriety not surpassing that of Hicks, I have no reason to set a greater value upon his evidence touching the words used,

I namely, '' I am going in to have a drink," than I do on that of Hicks By reason of the state of inebriety of defendant and his witness Hicks at the time when the events mentioned happened, I am driven to conclude that no value can be placed upon their testimony in regard thereto, and to accept that of the Constable as the correct version of what actually took place. A REVIEW OF FACTS. Consequently I find the following facts as proved:— (1) That defendant, being on licensed premises, that is to say, ■within the outer door of the Comercial Hotel, and within the sight and hearing of one John Hicks, then under the influence of liquor, nnd a Maori companion, both then standing on the footpath immediately adjacent to such hotel, addressed to them the words: "Come in," or "come in boys, and have a drink." (2) That such invitation was giv n by the defendant to his companion Hicks and the other Maori with the intention of affording them entertainment by means of drink, as an expression of friendship, or, good-fellowship. I or, as defendant himself puts it, "You know it is Labour Day, and I want to be the good fellow." WHAT IS TREATING? The question of law is: Do these facts amount to treating within th< Act ? Before dealing with the expression "treating" employed in the Act, it is well to refer to Webster's "Revised Unabridged Dictionary," oil. 1914, page 10-' i.'i, where the various meanings of the transitive verb "to treat" are given. I select the third signification there stated, as cognate to the matter dealt with in the portion of the Act under consideration, namely: —"To entertain with food or drink, especially the latter, as a compliment, or as an expression of friendship or regard as to treat the whole company." Stopping here for the moment, it is clear, beyond all doubt, from defendant's reason given to the constable for using the words "Come in boys and have a drink," or "Come in and have a drink," that the invitation thereby conveyed was intended as a direct intimation that he desired to entertain Hicks and his Maori companion upon the licensed premises w r ith drink, by way of compliment, or, by nay of expressing his friendship or regard for them. That is abundantly evident from the words used, namely: "You know it is Labour Day and I want to be the good fellow." THE WAR REGULATIONB. Section 3 of "The War Regulations Amendment Act, 1016," sub-section (1), enacts: "In addition to, and with out any any manner restricting, the powers conferred by the principal Act and its amendments, the Governor in Council may by regulations make (h) such provisions as, having regard tc the exigencies of the present war on the conditions created thereby, he thinks advisable for all or any of the folowing purposes, namely: —(IV) For the suppression or regulation of the practice of treating as hereinafter de fined.'' Sub-section (2) proceeds "For the purposes of this Act the term "treating" includes the act of any person who directly or indirectly —(a) Pays or uudertakes or offers to pay; or, (l>) Gives or lends, or offers or undertakes to give or lend, money with which to pay —for any intoxicating liquor sold or to be sold on licensed premises within the meaning of 'The Licensing Act, 1008,' for consumption on those premises by any person other than the person first-mentioned, and includes any other act that the Governor may by Order in Council declare to be treating."

By Order iv Council dated 21st August, 1916, gazetted in the Xew Zealand "Gazette" of that date, No. 90, at p. 2801, further acts are declared to amount to treating within the meaning and for the purposes of "The War Regulations Amendment Act, 1916." Regulation 2, sub-section 3, extends the meaning of "treating -, to include: —"The act of any person who on licensed premises purchases, or offers to purchase intoxicating liquor with intent that it shall be consumed on or about those premises by any other person." Sub-section 4, adds that meaning by declaring it to include: —"Any other act done by any person with intent chat any other person shall consume on or about licensed premises any intoxicating liquor other than liquor purchased and paid for by the consumer., with his own money. Money ent or given to any person upon Ucensed premises, or lent or given to aim elsewhere with the intent that it shall be spent in the purchase of intoxicating liquor shall for the purposes of these regulations be deemed not to be his own money." Sub-section 9 of the same section, is also of importance as to the onus of proof. it is as follows: —"If in any prosecution for an offence against these regulations the evidence profuced by the informant or the facts as admitted are sufficient to constitute a reasonable cause of suspicion that the defendant is guilty of the offence charged, the burden of proving that the offence was not committed shall lie upon the defeudan , .. , ' THE O>TS OF PIfOOF. For the reasons given above I have been obliged to reject the pvidonce of defendant and his witness. In that circumstance is also involved the failare on his part to discharge the burden cast upon him of proving that the offence charged was not committed, if the evidence produced by the informant is "sufficient to constipate a reasonable cause of suspicion that ths defendant is guilty of the offsr.ee charged." The evidence is that three men in varying degrees of intoxication, resulting from a round of visits paid that day to certain hotels in Wha■ngarei, arrived at the Commercial Hotel; that the defendant, then standing on the licensed premises in ths ■space between the principal outer entrance and inner folding doors, with his hands on the handle of one of the latter doors, addressed his inebriatecompanions with thi iamiliar "Come in, boys, and have a ii.'iuk," o\ 'Vome in anil have a drink." explaining s ibseque iUy to the con e "a ! !e "You know it is Labour Day, and I want to be the good fellow." Dealing with the matter in terms of the above-quoted subsection (9), of section 2 of the Regulations, and giving due regard vj the circumstances of time and place, and to the intended good fellowship o* '.lie man who uttered the above int r I; aI: on, it is unreasonable to ass i.-i?o thj* these familiar v-'M'.cs could i an\ thing sv.e in ;j:v't3i : ou to »jo persons addressed to enter the Com. mercial Hotel for the purpose of their drinking intoxicating liquor therein at the expense of defendant. A contrary assumption would entirely deprive the invitation of the quality nf convivial good fellowship wiiirh the ,'ieiendant intended to convey. The resumption th:>'. the words used, addressed from within licensed premises to more or less inebriated persons stauding close to the entrance of such, premises would convey primarily to their minds, especially in their then state of inebriety, an invitation to partake of non-al olio'.ic beverages within such premises, is too ab?urd !.) deserve serious consideration. Applying the exhaustive method to this

inquiry but one conclusion remains Open, namely, that the invitatory ianguage employed constitutes "a -reasonable cause of suspicion" f hat they were uttered with intent ro Com ey, and did convey, and offer to entertain with drink on licensed premises, and as an expression of friendship or good fellowship, the persons invited, at the expense of the person inviting. The contention that the words are capable of being understood as implying that the persons intended to be thus entertained were each to pay for their own part of the entertainment, sets at nought the defendant's explanation that the invitation, or, offer, was designed for the purpose of proving him. self "the good fellow." WHAT ARE LICENSED PREMISES. "Licensed premises" by section 1 of "The Licensing Act 1908" means "premises in respect of which a license under this A?t has been granted and is in force." And by the same section:—"premises includes house or place, and extends to every room, bil-liard-room, closet, cellar, yard, skittle ground, stable, outhouse, shed, or any other place whatsoever of. or, belonging to, or in any manner appertaining to, such house or place." It is clear, therefore, from the descrip- , tion of the place where defendant stood when he used the words "Come in, boys, and have a drink," or "Come in and hive a drink," that he made his offer, or invitation, on licensed premises. AN INVITATION TO THE IT. I come to the conclusion, therefore, ..hat the language employed by the defendant while within the licensed premises, known as the Commercial Hotel, amounted to, and was intended to amount to, an offer to purchase Intoxicating liquor in such premises with intent that such liquor should be consumed on or about those premises by Hicks, and indeed, by the defendant's Maori companion. A close perusal of sections 2 and 1, of the Regulations of 21st August, 1916, will show that they are aimed, the former at the tempter, and the latter, at the tempted. Section 2is designed to punish the tempter, whother his tempting suceeds or fails, is accepted or rejected. Its sub-sections are variously framed so as to catch such tempter, whether operating on or off licensed premises, so long as the intent to lure the tempted on to or about such licensed premises for the purpose of there consuming intoxicating liquor at his expense. Whilst section 4 punishes the tempted if he "on or about licensed premises receives or consumes "intoxicating liquor in respect of which an offence against these regulations has been committed by any other person." Quite apart, however, from consideration of the onus of proof cast upon the defendant by clause 9 of the Regulations, the defendants explanation to the constable of his intent, in issuing his invitation, "Come in, boys, and have a drink," or "Come in and have a drink," puts such intent beyond all doubt. This intention was, as so stated, to prove himself "the good fellow;" a proof unattainable save at his own expense. An invitation, moreover, to enter an hotel to have a drink, especially when addressed by a partially inebriated entertainer to partially inebriated prospective guests, with *.. mental reservation that the entertainer will confine the entertainment to non-alcholic drinks is not worthy of serious consideration. Such an invitation, in the absence of express stipulation, is an invitation to partake of the drink which it is tho licensee's business to sell, namely, in. toxicatiug liquors. FINED FIVE POUNDS. The defendant will be convicted and fined the sum of £5 and costs. In fixing the fine I have to point out that any offence against these regulations is punishable by imprisonment for a term not exceeding twelve months, or to a fine not exceeding £100. Sec "The War Regulations Act 1911," section 4.