Margistrate's Court.

Southland Times, Issue 19116, 5 August 1903, Page 4

Margistrate's Court.

TUESDAY,r-*tk k AUGUST, Befo-o Mr. S. E. JHTcOa-tlryy S.M. POLICE V. CHAS. HUMPHRIES. Giving judgment in this case, his Worship said ; — There are three informations, one for selling porter, ono for selling whisky, * and one for exposing whisky and port_r < for sale without being duly licensed. In proving a s a le of liquor, it is not necessary to show- that any money actually passed or any liquor was actually consumed, if the Court is satisfied that a transaction in the nature of a sale did take place. (See section 170). If the circumstances disprove, a sale this section would hot apply. On the other hand mere proof of supply of liquor, though both vendor and purchaser swear the transaction was a gift, is soine evidence upon which a Magistrate may presume a Sale if he disbelieves the evidence as to tho alleged gift. (See Schul thesis v. Wilson, 13 N.Z.L.It., _95). Further, the fact of any person not being a licensed person, keeping up any sign writing or painting or other mark in or near to his house or premises, or having such house fitted up with a bar or other place containing bottles or casks displayed so as to induce a reasonable belief that such house or premises is or are licensed for the. sale of any liquor, or that any liquor is sold Or served therein, or of there being on such premises more liquor- than is reasonably required for the use of . the persons residing therein, shall be deemed prima facie evidence of the unlawful sale of liquor by such person. (See section 172 Licensing Act, 1S81). The defendant had been licensee of an noted at Fortrose in the Mataura licensuig district up to the 30th June last, when the hotel waa closed 'pursuant- -to- -a .-vote- of the elec? tors in that district. On the" 15th July was printed on a movable slide set into a window facing a public road tho word "bar,"., and over a» fanlight facing the same road the name of a former licen- | see. This window is that of the bar ■ of the hotel, and, this bar was fitted up j ■with shelves, on which was displayed i non-alcoholic drinks. There was in various parts of the bar a quantity ot j alcoholic drinks, «ome of which could easily be observed by anyone in the ! bar, * and from the respective situations of this liquor, and from all the circum- I stances. I must infer it was displayed for the purpose of being sold. When the informant, armed with a warrant, entered the bar about -9 p.m. on the 15th, he saw on the counter a Kerosene tin with one side cut out, the open end of which was directed towards the shelving at the back of the bar. In the tin was placed a candlestick! with a lighted candle. There was no other light in the bar. The effect of this was to keep the bar in semi-darkness, and to prevent the- reflection -from . the' 'caudle being di-r.-ted »s_i»sl the u'indow facinc the road. Various pretexts Trere put forward excusing the use of this contrivance, the most plausible being thitt it had been used before the 30th June on account of the bar being draughty. Ono of the witnesses fon the defence admitted that on the 15th there was not any jvind. There was, therefore, no reason for its use on that night, and 1 draw tho inienence that the real reason ior its being resorted to was to prevent the presence of persons in the bar being known to those outside. at the time of entry the informant saw seven persons in the bar, one of them being tho defenda-nt, whoy was behind the bar counter. The other .six persons", witn the exception of Thwaites, had cither just drank or were in the act. of drinking alcoholic stimulants, to wit,, whisky and porter, which had just been supplied to them by the defendant. Thwaites bad just been supplied with, and was in the act of drinking, ginger 'wine. The defendant had beside himself a glass of liquor. On . entening, the informant, addressing the defendant, said, "WTiat does this meVuv Charley?" The defendant said, "Oh, nothing, it is only cordials." To this none of those .present made any r«ply. The informant then either tasted or Smelt the remaining contents of each -glass, and called attention to the fact that they all,- with one bxceptiou, contained alcoholic drinks. To this no reply was vouchsafed. The men found in \he bar other than defendant • jnay, *° r convenience sake, be divided into two set. r. Thwaites and Thomas, who on the day in question were living ax some distance from Fortrose ; whilst McDonald, McEwan, Millard, and McDonald, who- were all local residents, formed th. other. Thwaites and Thomas repaired to the billiard room attached to defendant's premises, which had a number of men in it, about' half-past eight in the evening, aud played a game, of billiards there. When the premises were licensed the custom was for the loser to order and pay fon drinks both for the winner amd liimself. This custom still obtained on tha night in question. Thwaites won the game, whereupon he was invited by Thomas into defendant's b a r, and the latter ordered from the defendant drinks for the two, Thwaites having ginger "wine and Thomas whisky, which were both supplied by the defendant. Whilst the' two were in the act of drinking, the detective entered. The intention of Thomas before he left waa to offer defendant Is, though he said he was uncertain -whether defendant would accept it. . For this latter statement he offered no justification. The defendant admitted the truth of the evidence given by Thwaites and Thomas, of which the foregoing is a short summary. The circumstance under which the other four had their drinks as described by the defendant and themselves, is that whilst in 'the bar parlour defendant invited tfiein into the bar to have a drink. The following are defendant's words i "It was on my invitation they went there (bar), l received no money for .these" drmfes. I did not ask for any money. I did not put them down in a booto against anyone." These, witnesses heard the informant's question -and defendant's reply stating tnat only cordials were being consumed, a«nd did not contradict defendant's answer. Shortly alter his entrance into., the bar tbe informant produced and read to defendant the warrant, and 1 will here detail the informant's evidence on this point, the truth of which, the defendant would not deny : ."After the warrant had been .read the defendant said. 'That is all right/ I said, T did not expect" to catch you as I did. Your conduct here to-night will take some explaining away,' He (defendant) replied, 'Oh, I do not care, I a«m sick of it. I' am going out of here in a fortnight." I said, That does not justify you in selling beer;' TTc 'said, 'Beer, who had beer?' I said, 'Well, Bob Mi-Donald hud porter.' He said, *Yes, but he will say he had not.' I said, "But I -11 say he had, for I tasted it, and it was porter.' He said, ' You'll say he had, he will sayhe had not, and there will only be his word and your word.' Constable Bogue said, 'Oh. yes, there, will bo more than that, for I tasted it, and I'll say it was porter, and here's the porter bottle' which was standing in -front of him.' " This portion of the incident then closed. There is nothing in the fact set up in the case of both sales that no money* passed, or that no subsequent demand was made or entry written up in any book. The appearance of the detective Btopped the payment of the money, and he having appeared when he did, it ia too much to expect the defendant to fo far oblige the prosecution as th demand payment or make an entry in his book. Further, some of the witnesses admitted -having been supplied with drink in do- j fendant's house since the SOth June on ! .more than one occasion, but that on each occasion the defendant had made them a gift. The only witness who would admit having paid for a drink since the 30th June was one aiiddieton, whose evidence ia that he waa supplied with dandelion ale. Lastly, there was found on defendant's premises on the night of the 15th a considerable quantity of alcohol, more than was necessary for the use of those residing in defendant's house, consisting of himself, his j wife, three children, a Stri and -a boarder. * Taking all the circumstances into considenation, I must find that the S«p- J ply of liquor to the two sets of men "in the bar were transactions in the nature of sales within the meaning of section. 170. I entirely disbelieve the evidence of defendant and his four wit- ■■ messes, that one of these transactions, was a k»ft by defendant to the four. Jf that had beefl. so, why did. not the defendant and his four witnesses make that explanation immediately- on-.the entrance of the informant, and contradict i defendant's manifest falsehood that . it: was only cordia-s* they were comsuming, ; or, again, why did defendant subsequent-, ]v broadly hint that McDonald, ono o the four, would perjure himself in order, to clear defendant. Defendant, will be : convicted and lined £50 and ordered to>. pay tho costs. There tfffl. also be_ a*v order that ail liquor seized pu-sUaJVt to the warrant, ana the vessels -containing the same, be forfeited to the Crown j , It; may bo as well now to state what, course I intend to pursue in reference to cases of sly grog-selling in prohibited districts. The Legislature has in its wisdom deliberately chosen to entrust to the electors of every licensing district the powers of suppressing the licensed : trade in alcoholic stimulants. It is now nearly ten years -since that power was conferred and three several elections jhave been held pursuant thereto lit canrot;- therefore, be complained that the -arrying of.- no-license. In any particular • lh^n'sinV district is something hidden ; Seover it is the will of the. people StutWliy expressed at^ tint must lmrMDectetl by magistrates and civ Iliads iflk^Tn "lie future, if the evidence 3ustifies' v coirviction, unless in very special cafe Trnpriso-meut ;,will be infir-ted cv c ti for a finst offence. ■-.-___■ ■A^rcld&l"|^s.■ol^l^^J»^. tain premises when "o°*" of rant issued Pursuant .- tg- . ectW .^^ "The Licensing Act, > lobT , ; 1 01 -tne 1"" pose of illegally dealing m liquors, judg : ment was dcUyered as follows.- y "These informations .are laid undei; section 188 of the "^«pia Act. jggi--reads as follows :-' When, any jnspectpw or constablo has in pursuance of .a^ warrant entered any . premises f^J?^ d^& liquor therein, any P^on Ipund at thft -time on the IW^^i^LSSS:-. $rary is proved, be deemeti to haye : been

on such premises for the p-npos» of illegally dealing in ll^UOr.- a_.d bO lialllQ to & penalty not exceeding forty shilling..' There are four ingredients which go- to make up the offence (a) an inspector or constable armed with a warrant under section 18fi, (p) entry on premises and seizure of liquor pursuant to the warrant, (c) finding of defendants on such premises, and (d) failure of defendants to give a satisfactory explanation as to being so found. If these four ; ingredients . are present-, the offence of being on the premises for the purpose of illegally dealing in liquors is presumoil. The offence is directed not only against the sellers, but also against the buyer. "The plain meaning, of the section" (Lond Coleridge, C.J., in McKenzie v. Day. L.R., 1893, 1, 0.8. 289) 'is to include the buyer as well as the seller of intoxicating liquor ; you must have two parties to a dealing. The object, of the Act is to prevent in pnivate houses what it has tried to put down in public houses ' Further, onco the three ingredients arc established, a prima facie case is established, and it is for the defendants to v rebut tho presumption thus established. The facts of the present ca«o arose o"t of. and ha\e been fully dealt with in, the case of Police v. Humphries The interview between the informal* t and Humphries,, at which none of the defendants were present, is not, oi course, evidence against the latter who are all residents of Fortrose, found on Humphries' premises on the mght m the loth July, when tbe inlormaut made entry and seized tho liquor pursuant lo warrant. The defendants were all present in the bar, behind which wis Humphries senving them, and they heard the latter's statement as to the class oi liquors they were consumingr-a falsehood "hev -failed then and there to contradict. If their story of a gift by Uiuni'hnes was true, nothing could hayo een easier for them than to correct llumph its and tell the informant the truth. After Seine content to shelter themselves hiMmf a manifest falsehood, they can, ot now be heard to say the liquoi w«» B" en and not sold. I dish e icv o then c deuce, nnd shall convict and C U» should be pctmli'HKl with him. In Police \. .James Smith, Thomas Dougherty, anil Charles Humphries, throe informations, charging defendants for unlawfully selling certain liquors, to wit. ale and whisky, without being duly licensed, the judgment was as follows: — /"•This is a charge of unlicensed sellingalleged to have taken place in the defendant's Humphries' premises at Fortrose ou the night of the 15th July, ult , concurrently with the offences which have been dealt with in the two previous judgments. A ploughing match has been mutually .held at Fortrose for the last twenty years. This match has . invariably been followed by a dinner, which, for the anost part was held at; the hotel of wlii_h defendant was. up to the '10th June last, 'licensee. On the nth .June last a meeting of the ploughing match courmitlee, of which the three defendants ore all members, was held in defendant's premises, which, of course, were then a licensed public house. At this meeting. Humphries agreed to provide the usual dinner, . consisting of eatables and alcoholic stimulants, at - r >s per head. The fact of no-license having been carried in the Mataura Licensing District, of which Fortrose is a part, did not then occur to the contracting parties. However, on the 13th July, the defendant Humphries waited on the other defendants and stated that he could not supply any alcohol with the other refreslunents. Smith and Dougnerty thereupon told Humphries to go on witn the dinner, and that Smith would supply the ale and Dougherty the whisky. The two latter did tbis without consulting the' other- two members of the committee, but. in the hope that their action would he ra tilled, a hope which proved futile. Smith and Dougherty wired for the liquors, which were delivered V>y .oach at Humphries' premises and deposited in a parcels office kept by defendant for the convenience of passengers and consignees arriving by the conch. No reduction was made by Humphries in th t > price per head he charged for the dinner. On the night fixed for the dinner, 15th July ult.. the whisky and ale. bought, by Smith and Dougherty was tllfn J>y permission placed on the tabic prepared for the dinner. At a meeting of the committee held shortly before the dinner, Dougherty and Humphries hoiu«r present,' but not Smith, it was agreed that Dougherty should collect the moneys from thoSe desirous of attending. Kighteen attended from whom, or from those liable for them; Dougherty collected £4 10s, which he handed to Humphries. The latter saw Dougherty collecting the money, and was well acquainted with all that happened. The position then is that Humphries supplied the eatables and the other, two defendants the drinkables, which they gave, to Humphries, and 4 the eatables and drinkables being on the table, Dougherty on Humphries' behalf, sold the right of admission, which entitled those entering tho room to solid and liquid refreshments at 5s per head. / The seller of the liquor was thus in tho last result neither Smith nor Dougherty, but Humphries. The information will be dismissed as to Smith and Dougherty ; Humphries will be convicted and discharged. I think the latter has been sufficiently punished already." , . , Mr Stout asked that the liquor seized belonging> to Smith and Dougherty should be returned to thorn.— His Worshio said that his judgment virtually held that all the liquor had been presented to Humphries by the two.— Mr Stout, said that only that which was consumed was given. At least, the liquor taken from the parcels oflice should he returned, and it could hardly be said that five dozen bottles of ale would m he j,M\en for consumption hy the 18 people at the dinner.— His Worship said that he could not see his way to alter the judgment. The Act was comprehensive on the point, and he thought there was no option but to seize the whole of the liquor. 11 " t mm^^^