RESIDENT MAGISTRATE'S COURT. Friady.

New Zealand Herald, Volume III, Issue 648, 9 December 1865, Page 5

RESIDENT MAGISTRATE'S COURT. Friady.

(Before Thomas Beckham, Esq., E. 11.) DRUNKENNESS* Robert Flood, "William Welch, and Jolm Shea were each charged with this offencj and fined 20a. and coats or 48 hours' imprisonment with hard labour. | ILLICIT DISTILLATION. John Duly was charged with being guilty of having in his possession a still for the distillation of spirits at Papatoitoi. Mr. Gillies for the prosecution in opening the ease said, the following are the facts of tho caso : From information received tho Custom-house oflicers proceeded towards Papatoitoi, aud on searching about through tho scrub they came by an indirect path into a deep pully, where they found a whare mado on a sleep bank. On entering the hut early in (lie morning thoy found this man (tho prisoner) and another asleep in bed, and sundry articles in the houso, such as provisions, shewing that it wa3 their place of abode. This was early in tho morning, and in tho sumo plaeo. was found a still and worm coinplete, a large tub for wash, and casks. On these facts being proved it will bo vory clear that this man and the ono with hiir- weio the parties who had the still in possession. It is not necessary .that they should bo tho owners or proprietors, tha simple having it in their possession is suflicitnt for conviction. He thon proceeded to call tho following ovidence.

Sergeant-Major Molloy deposed: On Monday morning week I proceeded with Mr. Tab'iteau and Mr. JSuston, Customhouse officers, to Papatoitoi. Wo went about half-a-mile inland from Mr. Burton's, a short way from a very deep creek. I lint saw an empty cask. Twenty yards from that I saw a hut, and l'our or fivo yards l'rom tho hut I saw a copper still. Alongside tho door of tho hut outside I saw a worm. I'n enteiing the hut I found two men asleep. Tho prisoner is ono. Thoy were undressed in bed. There was no oilier bed in the place. There were three large casks iuside containing about 300 gallons of wavli. ! -vaa all but ready for distilling. Thero was oUn ' 1 ~ c.i and fresh meat in tho houso and everything ii t vu==ary for household use. The hut was in a situation very difficult to bo found out. It was in the middle of a denso bush. It was about 6 o'clock in tho morning when wo arrived there. There wai no sign of any other person having been about tho hut that morning. By tho Prisoner: 1 do not know that you were implicated in the distilling. lam aware that yon are a labouring man, but T do not know whether you took the fresh meat into the hut or not. J. W. Tabuteau, deposed: On Monday morning week I went with Sorgeat-Major Molloy to Burton's farm. Wo went to a gully about a mile and a half from tho main road, at the back of St. John's .Redoubt. We enteral. 1 a Hiiek bush, and the first thing wo saw was an empty i- fallowing the course of a slight track, wo came lu a very steep part of the gully, and there was found tho boiler of a still just outside tho hut which wai made of sugar mats. Close alongside tho door of the hut was found the worm of a still. In ido the hut the head of tho still was found, and the leading pipes connecting the still with tho worm ; also thiea largo casks containing over 30J gallons of wort. Prisoner and another man were in bed behind tho casks. I hey woro undressed, and asleep, and both under ono net of blankets. There was no other bed in the placo. This was a place not eaiy of access. It might be passed repeatedly and never found. It was between half-past five and six o'clock in tho morning whou we found it. Wo brought tho still into town, and destroyed the wort. By the Prisoner: I did not know that you wero implicated in tho distillation. By the Court: The wort had gone through alt the stages except parsing through the still aud worm. I'ris-mer had nothing to Bay in his defenca. His Worship addressing the prisoner said: From tho facts brought before tho Court—the evidence adduced—there cannot bo n doubt in the inind of any person who has heard it,' that you are guilty, equ illy guilty with the person who was with you. That being tho caso, it is highly necessary thii' an example 6hould be mado. This is not the first ease which has been brought before this Court. Distillation is increasing to an alarming exient, and it will bo necessary to indict a much larger lino than has ever yet been inflicted. Tho Bench finds you guilty, and orders you to pay a fine of £300. The prisoner not being able to pay the fine, was sent to prison for six mouths. BBEACII OF TIIK LICE: SIXO ACT. James Elisor, charged with a breach of tho Licensing Act, 1863, by allowing liquors to bo sold on tho back of tho premise( known ns the ODicera' Mess, not boiug duly licensed. Mr. Gillies appeared for the prosecution, and Mr. Wynn for tho defence. Mi*. Gillien said : This information is laid under tho Liconsing Ordinance, section 38. lam instructed that wo shall bo prepared to prove that the defendant is not duly licensed to sell liquors in tho building known as tho officers' mess. We shall prove tlu.t these brick promises of tho odicers' mess are Mr. Kmor's premises ; that ho lias tho occupation of them—tho occlusive occupation of them, for purposes connected with tho officers' mess. They are not his premises in the sense of his being tho owner or tho leaser of them, bu: he is tho occupier of them. lie has tho use of them for tho purposes of the officers' moss. On the 30th ult., threo men of various corps were drinking beer in these buck premises, for which they paid the mesß waiter, who will provo that he was authorised to sell liquors, and that he handed over the money to tho defendant.

I{. Lusk, Provincial Accountant, said I am acquainted with tho licen6DS which aro issued. Mr. Ensor is not licensed to sell spirituous liquors. Robert H. Stone, Military Train, deposed: I know the officers' mess in the Albert Barrucks. They are under the charge of Mr. Knsor, the defendant. The back premises aro occupied by Mr. Ensor for t'>e purpose of keeping beer and spirits and wine, lor the use of tho officers of tho garrison. Mr. Ensor has the solo occupation of the.-o premises. The liquor there is tho property of tho officers. It is tho property of Mr. Ensor. Cross oxamined l.y Mr. Wynn : This placo is ÜBcd as nil officers' mess. I will swoar that it is uied as an officers' mess. I da not certify every month that Ido not belong to a regimental mess. It is not Mr. Elisor's house; ho does not live tliero. Tho premises aro not his. He sells liquors to the officers. I do not know who is the instigator ol this proceeding. I have had noise conversation with Mr. Mould on the subject. James Stuart, a privato in the Military Train, doposed : I am mess waiter in tbo officers' mess. I have charge of tho mess. Tho principal part of tho liquors belong to Mr. Ensor. I dispense th»se liquors to tho officers un or tho officers' authority. I givo Mr. Ensor'a liquors to tho officers by Mr. Ensor's ordors. They do not pay for the liquor when they take it from mo, except occasionally ; when they do pay mo I give the money to Mr. Ensor. I have supplied ottier people with liquors. I have given beer away to privates. I co'ild not swear that I only received monoy once for beer that I sold to privates. I supplied beer on tho 30th -Novomber to three privates. I received payment for the beer. I put the money into Mr, Ensor's drawer. I usually gave the money 1 received to Mr. Ensor personally, but I did not on this occasion. I put it in tho drawer because I did not wish to put it in my pocket. Mr. Knsor has principally to do with tho back premises. Mr. Ensor was tho owuer of tho beer I gave to the three men. No one placed tho liquor under my charge, but I have access to t v o back premises to get whatever I require. It was in tiie back premises I served this liquor. Cross-examined by Mr. Wynn : I am a mess servant, and am paid by tho officers. They get what they like, and pay for it once a m&nth. sometimes I take the key, and sumetimes Mr. Ensor- Mr. Ensor has no control ovor mo ; he could not dismiss mo. lam not awaro that tliero are any liquors there that do not belong to Mr. Ensor. Re-examined by Mr. Gillies: I am mt under Mr. Ensor's ccoitrol. I do not know who ke?ps tho accounts. When I get anything for tho officers, I tell Mr. Ensor, who books it. By tho Court: I got the mjney that I received from the privates for Mr. Ensor Charles Cheverton, a privato in the Eoyal lingineers, deposed : On tho morning of the 30:h of November I went to tbo back premises of the officers' uio-s. I went to got a pint of alo. Corporal Dudley and Sapper Curtm wero with me. I got the ulo. Wo hud two pints and a amongst us Corporal Dudley paid for it. Ko put halt'-a-erown on the 'üb, and tho wuitor to. k it up.

For tho defence, Mr. W) uu suid: This case must bo dismissed. In tho first placo, he is ohaige I ivitli selling a certain quantity of spirituous liquorß. Thore has nothijjj b-an proved to .that effect; it had been jjrovid tflisJ *'• Hid Been edJd, -

Tho Bench: The learned counsel will find in a case of this kind, where a man is indicted 'with assaulting another with a pitchfork, and it turns out to be a hay rake, it will make no difference. Mr. Wynn : I am aware of that, your Worship ; but there is a great difference hero. But is this cas» proved ? But there is another objection. The Act says-—" If ho shall sell spirits in hi 3 house or the premises." Was it his house, or was it on the promises lie sold the spirits ? The witness Stuart had saidJthat Mr. Ensor had no control over him, and hemight go and do tho rery same thing again in spite ■ of his teeth, and Mr. Ensor cculd not discharge him'. There is no proof that this man was acting with theauthority of Mr. Ensor. Look at the whole aspect of the affair. Sir. Ensor is engaged by the officers to commit a breach cf the law every day. The officers wink at and encourage a breach of tho law for their own purposes, but when a poor man goes to get a pint of beer ho must be informed on. It is a most unfair and unfounded charge, which has been im-p-opcrly conceived and worse prosecuted. TJpon the merits of tho ease, this information ought to be dismissed with costs. Mr. Gillies said: Tho points of l.iw raise! by my friend arc, that defendant is charged with selling spirituous liquors and not. fermented, trad that the case of the prosecution being closed the Court has no power to amend I denj his position. The essenco of tho offence is tho selling without a license. There is no difference whether it is spirits, beer, or anything else. Then again beer is a spirituous liquor, for if it wore no 1, there would ba very little of it drunk ; but while some aro fermented and some distilled, the word " or" in tho Act 11 not intended as distinguishing two sorts of offences. If the liquor is fermented it must como under thia Act. Beer contains more or less spirit, and is therefore u spirituous liquor, more or loss. His Worship : Not in the Bpirt of the I.iconsing Ordinance. Otherwise there woul Ibe no reason for granting beer licenses and sj irit licen-es. Mr. Gillies: On this point the offence having been provtd, I hope the Court will order tho amendment of the information, and if my friend wishes it an adjournment may be granted. Tho other legal objection is one to which I huvo not adverted. My friend says that " his house" means a man's dwelling house, and that the premises mean the yard and buildings attached to his house. The house, I take it, means all the premises u*ed either for dwelling or other purposes These are the only objections raised, and I leive them bet'oro tho Court. Mr. Beckham : The 9th clause of Jarvis'rf Act Bays if any variance between tho information and tho evidence adduced, shall appear to bo such that the party charged has been deceived or misled, it shall h ■ It--ful for th-' Justice to adjourn the hearing of I u to soino future day, and in the meantime to e.nv.i The evidence is c ear that the room occupied by tl.o defendant is situated in the barracks, and ha is thero apparently for tho purpo-e of supplying the ofliceis' mess, and for ni other purpose, and if no conviction could take place, see what a sad state of things would arise. Kvery soldier in tho barracks might bo made drunk by the man catering for the officers' moss. Besides wo must look outside tho barracks and sea how it would uficct the honest publican who pays his £o0 yearly for a license. The caterer could sell his liquors cheaper than the publican, and the publican would he hunted out of the field by such people as the defendant. The penalty is not exceeding £50, but it is not peremptory us hitherto. Then, in caso of conviction, it was incumbent to inflict the full ponalty of £50, but now it must be shewn that the defendant cannot follow such a calling with impunity without a license. Mr. Wynn : Your Worship's remarl s apply a3 welt to the officers as the men. Mr. Beckham: Truo; and shall it be said that because informations are not laid in other cases that he is not to oufi'er in this instance. The Courtis bound to convict on this evidence, and orders a fine of £10 and <o4s ho paid, and if a case of this kind comes before the notice of the Bench again, the full penilty will bo inflicted. Perhaps tho defendant has been labouring under a misapprehension. I hope he has; but now there can be no excuse for the future. BREACHES or MUNICIPAL POLICE ACT. John Ellis was charged with a breach of the Municipal Polico Act, by riding on th > footpath. Ordered to pay a fine of 40s and cOßts. Charles I'he.'ps was charged with the same offence, and ordered to pay a (ino of 40s and costs. John i>m.vthes was charged with throwing night soil in the harbour below high watir mark.

Ordered to pay a fine of 00s. and costs. George Morgan was charged with, obstructing ttia public thoroughfare, by allowing his liorso to stand across the footpath. Ordered to pay 40s. and costs. IIIIKACIIES OF IMPOUNDING- ACT. Johanna Grace was charged with a brcacli of this Act, by allowing cattlo to stray. Fined 20s. and costs. Joseph Rcdshaw for the same offence, was fined 20s. and costs. Henry Clarke for the same offence, was fined 20s. and oosts. EMBEZZLEMENT. John Gallagher was charged with having embezzled several amounts ot money, the property of his master, Alexander Wright. Anna Wright deposed: lam the wife of Alexander Wright, dairyman, residing on the Whau Road. I know tho prisoner. He was in my husband's employment. His employment was to carry the milk into town and sflpply it to the customers. My husband when he was well collected fche money. Prisoner occasionally received money for the weekly accounts. The case waa withdrawn for the prosent, until witness's husband was prepared to attend, he baing very ill.