LAW REPORTS.

New Zealand Police Gazette, Volume XXXIV, Issue 16, 21 April 1909, Page 165

LAW REPORTS.

(“Times Law Reports,” Yol. xxv, page 245.) [K.B. Div. (Lord Alverstone, C.J., Bigham and Walton, J.J.) —21st Jan., 1909.] Johnson v. Needham. Criminal Law—Cruelty to Animals abuse, and torture ” —lnformation disclosing Three Offences —Cruelty to Animals Act, 1849 (12 and 13 Viet., c. 92), s. 2. Section 2 of the Cruelty to Animals Act, 1849, provides that “if any person shall . . . cruelly beat, ill-treat, abuse, or torture . . . any animal ”he shall be liable to a penalty. Held, that tbe words “abuse” and “torture” created separate offences. An information was preferred against the respondent for that he did “ cruelly ill-treat, abuse, and torture a certain animal, to wit, a grey gelding.” The Justices being of opinion that the information charged three offences called upon the appellant to elect upon which portion of the information he would proceed, and as the appellant declined to elect the justices dismissed the information. Held, that the Justices were right in the circumstances in declining to convict. Mr. Patrick Hastings appeared for the appellant: the respondent was not represented. Mr. Hastings, for the appellant, submitted that there should have been a conviotion. The offence was constituted under section 2 of “ The Cruelty to Animals Act, 1849 (12 and 13 Vic., c. 92), and he submitted the words “abuse” and “ torture ” were merely explanatory of the earlier word “ill-treatment,” and there was only one matter of complaint. He referred to Reg. v. Totnes Justices, reported only in The Times newspaper for the 9th of May, 1879. The section created only one offence, and provided a penalty for cruelty generally.

Tbe Lord Chief Justice said that in his opinion the Court should not interfere. It must be understood that when a summons of this kind was issued under the section the Justices could not decline to proceed simply because the summons was irregular in form. They should hear the evidence, and, when they had done so, they should then make up their minds as to what offence under the summons had been proved. Here it was argued that the words “ abuse ” or “torture” were merely descriptive of ill-treatment, and not to be considered as creating separate offences, but, looking at the section, he could not agree to that view. The oollocation of the words made it really impossible to hold that they made only one offence. The Totnes case was not really an authority on this point; the question of election there never arose. The appellant here asked for a conviotion for ill-treating, abusing, and torturing, and the Justices were right in the circumstances in declining to convict. The appeal must, therefore, be dismissed. The other members of the Court agreed. [Solicitor—S. G. Polhill.] Insert—P.G.

(“ Times Law Reports,” Yol. xxv, page 250.)

[K.B. Div. (Lord Alverstone, C J., Bigham and Waiton, JJ.)~22nd January, 1909.] Airton and Another v. Scott. Gaming — Betting —“ Frequenting ” —“ Open Space to which Public have access ” —Access by Payment. A by-law prohibited the frequenting of a public place for the purpose of betting. By the definition section of the by-law a public place included inter alia any open space to which tbe public had access for the time being. The appellant attended at an athletic ground to which the public bad access on payment of an entrance fee, and made bets there.

Held, that the word “ frequenting ” meant being sufficiently long in the place to effect the object aimed at, namely, to bet, and that the athletic ground was a “ public place” notwithstanding that a payment had to be made to gain admission.

Mr. Waddy submitted that a single visit to the athletic ground, however long the appellant might have stayed there, was not “frequenting” within Clark v. The Queen (14 Q.8.D., 92), and that a place to which the public had no access without payment was not a public place. On the word “ frequent ” he referred to an unreported case, Jones v. Scott, heard in this Court on the 9th of November, 1906, and submitted that that case was distinguishable ; and in support of his contention that a place to which the public only had access on payment was not public, he referred to the definition of a public place in section 1, (4), of “ The Street Betting Act, 1906,” and to Langrish v. Archer (10 Q.8.D., 44). In the latter case a railway-carriage had been held to be a public place ; but a railway company was obliged to carry any one who paid their fare, while the owner of the athletic ground could refuse admission to any one he pleased. The Lord Chief Justice said they need not call on Mr. Symmons. As to the word “ frequent,” it was plain that being long enough on the premises to effect the particular object aimed at was “ frequenting,” They could not distinguish this case from the unreported case to which they had been referred in which a man who remained in a street long enough to effect a bet was held to have frequented the street for that purpose. As to the second point, taking the words of the by-law as they stood, they could not distinguish this case from Langrish v. Archer (sup.). The fact that an admission fee had to be paid was immaterial; the public had access, and the place was publio. The appeal must therefore be dismissed with costs. The other members of the Court concurred. [Solicitor for the appellant: T. H. Aldous. Solicitors for the respondent: Richard F. and C. L. Smith.]

(“ Times Law Reports,” Vol. xxv, page 259.) [K.B. Div, (Lord Alverstone, C.J., Bigham and Walton, JJ.)— 27th January, 1909.] Stansfield and Co. v. Andrews. Licensing Acts—Sale at Unlicensed Place—Sale by Brewer's Drayman—Liability of Employer—Aiding and abetting Sale-Licensing Act, 1872 (35 and 36 Viet., c. 94), s. 3. The appellants were brewers, and by the system in use in connection with their business each of their draymen had a book called an “ order and delivery book,” which he took out each day, in which it was his duty to enter, when received, orders for beer, and hand in each evening to the appellants’ clerk at their office. Each evening the drayman entered on a “load ticket” the orders for next day’s delivery, which would be handed with the order and delivery book to the appellants’ clerk. From these the loads for the next day’s deliveries were made up, and it was the duty of a foreman and certain clerks to see that only a sufficient amount of beer was loaded to satisfy suoh day’s orders. One of the appellants’ draymen on Ist May, 1908, gave in his order and delivery book, which contained the names of three persons, W., L., and F., the order for each being one crate of bottled beer. On 2nd May the drayman went out with a horse and van containing crates and bottled beer of the appellants. None of the goods bore the name of any customer for whom the goods were intended, and there was no appropriation or identifying marks upon any of the bottles or crates. The drayman delivered a crate to F., two bottles to one 8., one bottle to L., and one bottle to W. There was no entry in the book

of a single bottle as the order of W. and L. The quantities delivered were paid for on delivery, and the money was duly accounted for to the appellants at the end of the day. Draymen were warned not to deliver beer unless an order for same had first been taken to the licensed premises. The drayman having been convicted of selling beer without being duly licensed, the appellants were subsequently charged and convicted of aiding and abetting him in the commission of that offence, the justices having come to the conclusion that no sufficient appropriation of the bottles of beer had taken place before they left the licensed premises. Held, that the conviction was right.

Mr. Justice Bigham, in delivering judgment, said that the facts in this case were not stated satisfactorily, and it was difficult to know what took place, but he had come to the conclusion that on the second day Swallow sold for cash some beer from the dray, for which no orders had been received at the brewery. The money received for the beer so sold was accounted for to the appellants. Thus stated, an offence was committed within section 3 of “ The Licensing Act, 1872.” In making the sale Swallow was not acting as the mere servant of the appellants, as was the case in Williamson v. Norris (supra). Swallow knew that he ought not to make such sales, and in doing what he did he acted outside the scope of his authority. If that was the right view of the facts, it was clear that when Swallow was convicted he was rightly convicted. The next question they had to consider was whether the appellants could be convicted of aiding and abetting Swallow in the commission of that offence. He thought that when Swallow went out on his round the appellants must be taken to have known that he had beer not required for the execution of orders received, and they subsequently took the money received for that beer. Therefore they aided and abetted him, and the conviction by the Justices was right. Mr. Justice Walton said he agreed. He had the greatest possible difficulty in understanding what the sale was in respect of which Swallow was convicted ; it was only possible to guess at it. But as he understood the facts, they were these. Swallow, as the appellants’ drayman, as part of his duties had to go out with his dray, and took a book with him called the “ order and delivery book.” While on his round he took orders, entered them in the book, and handed the book to the appellants’ clerk on his return. On Ist May he had received orders for three crates of beer, one for Wigmore, another for Leonard, and a third for Fryer. He handed in these orders at the brewery, and next morning started on his round. In the case it was stated that the goods were loaded up and handed over to Swallow’s charge in pursuance of the system therein described. Coupling that with the other statements in the case, he understood that on the 2nd May Swallow had on his dray three crates not identified or marked with any names, and he took it that these crates were intended for Messrs. Wigmore, Leonard, and Fryer. What he delivered was one crate to Fryer, two bottles to Butler, one to Leonard, and one bottle to Wigmore. Whether any orders had been given by Leonard, Butler, and Wigmore was not clear. But one crate having been delivered to Fryer, out of the other crates Swallow delivered some single bottles. What offence did Swallow commit? Was it a sale of a crate to Fryer, or was it the sale of these single bottles ? That question he could not very well answer. If the offence was the sale of the single bottles he felt some difficulty, because on the case it appeared that Swallow had distinct orders not to deliver anything unless it had been ordered at the brewery, and no orders for single bottles had been received at the brewery. But there was a sale and delivery of a crate to Fryer. The order for that was given to Swallow on the previous day. He received the crate the next morning, but it was never appropriated to the order by Swallow until the actual delivery. Therefore the case seemed to be within Cooher v. McMullen (supra). It seemed to him that this state of facts constituted an offence by Swallow of selling the crate elsewhere than in a licensed place, and that he did it with the express authority of the appellants. The only remaining difficulty arose from the decisions of this Court in Williamson v. Norris (supra), where it was held that a barman selling liquor in a bar which was not licensed was not committing an offence under section 3, but that his employers were liable. It might be said on that authority that in no case where a man sold merely as an agent did he commit an offence under that section. He thought that was straining the case too far. He thought that if a man as traveller took orders, and then delivered the goods he sold the goods himself. Mr. Justice Bigham said that the Lord Chief Justice concurred in the conclusions of the Court. [Solicitors: Maitlands, Peckham, and Co., for appellants ; Wontner and Sons, for respondents.]