SLY GROG-SELLING AT BALCLUTHA. THE DEFENDANT CONVICTED.

Otago Witness, Issue 2203, 21 May 1896, Page 17

SLY GROG-SELLING AT BALCLUTHA. THE DEFENDANT CONVICTED.

William Moir, boarding-house keeper, of Balclutha, was cnarged on Monday, at Ifilton, bafore the stipendiary Magistrate for the district, with unlawfully selling beer and whisky without a license on April 24. Inspector Pardy conducted the prosecution, and Mr D. D. Macdonald appeared for the defendant, who pleaded not guilty. Mr Pardy said rhe defendant was not one of those publicans who lo>t his license through prohibi'ion, but had started business in Balclutha since. Pci-er M'Neitl, builder, who resided at Balclutha, remembered being at the defendant's place afc about half-past 6 on the evoniug of the 24th of kst month. He got tea there, and afterwards handed Mr Moir a cheque for £3. Mr Moir said he hid not change, gave him Us, and promised to give him the balance next morning. He afterwaivis went away for an hour and returned about 11 with James llattray and Donald Sutherland. He then had some hop beer. He did not remember having anything else. He had no whisky at Moir's. He did not ask either Mr lUtfcray or Mr Sutherland to have a drink. They had a drink with witness, but be could not say what they had. He did not pay for the drinks. Sutherland was staying at Moir's. He and Moir came in'o the room where witaes* and Rattray were. Moir was going to treat Sutherland, and he said to witness and Kattray, "You had better have a drink too." They had one drink, and Mr Moir shouted. There was no rnone/ paid for tbe driuks WitneßS had no drjnk before that. He asked Rattray to have a drink, and Moir said he had none. When Btoir brought in the drinks for witness, Rittiuy, and Sutherland, ho said it was hop beer. Ha had a glass or two before ha went to Moir's. Mr Pardy asked witness where he got the drinks. Witness replied that he had soms drinks out of a bottle which a man had at a sale that day. Mr P<irdy desired to know where witness got the liquor, but Mr Maodonald objected to the witness being asked the question. His Worship said_ he was satisfied that the witness was fencing with the que-ition, and was not answering straight. -He would allow the inspector to ask the question. Mr Pardy (to witness) : I shall prove that you were the_ worse for liquor when you lef c Moir's. Where did you get that liquor ? Wit«es3 replied that he had liquor before he went to Moir's, and he did not remember getting more than one driuk there. Mr Pardy : How ia it that you cannot remember a'iy more there ? Witueaa : My memory is not very good, but I had a gla»s or two before I went to Moir's. How is it you can lvmerabar the hop beer but not anything else ? — I don't remember it. You remember a man coming there and asking about a cheque ?— I don't remember. Did you see R-ibert Kerr there ?— Kerr was there no time scarcely. He did not have a dt-ink. In reply to a further question, witness said Kerr came to the dojr and said he wanted to see witness about a dray. Mr Pardy : Where did you set this liquor you ware elevated with ? Witness asked his Worship if he was supposed to answer the question. His Worship : You are supposed to answer the question. You were there from 7to 11 o'clock. Witness : I had a drink or two at a sale. Mr Pardy : Were you sober when you weut to •Moir's? Witness : I was not drunk ; but I admit that I had a glass or two before that out of a fla^k. Mr Pardy : I shall prove that you were drunk. Mr Macdonald : I submit that Mr Pardy cannot cay this. His Worship (to Mr Pardy): You cannot s»y that. You can only caution him to speak the truth. Witness : I am speaking it so far as I know. Mr Pardy: You were sufii neatly sober when you went to Moir's to know that you only ha,d hop beer, and you admitted that the others only had hop beer. Witness : I don't know wh*t they had. You told us that they had hop beer. — I said that I had hop beer. You were sufficiently sober to know what you had at Moir'a ?— Yes. Did Kerr get any part of this cheque ?— When I got the £2 1 gave Kerr. £1, aud got it back that u'ght. Cross-examined by Mr Macdonald, witness said he was not tipsy when he went to Moir'a, but he had had a gUsg or two during the day. He was as tip-y when he left Moir's as when he went there. Tbe only drink he had at Moir's was a gla«s of hop beer. Mr Macdonald : Is it not a fact thab you had ssk^d Moir before for drink aud he refused it? Witness: Yes. With the exception of that transaction with regard to the hop beer, which you say Moir shouted, that was the only drink you had in that place?— Yes. And if you wera tipsy it was caused before by what you got out of those bottles ?— Yes. Robert Kerr, blacksmith of Batclutba, remembered going to Moir'a on ths evening of the 24th of April last. Ha went to take M'NeUl home, bscaiwe he thought that as he had a cheque on him he might go to Lawrence, Kaitang*ta, or Stirling by the morning train to get drink. M'Neill looked like a drunken nun, but witness cmld not swear that he was d runk. Witness had no shire in the cheque at all. He got £1 of it. He did not go to Moir's with Constable Chr'stie. H-s fipoke to j Moir in front of his door. Christie wa3 present, and he left witness and went into the house. The £l hi got from M'Neill was pirt'of the chequs. He got it on Saturday morning, and gave it; back to M'Neill in tbe even i up. By Mr Mncdonald : Witness a*w M'Neill at a distance before he went to Moir's housa. He could not say whethsr M'Neill was drunk or sober then. There wera rumours abouc tint M'Neill was tipsy before he went to Moir's. Witness was so satisfle I that Al'Neill was tiysy tluir he went to look afLer him. It was half-pist 8 when he | 'saw Constable Christie first. He "aw Christie about M'Neill, and then went down to Moir's. In answer to witness's inquiry about the cheque, Mo>r told him that he had given M'Neill 14s that uight, and was going to, give him £2 iv the morning. Witness was quit 9 satisfied that the money was all right. Moir asked witness to take M'Neill away, as he was talking. Later on in the evening, finding that M'Neill was not at home, witness went back to Moir'd. It was about 20 minutes to 11. Moir w<i3 then anxious for witness to take M'Neill home. Donald Sutherland farmer, of Wai wera, stated that he stopped at Moir's on the night of the 24th of April. He saw M'Neitl there that night, also Mr Rattray. He had a drink with them. When he went to the house Moir said witness would be cold and he would phout for him They went into a worn where M'Neill and Rattray were. Moir asked witness what he would have, and he said beer. Moir ako sad he would shout for the other two. He brought in the drinks, and said it was hop bser. Witue3s took it to be hop beer. He could not s*y what it wa9, aud he did not remember what it was. Witness told Constable Pascoe that he could not say who called for the drinks, but no money passed. He did not tell the constable that they had whisky. By Mr Macdonald: Witness understood that Moir shouted. There wa3 no money paid for the drink. To hia Wor-hip : Witnes 3 would swear that the drink he got wan not whisky. To Mr Pardy: Witness took the drink to be hop beer. To Mr Macdonald: Witness heard M'Neill taking for driak. but somebody said he would set

no whisky in the houso, and he got none. If 'Neill was a little bit on. James Rattray, blacksmith, of Balclu'ha, was at Moir's on the night of the 24th of April, and saw M. Neill. He had a drink in M'Neill's company. Moir said he was treating Sutherland, and they had b^ltr bave a nip too. Witness had some whisky. He did not know what the others had. M'Neill did uot ask him to have a drink with him. That wan about 7or 8 o'clock. M'Neill was right enou s h then as regards sobriety. He believed Sutherland said something about hop beer when the drinks were got. No one else that he could remember said anything about hop beer. By Mr Macdonald : M'Neill was a little bit talkative. No o.ne p»id for the drinks in witness's presence. He understood Moir was treating the company. Cons able Christie deposed that on tho 24th of April last he went to Moir's place at the request of Robert Kerr. It was 8 o'clock in the evening. Wit«e3s went inside the house, and Moir came out with him. lie asked if M'Neill wa3 inside, and he replied " Yes." Witness said Kerr wanted to see him about a cheque. Moir stated that he cashed a cheque, and had given M'Neill 143 Kerr asked him to keep the balance, and he would call for it in the morning At half-pist 11 witness saw M'Neill in his hut, and he was drunk. There was no doubt about that. He was in a different state to what he was in when witness saw him previously at Moir's. "Witneis knew he was drunk becau-se he got up to walk to the fire-place and fell down. Witness put him to bed, put the light out, and left him. By Mr Macdonald : Witness saw M'Neill when he went to Moir's. He could not tell then whether he was tipsy or not, as he wa3 sitting down. Witness saw him previously in the street at half-past 5. He had then no signs of liquor on him. This closed the evidence for the prosecution, and Mr P^rdy observed : Mr M'Neill Has gore dead back on us. Mr Macdonald said that was a very improper statement to make to tho beach. He did not know what M'Neill said to the police, boti he kn-nv what he said in court ; and he submitted that the case must be dismissed. The facts were apparently quite clear. Judging from the evidence of Korr, M'Neill was known to be lipßy some time during tlie afteruoon. It was quite true that Constable Christie said he had no appearance of being drunk, but notwithstanding his evidence it \v»s perfectly clear ih\t Kerr heard M'NVill had a chequ", and that he was tipsy. K«rr and the constable went down to Moir's, and there was not the slightest slur thrown upoa Moir so far as the cash transaction was concerned. It was hinted by Mr Pardy that M'Neill had not douu what w*a expected by the police, but his Worship had got to deal with the evidence as it was given in the witness box. If the prosecution proved that M'Neill was sober at 5 o'clock, and then at halfpast 11 w,.s drunk, surely they could not ask his Worship to convict on that account. It was ridiculous. „If a mau was dying for whi-ky he could get it' in lots of places besides Moir's; and if M'Neill wanted whisky h • could have got it at a great many other places. Tnere was no doubt, about that. That was one of the leiulto nf prohibition in Balclutha, and no oue could deny the fact that if anybody wanted whisky it could be got there. M'Neill him«elf said he did not get -it at Moir's. Could his Worship, then, turn the evidence upside down ? His Worship : Ha does not say positively that he did not get it,. He siys he does not remember am thing that he got but hop beer. Mr Macdouald : He says that is the only drink he got there that night. Learned counsel proceeded to point out that three of the witnesses corroborated the evidence of ea h other as to there be iit? nothing in the nature of a' sale, aud observed that his Worship could have no option but di.miss tha case, as the evidence showei c inclusively that there was nothing in the nature of a sale. In reply to the magistrate, Mr Maclooald siid he had n> evidence to call. His Worship, in giving judgment, said : The first fact which is perfectly clear to me U that tbeie was a consumption of spirits— of beer and whisky That there is no doubt at all about The evidence of the witness James Rittray is clexr enough that it wa» whisky, although the other witnesses talk about it as hop beer. Su herUvtd says : "Ih *d hop beer, and the others had tbe same as me." But I have no doubt whatever, taking the evidence a? a whole, that whiiky was consumed in that pla:e. Mr Macdonald observed that he did not think Sutherland said the others had drinks the same as he had. His- Worship siid he was psrfectly °atisfied that whut was called hop beer was whisky. It was stated that Moir sud he would trsat Suthe land, but people don't treat others to a Dip of hop beer., Mr Macdmald: What I want to draw your attention to is this : Your Worship said Sutherland swore .that fchey ha-l drinks the same as he did. He distinctly said he did uot kn ,\r wh it they h^d. His Worship : I will come to the character of the evidence of these witne3ses presently. As to whisky being drunk I have no doubt whatever. I don't believe a word ab>ut its being hop beer. I believe the whole of it was whisky. Ibis quite clear -that part of it was whisky. Moir said to Sutherland : " You are cold ; I will shout for you" *, but who ever heard of a mau offering hop bear t') another who was coM and starving. It is absurd on the face of it. There is no question to my mind that this was whisky. The next question is as to this man M'Neill himself. On the face of the evidence it is psrfectly clear to me that M'Neill vras not drunk when he went the second time to Moir's hous'. Of that I am quite satiafie J. And when he was taken away at 11 o'clock -and ha h«d only been afc Moir's house the whole of that tims— ha was very drunk; and he hitn;:lf sqts that he doe 3 not recollect anything of what took place after having one glass of hop beer. <He was there for four hour 3, and can recollect n,otbing of what took place afterwards. That unquestionably shows that he came out of that house very drunk indeed ; and he was founa very drun'< at half-past 11 in his hut. Toe next, question is as to payment. They deny payment ; and it was set up thivt these men never pxid a shilling ; that nobody paid a shilling ; and that the whole of this drink was a gifc by Moir. A cheque for £3 was pissed over to 'Moir by the man M'Nsill; and it it set up that this chsque was given back, or part of it. It was accounted for in this way : that there was chaage annunting to 14s. Well, suppoj ng ther> was change of Us. There waj the Ms in M'Noill's hand ; but chat doss not dispoje of the 14* ; even if I ?cc<-pt the evidence about the £2. I think this story about the bonowing and reborrowing that toolt place afterwards shows that there is something behind this that has not been disclosed here at any rate. I now come to Kcrr's evidence, I think Kerr probably i 3 thu niO3t reprehensible of the witnesses I have heard to-day. I cannot speak sufficiently strongly of the way in which he gavp. his evidence— of what I consider the uutruthful way in which he acted iv the witness box. Hs says 'he went down to Mo'r's to ta&e M'Nuill home, because he thought that M'Neill had a cheque aud ha might spend it at Lawrence or Stirling, when, according to the evidence of Constable Chiistie and hitmelf, he h.»d bsen at irtoir'* hou-se before, aud had Moir'<s asburauce that the rest of the money wo aid not be handed to M'Neill till the moraing, as he meant to take care of it Yet Kerr says he went down there to take M'NciU home to his hut, because he thought he might leave by the next morning's train to go to Lawrence or some other place and spend the money ; but Kerr admits that, though so thinking, he did not take the least trouble next morning to ascertain whether M'Neill went to any of these places. Kerr's s'o*yis so improbable that it throws discredit upon his whole testimony. I have the strongest suspicion that there is a great deal more in this cheque than appears to- the court. I am. not prepared to believe the statement that liquor was given on this occasion. Mv belief is that it was sold and paid for. Though the cases are not altogether parallel, I shall follow the lines taken by Mr Justice Dtjnniston in the case of Schultheis v. Wilson, and take on myself the responsibility of discrediting a great deal of this evidence ; and, judging from th^most manifest falsehoods told by some of the witnesses in the box, and from the entire consideration of this case, I come to the cooclu-ion that there wa3 whisky sold by the defendant, and that it was consumed on his prenv'ses. Defendant must, therefore, be convicted. Mr Macdonald asked the court to fix the security for appaal.

His Worship »3&ed if there imd been any pra*. vlous convictions. Constable Christie replied that there wera two— the first on the 13th March 1895, when tho defendant was fined j£lo and coots or one "month'simprisonmentj and the second on October 1595, when he was fined £50 or three months' His Woiship : I consider there has been very little el« than a eort of conspiracy on the part of the witnesses to tell falsehoods to day. Inspector Pardy applied for confiscation of certain liquor Beized on the defendant's premises. Constable Christie deposed that he executed a search warrant on the Yth inst., and found 18 gallons of beer (a full cask), eight bottles of whisky, eight bottles of stout, three bottles and a-half of beer, and half a bottle of gin. The.police held possession of them. His Worship ordered the liquor, to be con« fiacatftd. n , Mr Macdonald asked that the liquor be retained till the decision of the Court of Appeal, and His Worship agreed to the course suggested. He subsequently said : This is the defendant's third offence. It is a very bad case. This man was not a publican in the district before prohibition. He has been convicted in March 1895 aud in October 1895, and now he comes here again. I am inclined to give him no option of a fine at all. It seem? that no fine has any effect <on him. (After a pause.) I wilt give the defendant one more chance. He is convicted and fined £80 and costs, in default four calendar months' hard labour. The defendant was required to find a surety for £20 that ho would prosecute the appeal. An information against Jessie Moir, wife of th« defendant, was withdrawn.