SUPREME COURT.

Otago Daily Times, Issue 12649, 29 April 1903, Page 2

SUPREME COURT.

m- BANCO. Tuesday, April 38.'. (Before his Honor Mr Justice Williams.) LAPPET V. MARSHALL. An appeal from the magistrate's decision convicting appellant of an ogenco under the licensing law. Mr Sim appeared for appellant, and Mr J. P. M. Praser for respondent. Tho hearing of this case was resumed, and learned counsel proceeded to open, the case for the appellant.

Mr Sim stated that the case was a. very important ono to tho .appellant indeed, not to much on account of the penalty which had been, imposed by the magistrate, but on account of 'the indirect penalty which followed from tho

conviction. If the conviction was sustained it carried an endorsement on. the lice.nse, and the inevitable result of the endorsement would bo

that the appellant would lose his license. He did not suggest that the appeal should be allowed on account of the hardship that would be inflicted on the appellant, but ho ventured to suggest that tho court would require to be satisfied that a case hod' been made .out. Alter dealing with tho position of tho court in regard to the appeal, in the courso of which • learned counsel cited Coghlan v. Cumberland (IS9B, I ch., p. 704), he said the appellant was charged with selling liquor to a person whilst in a state of intoxication. A great deal of evidenco had been brought to show that this 'man was in a state of intoxication on the'day the offence was alleged to have been committed. Be was described by Mr Duncan in, extreme terms as being "rolling drunk/' The other witnesses gavo a milder description. The facts, however, were that on tho afternoon in. question Magorian was in town on business. He went to the appellant's hotel'; had some drmk there, entered into a contract for tho purchase of the hotel, went out to get a deposit, got one from Mr Curtis, and handed it over; got some more drink, and then left tho hotel without assistance and took bis horses and dray home, a distanco.ot from four, to five miles over a difficult piece of road. He ventured to submit that it this case had not been complicated by the question-which had arisen in connection with tho contract to purchase, and that it undor the oircumstances referred to the appellant had beep prosecuted for.selling liquor to Magorian while in a slato of intoxication, the case would have been "laughed out of court. _ Unfortunately, the matter was com-' nlicatcd in the manner indicated, and it was rtimcult to separate the isßuo of tho ono case from the issue in the other. Learned .counsel here replied to points raised by his friend in citing Brown v. Bowden (1900, Gazette, L.R., p. 301), dealing with the degrees of intoxication. v Applying the conclusions of the Chief Jtfsfioa in that case to the present, and taking tho evidence for the prosecution as it stood, he submitted that tho court;would hesitate in Bay- • ing that Magorian was in such a state of in- ■ toxication that it would be an offence to sell wry drink to hiin. Intoxication was all & question of degree, and a man took alcoholic liquor for the purpose of being affected by it. The state o[ intoxication contemplated by tho section of tho act under which appollant was convicted was a slate of intoxication that a further supply of liquor to the person in'question made that person really incapable ot taking care of himself. Learned counsel here cited Poole v. Cooper (3 Gazette, 1i.11., p. 198), where Mr Justice Edwards discussed what constituted drunkenness. It was important to consider the circumstances under which tho bulk of the evidence for tho prosecution was first given. It was given in connection with an. action brought by Magorian to recover £100 paid to Laffey. It was thus necessary for him to make out that he was so drunk that he did not understand what ho was doing. He knew perfectly well that the more drink bo made oat to have bad during the day the more likely he was to be able to establish tho necessary drunkenness on his'part to enable him to escape from the contract into which ho had entered. Whatever Mr-Curtis now said as to Magorian's condition, the best evidence was given by the fact that he lent Magorian £100, and did it without any hesitation.- Bain said Curtis simply asked. " Is it dinkum?" and gave him the money when Magorian said it was all right. If -Magorian was in the condition Duncan said he was, then was it likoly , Curtis would have given him tho cheque. He ' submitted an act of a shrewd man like Curtis outweighed tons of opinion. These were a horse-racing and hard-drinking set of men with whom Magorian was mixed, anfi they evidently considered it their duty to help him out of this difficulty h'o had got himself into. It was very significant that some of these witnesses were not called until the rniddlo of the defendant's caso. Ruthven, for instance, who was evidently a friend of Magorian'B, was not called -until special .leave had been obtained from tho magistrate. Learned counsel, after submitting that Magorian's own admission indicated that ho knew quite welt what ho was doing, said he would call tho witnesses who took part in the

transaction, and they would show that Magorian know perfectly well what he was about. There was no suggestion that Air Irwin had any reason, fop acting improperly in the mattor. !

He was not Mr Laffey's solicitor.. He happened to go into tlio hotel, and was asked to take part in the matter. . Ho-was satisfied thai Magorian was in a condition to make the con-

tract, .and acted on his ( behalf. . What motive could Mr Irwin h&vo for allowing Magorian to make a contract unless he was satisfied' the, thing was perfectly proper? Mr Irwin must

liavo known the law perfectly well, and knew that if Magorian did not understand what ha

was' doing the contraot could be'set aside, and- that ho (Mr would be placed, in » false position. There was no!, a word' said against Mr Fea's integrity or honour, Unless his Honor concluded that these men were committing perjury ho would certainly hesitats before sotting aside their evidence. Surely it would not bo suggested that Mr-Fca would sacrifice his reputation as a business man for the purpose of securing a commission? A great deal had been made by the magistrate in the'oivil case of the signature of these documents. Learned counsel woull put it to his Honor that the evidence showed that Magorian never learned to write till he was grown up. The sample of his writing given on the previous day showed ho was anything but a fluent writer.' Such a man's writing would piobably be affected more easily than a practised writer, as the result of indulgence in alcoholio drinks. Further, having eommifted himself to exaggeration, Magorian had to' stick to it. Ho submitted theVourfc would have no hesitation iu concluding that .the story told by the witnesses for the prosecution was grossly exaggerated, and that Magorian was not in such a state of intoxication that it was improper to supply him with liquor. John Laffey (appellant) called by Mr Sim,' gave evidence that on the afternoon of September IS he was standing at the door of his hotel, when Magorian cams up and said, ••What about the Gridiron Hotel?" After some conversation witness told, him if he wanted the hotel to go to a solicitor and make, an offer in writing, Witness then narrated the oircumstances under which Magorian was. alleged to hare entered into the contraot to. purchase—the cvidenco, save for a few discrepancies, being on all (ours with that given in the lower court. When the price of £4775 waa arrived at Fca said a deposit was necessary, and Magorian went out, saying ho 'could easily get it.. Magorian had only two " pony beers " ;up to this time. Fea and Irwin, who went, 'cut with Magcrian, came back with him, and Fee gave witness the cheque.. He would swear .that he never left the hotel himself in the interval. He bought the Gridiron Hotel about' five years ago for A' 3650. Cross-examined: In "his opinion * man was; drunk when he could not.walk; He would not| .bvliovo the evidence of Mr Sievwright or Mr' James if they said Magorian was drunk when he came to them on the following afternoon. When he left. Magorian at 2 o'clock that afternoon he was perfectly sober,' Ho had never seen Magorian drunk or. stagger-' ing. He was perfectly sober all tho time tha negotiations were going on, but any nian making a big deal such as he was making might get a little excited even if he had' no 1 liquor.

David M. ,Fea, auctioneer, said that Laffey would not give him the usual commission, but offered him £50 if ho brought about the sals of the ■ hotel, When ' witness . looked at, Magorian'3 signature to the first offer of £4700' he said, " It's a very bad signature." ifogorian remarked that he had not'got his glasses. It' was false that; Magorian would have fallen into the gutter on his,way to andfrom Curlis's if ho hud not been supported 'by witnexi and Irwin. Laffey promised him the valuation of tho hotel furniture. • Cross-examined: Witness learned nearly all ho knewabout tho Gridiron-.Hotel from Laffey. during tho progress of the negotiations. He remembered Magorian 'saying something about his offor of .£4500 being made on the' understanding that he -was. buying afteohold. On tho morning after the deal Curtis met hiui and intimated his intention of stopping tho cheqae, and referred to a dispute he had had with Laffey. Subsequently Curtis agreed, as witness had not been long in business, not to interfere. AVitness would have no hesitation in doing business with Magorian again under similar circumstances. Witness bad not got his commission from Laffey. Burrowes S. Irwin, solicitor, gave evidence that he went to Court's Hotel to keep an appointment with a man named Glen, of Ida Valley. He did not take much interest in the negotiations at first, but subsequently wrote out tho offers referred to at Magorian's request. Through the whole of the negotiations Magorian snoko coherently and intelligently. Wik. ness did not know .when a man was drunk. From the way Magorian walked and spoka witness concluded he was in his ordinary condition. Magorian never walked straight in hia life, and had a "seafaring'.' walk. Witness had no hesitation in taking part in the transaction. ' , . The cross-examination of this witness was, deferred til! the morning. .