THE LICENSIKG ACT.

Otago Daily Times, Issue 12043, 15 May 1901, Page 8

THE LICENSIKG ACT.

I » * CONVICTION FOR SUNDAY TRADING. v In the Supreme Court, in Banco, on April 17, * Mr Justice Williams heard argument of the ? mle nisi for prohibition to quash a conviction j under iho Licensing Act for exposing liquor for , gale on a Sunday. Mr S. Solomon and Mr W. 5 A. Sim appeared in support, of the rufe nisi for j prohibition; Air J. F. M. Frr.ser appeared to I phew cause against the rule. The facts were that on the 9th of J ammry Inst Joseph Biggins, licimsec of the Great Northern Hotel, was charged on two informations—iirst, that he, be- ? ing the holder of a publican's license, did, in J his licensed premises, on Sunday, when licensed ' premises are directed by the said act to be * closcd, sell liquor to Edward Dormer and 1 others. Then there was a second information t that on the same Sunday, when the premises ; should have been closcd, the defendant ex- * posed liquor for sale. These informations wero i heard together by consent. Judgment was re- . served, and the defendant was convicted on the : second information /or exposing liquor for srlc. t The defendant, by his counsel, then moved for a writ of prohibition. , His Honor yesterday gave judgment as follows:— In proceedings by way of prohibition under. J section 116G and the following .sections of " The , t Justices of the Pep.ce Act, 1832," I agree with ! Iho opinion expressed bv Richmond, J., in ex ' parte Day (FN.Z. Jur., Ji.S., p. Ill) with respect | to similar sections in nn earlier net, that if j the ease is one which a judge could have left I ! to a jury th 6 conviction must stand. In the 1 present case the question is whether there was ' evidence to go to a jury in support of tho charge; that on this particular Sunday liquor ! was exposed for sale in the accused's hotel. [ It appears from the evidence that shortly be- > ffore 3 p.m. Sergeant Gilbert saw a number o? I men going in and out of the hotel, and \\ i woman going in and out of tho door and looking up and down the street, apparently on the V'atch. The'ioufcont went for a constable, mtfl i when he camc back tho woman v?as still there. , Then in about 15 minutes they Haw 15 or 1G men going in and out. Then the two I went to the back door and met two men in the , pass-age coming out. Then the}' saw the land'ord in tho bar with his coat off, the slide of , the bar up, and four men in tho passage in front of the slide. Two of them had glasses in their hands with Jiquor in them. There were three other glasses on tho leaf of the ' alide, apparently recently emptied, and two ! empty gliws on the slide in the King street passage with fresh froth on * them. All the four men said the land- ! lord had shouted for them, and the landlord ' said the same. All the men gave false names. > It is n matter of common knowledge that in a publichouse the bar the place where the liquors are kept, and the magistrate, like a juryman, was at liberty to appl yto the subject before hint that general knowledge which any man may be supposed to have. If the slide cf the bar is up ho that anyone looking into the bar could see what whs iu the bar, tho contents of the bar are exposed, though no witness may come forward and t?av ho has actually seen what was in the bar. If the liquor is thus exposed, and the surrounding circumstances lead to the conclusion that liquor could be had by discreet persons on paying for it, then tho liquor is exposed for sale. The evidence, to my mind, abundantly fcupport* this conclusion. The point made, however, in the present ciwe is that there was another information laid against the accused for selling liquor on the seine occasion without n license, that both informations were by consent heard together on the saute evidence, and that the magistrate dismissed the information for selling, but convicted on the information of exposing for sale. It is contended that as the magistrate dismissed the information for celling lio must have believed the witnesses who swore that the liquor wis given them, and-that- if there was no sale to these persons there was no o.Ypo?nro for sale. What reasons 'the magistrate had for dismissing the information for selling I am unable to say. It is impossible to suppose that the magistrate as a sensible man really believed the evidence of the witnesses that "the liquor was a gift. I should rather conclude that lie did not quite appreciate the oft'oct of* section 170 of tho act of 1881, thought that the question of tho proof of sale to any particular j>ersou might be in dubio. and derided on wlmt he thought the surer ground of exposure for sale. The dismissal cf the information for selling, liko auv oth?r verdict of acquittal, moans in law no* more than that there is no sufficient prooi of <di\ rwt is not'an affirmative finding that there was no sale. In order to prove an exposure (or sale it is not necessary to prove an actual sale. Evidence that might leave it doubtful whether there had been a sale to any particular person might, well bo sufficient to satisfy any reasonable man that the bar wa.9 open for the purpose of selling liquor. Of that there is ample evidence in the present case, ■and the only question for this court is whether there'whs any such evidence. Rule discharged.