SLY-GROG PROSECUTIONS.

Otago Witness, Issue 2493, 25 December 1901, Page 26

SLY-GROG PROSECUTIONS.

A CONVICTION SECURED. CBt OtTE Speoiai. Reporter.) TAPANUI, December 20. At the Magistrate's Court at Tapanui this morning a number of informations for &ly grog-selling preferred against James O'Dowd, boardinghouse-keeper, were heard before Mr George Cruiekshank. S.M. Sub-inspeotor Kiely prosecuted; Mr Neave and Mr Sinclair defended. The first information charged the defendant with belling uuisky and beer on the 13th inst. Mr Neave said chat before the case proceeded he wished to make the application that the case be treated as an indictable one, in order that the accused might be tried before a jury. The offence was punishable by three months' imprisonment under the act of 1890. Accused was liable on a third conviction to six months' imprisonment. He might have been already twice convicted. Sub-inspector Kiely observed that the information was laid under the act of 1£95. Mr Neave said that there was nothing to hinder the court during the proceedings to alter the information. The accused was before the court, and whatever offence the facts disclosed" rendered the accused liable to" eorivictfofe. The Magistrate : He is charged under the act of 1885, iiV which the jnaxinrampenalty is three months' imprisonment. If a man were convicted, three, or four, or five limes under that act, he is only liable to three months' imprisonment. If I were to sentence an accuaed to a day longer the sentence could be quashed. You have no right to go to the jury. The prosecution haa no right to ask for a sentence longer than three months, as they have done, to proceed under the act of 1895. The application must be refused. Henry Price, a labourer, gave evidence that he had resided six mouths in Tapanui. He was in the township on the 13th inst. He knew t]ie Commercial Hotel, kept by O'Dowd. Witness was in the bar of that hotel and saw drinking going on. People were drinking whisky, beer, and phandygaff. Witness had drinks of that description. Some he paid for ; some he did not. During the time he was there, 50 or 60 people must have passed through the place. He left there at 10 o'clock, and took a bottle of whisky away. He paid 63 for the bottle of whisky. The whisky was in a beer bottle. Witness wa« pretty full at the time, and he did not know exactly where he went after he left the hotel. He went up to Mr i Lind'» place, and laid on the verandah. j Cros?-exammed : Witness got drunk in j the house. He was in the place from 5 o'clock till 10. It was Tapanui show day. Witness came from Southland before lie j came to Taganui. Witness had been convicted before the court in the past — about three years ago. The convictions were ! mostly for drunkenness. He was convicted j for rowdyism, for the theft of an overcoat, and aggravated assault. For the latter offence he was sentenced to six months' imprisonment. To Sub-inspector Kiely : Witness was never eoilvicled~of perjury. He had been working in the one place for the last six months. John S. Lind, blacksmith, gave evidence a« to having seen Price drunk early en the morning of the 14-th. He was lying in witness's conservatory. There was an "empty bottle by the side of the garden path outside. Cecil Branigan, rabbit inspector, gave evidence that he called at O'Dowd's on the evening in question. He saw Price there and some other men. Price, shouted. Wit- , ness had a drink of Lazenby's lemon squash and soda. Personally, witness hail 'not ha-d an alcoholic drink for a couple of months. He did not notice what Price had, or whether his drink was handed to him, or whether it was poured out of % bottle There was a bottle of Apenta water at hand, or a large bottle with an Apenta label on it. Witness picked it up, examined it, and waa going to pour some of it in his lemon squash to see how it would taste. O'Dowd remarked that it would spoil it, and witness put it down. To Mr Neave : Witness did not know what Price had. He did not see Price get a bottle of whisky on the night of the 13th. Price accosted him, and claimed an acquaintance with him. H» »aui he was a farmer at Lumsden, and asked witness to strike a match and look at him. Witness did so, and said lie thought his face was familiar. Witness thought he was a fanner that had come up for the show. He afterwards said he was doing some wood-cutting in Tapanui, and he invited witness, if he were ever passing his camp, to call in and have a cup of tea. He then invited witness to have a drink. Witness declined 5 but Price pressed, and witness, not wishing to

offend him, had the drink he had mentioned. Subsequently witness learned that tne man had imposed on him ; that he was not a farmer at all. Constable Miller told him that he was a rogue and a vagabond and a convicted criminal. Witness then recollected that he had encountered the man at Lumsden. He assisted on one occasion an hctelkeeper there in ejecting the maa from the premises. He was, hov, ever, told by Mr Chewings, of Mo.«sburn, that the man , was in his employ, and that he was an excellent worker. Witness did not know whether Price had called for whteky. Witness though 1 ! he would have heard him if he did. Witness did not hear him call for whisky. i To ths Magistrate : Price drank an ambercoloured liquor. He did not look like a man who drank lemon squash. , To the Sub-inspector : Witness was quite prepared to believe the man had lived a sober, industrious life during the past six ' months. William Dawson gave evidence that on the niefht of the 13th Price, who was drunk, called at witness's place and asked where Mr Lind lived. When witness was telling him he pushed himself inside, and lay down 011 the sofa, saying he would be all right there if he had a blanket. Witness went for assistance to get him out, but the man j went away of his own accord. I Constable Matheson gave evidence as to exsecuting a search warrant at O'Dowd's I on the 13th inst. Witness knocked at the bar door, which was opened by someone. Witness went in and saw'O'Dowd coming j from behind the bar. Detective Cooney and I Constable Herlihy were with witness. [ Witness read the warrant. O'Dowd was not sa-t'sfied with witness's reading of it, and -wanted it read again. Witness handed it to Detective Cooney, who read it in detail. Witness then went behind the bar and .found a barrel of - beer, two bottles labelled- " Apenta,'" a*nd a bottle labelled " Ginger Ale." They all contained whisky. This closed the case for the prosecution. Mr Neave addressed the court. He contended that a prima facie case had not been made out. The only evidence they had was that of a man wlio was admitted to be a. drunken rowdy. Was it likely that O'Dowd wonki have served a, man like that, who, moreover, was a stranger to him. His evidence was not only unreliable, but was contradicted ki parts. Mr Branigan had said that if the man had called for whisky he would hove heard, and he did not hear him. His Worship was sitting as a jury. A jury would give the accused the benefit of the very apparent doubt in the case, and counsel confidently believed that his Worship would do likewise. His Worship adjourned the court for 10 minutes to consider the evidence in relation to Mr Neave' s argument. On resuming, he stated that he considered a prima facie case was made out. Mr Neave then called the defendant, who gave evidence, in which he denied supplying Price with intoxicating liquor. He did not supply him with whisky, beer, or shandygaff. Witness saw Price on that particular night. If he had asked for whisky or beer he would not have supplied him with it. Like everybody else, witness kept whisky j or beer in the house, which he sometimes r offered to his friends ; not very often. He ! might ask -a boarder or a person doing busi- ! nes*3 with.' him to have a drink. He did not knovf Price, and he would not offer whisky -to *; jnan he did not know. Witness only remembered seeing Price on one occasion, and that was a* the time he came in with IMr Branigan. He asked for the same as Mr Branigan — namely, lemon squash. Cross-examined : Witness went into the • .hotel a-fter it lost its license. On the nig-ht of the show the public had free access to the place. There were 30 or 40 ofjople in to tea that night, and the house %as full. He did not think there was that j&any in the bar. When witness saw Price in his house he was sober. Witness had been convicted of sly grog-selling, and had .Jaken his sentence out in gaoL The Magistrate : Were you doing a good trade in temperance drinks that night? Witness: Nothing extraordinary, sir. There would be a big crowd in the house after the show?— Yes. All the farmers round about? — Yes. Might not Price be in there without you knowing it? — No, not very well. How many might there be in the bar at one time? — Not vow many. Wovld there be 20? How big is the bar?— Not very big. Do you let them in singly? — Oh, by twos and threes. . . N Might you not have made a mistake, and given a whisky instead of temperance drinks, if you keep whisky in an Apenta bottle?-^ 1 Oh no. sir, not very likely. I Mr Neave (to his Worship) : Is not the I court straining a little too much now? 1 His Worship said he was satisfied that j there must be a conviction. He would rs- (■ serve sentence. I A SECOND CHARGE. I was then charged with exDosing liquor for sale on the same date. Mr Neave appeared for accused, Vho pleaded not ffw^ityMr Neave said he would admit the evidence given in _ the, last case. . The 6t" Constable Matheson were read, to the effect that he went into the accused's house, and found the liquor (produced)— namely, three bottles labelled *' Apenta and ginger ale," which contained liquor, and a small barrel of beer. Mr Neave accepted this as evidence. Constable Matheson gave evidence, in addition, that he went into accused's bar on the 13th inst. He found there two men named Cullen and Potts, and also the ac-' cused. Witness saw bottles on the shelves, and some of these contained liquor. ; Constable Herlihy deposed that he saw a, number of bottles on the ehelves. There , was a bar in the room like an ordinary bar-room. There were bottles on the shelves, 1 and the labels on these bottles indicated ■ that they contained temperance drinks. A stranger coming there, if not initiated, would think that it was a temperance bar. Some of the bottles (produced) taken from the shelves contained whisky, although they were marked with the labels of temperance drinks. Cross-examined : Witness would swear that the bottles were not underneath the counter. Constable Matheson, recalled, said betook the bottles (produced) from the shelves. I They were not underneath the counter. I Mr Neave submitted that there was no I possible evidence to support a conviction. In the last case the police stated that admittance was got to the bar by knocking. The constables knocked, and they entered by virtue of a search warrant. The police had actually to get a warrant to get to it. * His Worship : There were other people there. Mr Neave eaid it had not been proved Jkey^qt drjufe t fee Jii«lWftfili tfeSiJC

[ did not get drink. Why did the police not call these men? It was admitted the door wa-s locked, and the police could only get in by producing a warrant ; yet the court was asked to say that the accused was exposing liquor for sale. If he (counsel) had a cellar full of liquor, and had 50 friends in it, if the cellar were under lock and key, it could not be said that he was exposing liquor for sale. The evidence in this case was simply the same as in the last. The two were practically one case. His Worship said that he was inclined to be with counsel. There was the same set of circumstances m this as in the last case. It would be practically convicting a man twice on the same offence. The case would be dismissed. A THIRD CHARC4E. Accused wa3 then charged with keeping liquor for sale on the 13th, and with selling liquor on the 9th and 10th inst. Mr Kiely said he offered sio evidence in these cases. Mr Neave appeared for the accused, who pleaded not guilty to each information. The informations were dismissed. THE SENTENCE. On the court resuming after lunch, his Worship raid he would hear what counsel bad to say in mitigation of the sentence in the case in which accused was convicted. Mr Neave said that these cases were only of a quasi criminal character. The accused 'was a married man, with a large family. The offence of which he had been convicted was connected with a trade which the public almost compelled him to conduct. He was one of those unfortunate persons whom tne public compelled to commit an offence. - His Worship : He had the option' of a fine last time, and did not take advantage of it. 'Mr Neave : He ' had to on accotint of peouniary difficulty. Counsel felt constrained to ask the' court to take a lenient view of the case. Counsel believed that this was the first case of imprisonment his Worship had Been called upon to inflict, and under those circumstances he would ask his Worship to make the sentence as light a=s possible. -~ His Worship, in giving judgment, said that O'Dowd had bought his place, after prohibition was carried. It was 'different to M'Cann and others. They paid for a license, and it was afterwards taken from them. It looked like as if O'Dowd came there with the intention of conducting the , house without a license. j Mr Neave said O'Dowd had lived in Tapanui while licenses were in force. He was a baker, and for a considerable time he conducted the house legally. Sub-inspector Kiely said be had only been in tKe district for 18 months altogether, and , came after the licenses had been done away with. Hie Worship said he had no sympathy with O'Dowd. He had heard what had been said i in hi 3 favour. To do anything else than j what he (his Worship) intended doing would | be to turn the proceedings into comic opera. ! O'Dowd. knew the act. He knew what he j was doing when he purchased the house, j He had acted like a gambler: he tock risks and backed his knowledge, as it were, ' asjainst the knowledge of others. He acted ■with extreme cunning, labelling the alcoholic j •liquors with tetpiperanee labels, and so forth. \ Accused would be sentenced to three , months' imprisonment, without hard labour, i Mr Neave said he intended to appeal on the facts, and asked his Wosship to fix bonds that accused would appear to answer the sentence if the appeal failed. j His Worship ordered accused to find sureties to the extent of £100 that he would appear when called upon, and leave to appeal was granted. j ILLEGALLY ON THE PREMISES. \ Andrew Potts and Frederick Cullen (for whom Mr Neave appeared) pleaded Not guilty to being illegally on the premises of James O'Dowd on the 13th inst. S Sub-inspector Kiely said that this was the . first case of its kind. The onus lay on the defendants to -prove that they were not guilty. The informations were laid under ; section 188, which provided that " when any ' inspector oi constable has, in pursuance of ' a warrant, entered any premises and seized any liquor therein, any person found at the time on the premises shall, .until the contrary is proved, be deemed to have been on such premises for the purpose of illegally dealing in liquor, and be liable to a penalty not exceeding 405." The facts were that when the police went into O'Dowd's bar to execute the warrant they found the defendants there. On being asked what their business was, Potts said that was his business. Cullen said he might be staying there that night. Evidence was given by Constables Matheson and Herlihy. The latter said that Cullen said, " Might be staying here tonight." Mrs O'Dowd put her head through a. slide and said, "Yes; your room is No. 19." ] This concluded the case for the police. j Cullen gave evidence that he worked on a. farm at Crookston. He came in to the show on the 13th inst. In the evening he met Potts, and told him that he thought about, sfaying for the night at Tapanui. They went over to O'Dowd's to see about a bed. They went into the bar, where they saw O'Dowd. They were scarcely there a minute when a knocking at the door came. O'Dowd said, " I wonder who is that making such a^noise." He told Potts to open the j door, and Potts doing so, the police came i -in. „ » .- I i To the. 3t>lagistrate-:-. "Witness -did not stay ■there that night, because he" was fairly dis- | gusted with the whole thing. Witness had • often stayed at O'Dowd's. He had no drink ' there that night. Potts gave evidence similar to that given by Cullen. Ho said that when the police

came, in. they asked him to make a statement, but he declined. Neither he nor Cullen had any drink there that night. i His Worship said there was not sufficient evidence to convict. The informations would be dismissed.