A PAINTER'S ADVENTURE

Otago Witness, Issue 3517, 9 August 1921, Page 44

A PAINTER'S ADVENTURE

FOUND AT SALVA TION ARMY HOME. J- R. 1 ’artiioloi:. -iv. S.M.. was urnPied in the City Police Court on Friday •.nn tlie adjourned case m widen riam; Dot alskey was charged with being a rogue tind vagabond in tuat he was found by nigiit (at 7 p.m.) on July 14 without lawful excuse in tho ground, of tile Salvation Army Itonie at ( avers.mm. Mr Hanlon appeared lur accused and pleaded not guilty. Evidence was given as to the accused being in the grounds of the home and as to his arrest by Constable Pratt. Air llnnioii suhiiiilied tuat the (barge should be dismissed, in the first place because tlie alleged offence had not been committed by night. Under the Crimes Act night was defined to be between the hours of nine and six. In tlie Police Offences Act no definition was given, but it was an Act cognate to the Crimes Act and tiie words should bear that interpretation in the later statute. It was highly essential that some definite meaning should he attached to the word “night.” If it was to he taken as meaning between sunset and sunrise, then they could have two men committing the same act, one in Auckland and one in Invercargill, and the one in Auckland guilty of being a rogue and vagabond, while the other was not, merely because darkness set in immediately after sunset in the north. Accused said he was a married man with two children. He did not know the place was the Salvation Army Home when lie was painting. Jhe girls, who were choping wood on the rise, waved to him, and called our that they wanted to see him that evening. When he met them they asked him if lie would be kind enough to bring them some tooth paste, and gave him a shilling to get it. They also said he could bring them some chocolate if he did not mind. Mr Hanlon: And did you get the chocolates? Mitness: Yes, I took them sixpence worth. When he gave them the paste they asked him to bring them a bottle of scent and some face cream. Witness told them he would think about it. He did not take them the scent, and went up to say that ho was not going to bother any more with them. He had no idea the place was anything but a home, and had no intention of committing any crime. Wit ness added: “The girls told me there was no danger at all, because fellows often used to see the girls in the grounds.” The Magistrate began by declaring his unbelief that accused was there to supply scent or to say he was not going to see the girls again. Accused’s actions spoke so loudly for themselves that there was no need for a critical examination of tlie evidence. Ilis conduct called for strong condemnation. but. that, was not the question which he (the magistrate) had to decide. The first point raised by the defence was that the hour (7 p.m.) was not night. There was no definition in the Crimes Act and none in the P lice Offences Act,, hut they could go hack to an earlier date when the common law definition was in force. The question was whether “ night ” was to bear tlie same interpretation in the Police OffencevS Act as in the Crimes Act. and as they had a fixed meaning before the date of the New Zealand Criminal Code, any intention to give it a different meaning would have to be fairly clearly shown. Such did not appear. The meaning defined in the Crimes Aet. was quite an artificial one, and the Act itself said was to hold good in that Act. Tlie mere fact that a special meaning was defined in a cognate Act was no reason why it should apply to the other, in view of its history. For these reasons he must overrule the first point in the defence. The second raised an important question. They had the decision of the Supreme Court in Victoria, which, while it was not binding in the way that one of our own court would be, was entitled to every respect, being a reserved judgment and having been fully argued. The decision of the learned judge was, if he might say so, very weighty, and in the absence of any authority in New Zealand should l>e followed by the court. The decision was in effect that- “ without lawful excuse ” was not equivalent to “ without legal right,” and that it was a sufficient defence if the accused could show tluit he was not there for an unlawful object. If it had been shown that the place was a reformatory ->’-d registered under the Reformatory Institutions Act. and that accused's presence there was a breach of the regulations, then it would have been shown that accused was there without latvful excuse. As it was. all they had was that it was a Salvation Army Home and that: the two girls were inmates tbore. It had not even been shown whether ihev were committed. Tn view of the evidence he must. 1 1 old that no criminal intention or breach of the regulations had been shown, and the charge must fail and accused he dismissed.