LAW REPORTS.

New Zealand Police Gazette, Volume XL, Issue 24, 16 June 1915, Page 419

LAW REPORTS.

(“ New Zealand Law Reports,” Yol. xxxiv, page 395.) [S.C. In Banco, Wellington.—(Cooper, J.)—24th, 29th April, 1915.] Kidner v. Whitehouse and Kelly. Licensing Offences Occupier of Unlicensed Premises in which Liquor sold—Privy to Sale—The Licensing Act, 1908 , Section 196. The appellant, an unlicensed person, was convicted by a Stipendiary Magistrate, under section 196 of the Licensing Act, 1908, with being the occupier of unlicensed premises on which liquor was sold, and being privy to such sale. The evidence showed that one Williamson accosted two constables and inquired whether they wanted a bottle of beer ; that Constable P. asked the price, and that Williamson replied “ Is. 6d. a “ bottle ” ; that the constables gave Williamson 3s. for two bottles; that Williamson then left them, and was subsequently seen coming from the appellant’s premises carrying two bottles of beer, which he delivered to the constables; that upon the premises being searched more liquor than was reasonably required for the occupier and his wife was discovered, and that the appellant was actually on the premises at the time Williamson obtained the beer for the constables. The defence offered no evidence.

Held, 1. That the Magistrate was right in convicting the appellant under section 196 of the Licensing Act, 1908, with being the occupier of unlicensed premises on which liquor was sold, and with being privy to such sale, 2. That the finding of more liquor than is reasonably required for the use of persons residing on the premises is prima facie evidence of the privity of, or consent of, the occupier to an unlawful sale of liquor on such premises. Appeal from a decision of D. G. A. Cooper, Esq., S.M. at Wellington. The facts appear from the judgment of Cooper, J. Jellicoe for the appellant. Macassey for the respondent. Cur. adv. vult. Cooper, J.:— The appellant, an unlicensed person, was convicted on 12th March, 1915, by the Stipendiary Magistrate, Wellington, upon an information charging him, under section 196 of the Licensing Act, 1908, with “ being the occupier, on 7th March, 1915, of unlicensed premises numbered 14 Holland Street, Wellington, on which liquor was sold.” Section 196 is as follows: “The occupier of any unlicensed premises on which any liquor is sold, or, if such premises are occupied by more than one person, every occupier thereof, shall, if it is proved that he was privy or consenting to the sale, be subject to the pepalties imposed upon persons for the sale of ilquors contrary to license.” By section 207 of the Act, in proceedings against a person for the unlawful sale of liquor, the fact that there is found on unlicensed premises in the occupation of such persons more liquor than is reasonably required for the use of the persons residing on the premises is prima facie evidence of the unlawful sale by such person. Two other informations had been laid against the appellant charging him with selling liquor on 7th March without being duly licensed to sell the same. Both these informations were dismissed on the merits by the Magistrate. In the case stated on appeal the facts found by the Magistrate are set out, and these show that one Williamson was the person who actually sold the liquor. The Magistrate, however, held that the appellant was privy to such sale, and therefore convicted him of an offence under section 196 of the Act. The findings of the Magistrate are as follow : “It was proved that on Sunday morning, 7th March, Constables Petty and Thom were in Tory Street, opposite Holland Street, a distance of some 30 yards from tue premises, 14 Holland Street; that at about twenty-five minutes to .10 o'clock the man Williamson came from the corner of Plolland Street and accosted the constables, and inquired whether they wanted a bottle of beer ; that Constable Petty asked the price, and that Williamson replied 1 Is. 6d. a bottle ’ ; that the constables together gave Williamson 3s, for two bottles; that Williamson then left the constables in Tory Street, went down Holland Street, and was seen subsequently coming from the premises, 14 Holland Street, carrying two bottles, which he delivered to the constables in Tory Street. “ It was also proved that the said premises were watched by Sergeant Kelly between 9.55 and 10.25 a.m. on the said 7th March ; that the defendant during that time took two men into the house ; that John Williamson also went in alone on two occasions. On the first occasion he returned into the street carrying something bulky under his coat, and that this something he handed over to a man on the street; and that on the second occasion he returned and went to the corner of Tory Street and Holland Street and handed Constables Petty and Thom a bottle each, and that he also saw two other men enter the premises besides the two defendant took in; that at 11.45 a.m. of the same day Sergeant Kelly entered the defendant’s premises under a search-warrant, and he then found the defendant and his wife and the man Williamson in the kitchen ; that on reading the warrant the defendant made no reply; that Kelly asked the defendant where the 1 plant, ’ was, and that defendant took him to a cupboard in a front bedroom, and there he found seventy-seven full bottles of draught beer and on the floor of the room a single bottle of bottled beer, and that the defendant said he haa purchased all the liquor for his own consumption, and that it was all he had in the house; that, continuing the search, Kelly found in the kitchen under a sofa ten more bottles of draught beer and a small bottle of methylated spirit, and in a back bedroom six empty bottles and two full bottles of methylated spirit, and upon the kitchen-table three large glasses recently used for beer, a medicine-glass, and a small single glass full of beer, and on the mantelshelf a corkscrew. “ It was also proved, after objection on the part of the defendant, that on the previous Sunday, 28th February, Constable Phillips watched the said premises during twenty minutes, and that the said John Williamson was seen about the premises and apparently ! running bottles of beer out to men ’ whom he brought up from town ; that Phillips also saw a woman come out of the premises under the influence of liquor—also other men come out of the house.”

No evidenoe was called for the appellant, and it was admitted before the Magistrate by counsel for the appellant that the appellant was on 7th of March, 1915, the occupier of the premises at 14 Holland Street. The Magistrate’s judgment was, “I hold that the following facts, that men were seen going into the premises, 14 Holland Street, on 28th February and 7th March instant, and that so large a quantity of liquor then found upon the premises, more than reasonably requisite for the occupier and his wife, amounted to presumptive evidence that the defendant was privy to and consenting to the sale of the said liquor and was guilty of the offence charged in the information.” Mr. Jellicoe’s argument in support of the appeal is based on three grounds: 1, That there was no evidence of a sale on the premises; 2, that there was no evidence that the appellant was privy to or consenting to any sale; and, 8, that the evidence of Constable Phillips concerning what took place on 28th February was irrelevant and wrongly admitted, as there was no evidence that the appellant was the occupier of the house on that date.

In my opinion the evidence of the sale on 7th March by Williamson to the two constables is sufficiently connected with the premises to establish that a part of the transaction occurred there. The constables paid 3s. to Williamson for two bottles of beer in Tory Street, about thirty yards from No. 14 Holland Street. The beer was not then delivered to them, but it was proved that Williamson took the money, then went with it in his possession to No. 14 Holland Street, and there obtained the two bottles containing beer and handed them to the constables. The Magistrate was entitled to presume from this evidence that the beer was, in fact, either purchased by Williamson from some person at 14 Holland Street, or that Williamson was the agent for some person on those premises for the sale of the beer kept on the premises. In fact, the evidence presumptively connected the premises in Holland Street and some person on those premises with being privy to the sale of the beer to the constables. There was, therefore, a violent presumption that the beer was sold either to Williamson or to the two constables through Williamson by some person in the house in Holland Street.

Now, subsection 2 of section 207 of the Act makes the fact that more liquor than is reasonably required for the use of the persons residing in unlicensed premises prima facie evidenoe of the unlawful sale of liquor by the occupier of the premises. If such fact is prima facie evidence of the unlawful sale by such person, it is, in my opinion, also prima facie evidence of the privity of, or consent of, such person to an unlawful sale of liquor on the premises. The appellant was admittedly in occupation of the premises on 7th March. Sergeant Kelly’s evidence shows that he (the appellant) was aotually on the premises at the time Williamson obtained the beer there for the two constables. When the premises were searched within an hour and a half afterwards the appellant and his wife and Williamson were in the house. Seventy-seven full bottles of beer were found in the appellant’s bedroom in a cupboard, and one bottle on the floor. The appellant’s only explanation of this quantity being there was that he had bought it for his own consumption. Ten more bottles were found concealed under a sofa in the kitchen, and some glasses and a corkscrew were also found in the room. There was no evidence that there were any other occupiers of the house than the appellant and his wife. The fact that the appellant admitted that the seventy-eight bottles were his justified the Magistrate in concluding that the other ten bottles also belonged to the appellant, and the Magistrate was fully justified in finding that- the quantity of liquor so found was more than was reasonably required for the use of the appellant and his wife. There was, therefore, prima facie evidence upon which the Magistrate was justified in holding that the appellant was privy to or consenting to the sale of the beer on the morning of 7th March.

The only other questions are whether the evidence of Constable Phillips was irrelevant, and, if so, whether upon this ground the appeal can succeed. In my opinion this evidence had some relevancy and was properly admitted. The appellant was in admitted occupation of the premises on Sunday, 7th March. His occupation must have had its origin before that date. The 28th February was the preceding Sunday, and, if this case bad been tried by a jury, the jury would have been, I think, justified in assuming that the appellant was in occupation also on 28th February. What was observed on that date by Constable Phillips was that Williamson was about the premises on that date, apparently bringing out beer from there to men in the street, indicating that liquor was then, as it was also on 7th March, being sold from the house. This evidence indicated the house as one of a character in which liquor was unlawfully sold, and the connection of the appellant, as occupier of the house, with Williamson. Assuming, however, that the evidence was wrongly admitted, the case comes, in my opinion, within section 291 of the Justices of the Peace Act, 1908, which enacts that there shall be no appeal on point of law on the ground of the improper admission or rejection of evidence. The corre-

sponding section in the Act of 1882 was section 237. In Ireland v. Connolly (21 N.Z. L.R. 314) Mr. Justioe Williams, referring to that section, said, “If there is some legal evidence, then section 237 prevents the objection being taken that other evidence not legal has been received, which, in the absence of section 237, would be an objection fatal to the conviction—Reg. v. Gibson (18 Q.B.D. 537) —but there must be some legal evidence.” Mr. Jellicoe relied on Reg. v. Gibson (18 Q.B.D. 537), but the rigid rule laid down in that case has been set aside by section 291. In Ireland v. Connolly (21 N.Z. L.R. 314) there was no legal evidence justifying the conviction of the appellant, and Mr. Justice Williams allowed the appeal on that ground ; but in the present case, if the evidence which it is contended was wrongly admitted is altogether eliminated, there was, in my opinion, ample legal evidence establishing a prima facie case against the appellant, and as no evidence was offered for the defence the Magistrate was right in convicting the appellant. Section 291 therefore applies, and the appeal must be dismissed, with £5 ss. costs, [Solicitor for the appellant : E. G. Jellicoe (Wellington). Solicitor for the respondents: The Crown Solicitor (Wellington).]

(“New Zealand Law Reports,” Vol. xxxiv, page 430.) [Court op Criminal Appeal.—(Stout, C.J., Denniston, Edwards, Cooper, Chapman, JJ.) — 15th, 19th April, 1915.] Rex. v. McLeod. Criminal Law—Causing Actual Bodily Harm such, that if Death ensued Accused toould have been guilty of Manslaughter—The Crimes Act, 1908, Section 206. The prisoner conducted what was called a “ Wild West Show,” giving an exhibition of his skill as a marksman. During the course of such exhibition he invited any member of the audience to sit some distance from him and he would, with a shot from a rifle, blow the ash from a cigarette which the volunteer was smoking. A farmer, W., volunteered, and sat on a box between 21ft. and 24 ft. from the prisoner. The prisoner took aim, discharged his rifle, and the bullet passed through W.’s cheek, inflicting a serious but not dangerous injury. The indictment charged the prisoner with, 1, assault causing actual bodily harm; 2, common assault; 3, actual bodily harm under such circumstances that if death had ensued the prisoner would have been guilty of manslaughter (see section 206 of the Crimes Act, 1908). The following were the issues put to the jury and their answers thereto : “1. Did the prisoner, on the 6th of June last, under the circumstances stated in W.’s deposition, discharge a loaded rifle at the said W. ?—Yes. “ 2. Was the prisoner an expert shot ?—Yes. “3. Did he fire at W. with the full consent of W.?— Yes. “4. In so firing did he injure W. in the manner stated by Dr. Rogers ?—Yes. “ 5. Was the wound a dangerous wound ?—No. “6. If the bullet had struck W. at either of the dangerspots mentioned by Dr. Rogers would the wound have endangered the life of W. ?—Yes. “ 7. Did W. move his head after being placed in position by the prisoner and before the prisoner fired ?—Yes.” Held by the Court of Appeal (Stout, C.J., and Denniston, Edwards, Cooper, and Chapman, JJ.), That the prisoner was guilty of the crime charged in the third count of the indictment. Case stated by His Honour Mr. Justice Cooper for the opinion of the Court of Appeal under the provisions of section 442 of the Crimes Act, 1908. The prisoner was tried before me at Hamilton on the 7th day of December, 1914, upon the following indictment “ In the Supreme Court of New Zealand, Hamilton District. The jurors of our Lord the King present that William McLeod, on or about the sixth day of June, in the year of our Lord one thousand nine hundred and fourteen, at Hamilton, in the Dominion of New Zealand, did assault one Leslie Wilson so as to cause him actual bodily harm. And the jurors aforesaid do further present that the said William McLeod, on or about the day and year aforesaid, at Hamilton aforesaid, did assault the said Leslie Wilson. And the jurors aforssaid do further present that the said William McLeod, on or about the day and year aforesaid, at Hamilton aforesaid, did cause actual bodily harm to the said Leslie Wilson under such circumstances that if the death of the said Leslie Wilson had been caused thereby that the said William McLeod would have been guilty of manslaughter.” The undisputed facts were that on 6th June, 1914, the prisoner conducted what was called a “ Wild West Show ” at the Hamilton Winter Show, and gave an exhibition of his skill as a marksman. During the course of the exhibition he invited any member of the audience to sit at some distance from him and he would, with a shot from a rifle,

blow the ash from a cigarette which the volunteer was to smoke at the time. Leslie Wilson, a farmer, volunteered. He sat on a box between 21ft. and 24 ft. from the prisoner. The prisoner took aim, discharged his rifle, and the bullet passed through Wilson’s cheek, inflicting a serious but, as it happened, not really dangerous injury. The prisoner was undoubtedly a very expert marksman, and the reason why the shot missed the cigarette and hit Wilson’s cheek was that immediately before the discharge of the rifle Wilson unconsciously moved his head. The jury found that, in fact, he did so. Wilson, after the prisoner was committed for trial, left .New Zealand in the Expeditionary Force, and his deposition was read, by the consent of counsel for the prisoner, to the jury. The counsel for the Crown and for the prisoner agreed that the following issues of faot should be left to the jury. The answers of the jury are thereon stated : “ 1. Did the prisoner, on 6th June last, under the circumstances stated in Leslie Wilson’s deposition, discharge a loaded rifle at the said Leslie Wilson ? Yes. “ 2. Was the prisoner an expert shot ? —Yes. “ 3. Did he fire at Wilson with the full consent of Wilson ?—Yes. “4. In so firing did he injure Wilson in the manner stated by Dr. Rogers ?—Yes. “ 5. Was the wound a dangerous wound ?—No. “6. If the bullet had struck Wilson at either of the danger-spots mentioned by Dr. Rogers would the wound have endangered the life of Wilson ? —Yes. “7. Did Wilson move his head after being placed in position by the prisoner and before the prisoner fired ? Yes.” I reserved the following question for the decision of the Court of Appeal: “Upon these findings of fact was the prisoner guilty of any one of the crimes charged against him in the indictment ? If so, a verdict of ‘ Guilty ’ is to be entered in such crime.” I admitted the prisoner to bail pending the decision of the Court of Appeal. The Attorney-General (Hon. A. L. Herdman) and H. H. Ostler, for the Crown : The consent is not a defence to the assault: Reg. v. Coney (8 Q.B.D. 534, 549), which is the only case nearly in point. It is contrary to the public interest that such exhibitions should be allowed: Compare Potter v. Faulkner (1 B. & S. 800, 805). In England tnere is special legislation : See Russell on Crimes (7th ed. Vol. i, p. 887); Archibald’s Criminal Pleading (24th ed. 928) ; Stephen’s Criminal Digest (6th ed. 164, 166). The prisoner was not represented. Cur. cidv. vult. Stout, C.J., delivered the judgment of the Court as follows : In this case the jury found several faots, and the question is, upon those findings, Was the prisoner guilty of any of the crimes alleged against him in the indictment ? If so, a verdict of “ Guilty ” is to be construed in respect of such crime. The indictment charges three crimes : 1, Assault so as to cause one Leslie Wilson actual bodily harm; 2, common assault; 3, “ did cause actual bodily harm to the said Leslie Wilson under such circumstances that if the death of the said Leslie Wilson had been caused thereby the said William McLeod would have been guilty of manslaughter.” The facts are very short. The accused was conducting what was called a “Wild West Show” at Hamilton, and giving an exhibition of his skill as a marksman. During the course of the exhibition he invited any member of the audience to sit at some distance from him and he would, witn a shot from a rifle, blow the ash from a cigarette which the volunteer was to smoke at the time. Leslie Wilson volunteered, and the shot was fired at his cigarette. The result was that a wound was inflicted on Wilson by the shot from the rifle entering Wilson’s cheek. The jury have found these facts. They find also that the accused was an expert shot; that he fired with the full consent of Wilson at Wilson; that he did injure him ; that the wound was not dangerous, but if the bullet had struck some other part of his face it would have endangered his life. They also found that Wilson moved his head. The jury did not say whether he consciously moved his head or not, but it may have been that it was an unconscious movement by Wilson, as Wilson stated on oath that he did not move his head. These being the facts, do they show that, at all events, there was an offence under the third count of the indictment ? Section 206 of the Criminal Code says, “ Every one is liable to two years’ imprisonment with hard labour who causes actual bodily harm to any persons under such circumstances that if death had been caused he would have been guilty of manslaughter: Provided that this section

shall not apply to any of the offences specified in sections one hundred and sixty-six to one hundred and sixty-nine hereof.” Tbe first question is, What is the definition of “ manslaughter ? ” In New Zealand we have no right to go to the common law to ascertain what would be manslaughter at common law ; we must refer to our own Criminal Code, and it provides that “ manslaughter is culpable homicide not amounting to murder.” Now, that is, if a person culpably kills another without meaning to kill him, or, in certain events such as are mentioned in section 184, that culpable homicide would be reduced from murder to manslaughter, except in cases coming within paragraphs ( b ), (c), and (d) of section 182, or in (a), (b), and (c) of section 183. It is clear that no person can consent to another killing him : See Stephen’s History of Criminal Law (Vol. iii, at p. 16). An attempt to commit suicide is an offence ; and if a person asks another to kill him, and that person does so, that person would be guilty of murder. Duelling has ever been a crime in English law. It therefore appears to us clear that if, as in this case, bodily harm was caused to Wilson under such circumstances that if death had ensued McLeod would have been guilty of manslaughter, that the prisoner comes exactly within section 206 of our Criminal Code. It is unnecessary, in our opinion, therefore, to consider whether the accused could be found guilty of assault causing bodily harm or of common assault: See Reg. v. Coney (8 Q.B.D. 534, at p. 549), per Stephen, J. In England it has been said that engaging in a fight without gloves which ends in the death of one of the fighters would amount to manslaughter. The killing would be a wilful and wanton act. Where, however, there is a game such as football, or a lawful sport such as wrestling, or even boxing with gloves under certain conditions, should an accident occur and a person is killed that would not make the person who killed the other guilty of manslaughter; but “ even in lawful sports,” it is said in Russell on Crimes (7th ed. 788), “ if the weapons used are of an improper and deadly nature the party killing would be guilty of manslaughter ” ; and a very old case is mentioned there in which Sir John Chichester, in playing with his manservant, made a thrust at the servant with the sword in the scabbard, and the servant parried with the bedstaff, but in so doing struck off the chafe of the scabbard, whereby the end of the sword came out of the scabbard, and the thrust, not being effectually broken, the servant was killed by the point of the sword. This was adjudged manslaughter see Sir John Chichester’s case (Aleyn 12; 82 E.R. 888) though possibly the case might nowadays not be so decided, as the weapon when used was not dangerous, and only became dangerous by accident: See note to Hale’s Pleas of the Crown (Vol. l, at p. 473) by Wilson. Here, although the sport —if it can be termed sport—was indulged in with the consent of Wilson, still a lethal weapon was used and in risky circumstances, and in our opinion, if Wilson’s death had ensued, McLeod would have been guilty of manslaughter. That being so, tbe verdict of “ Guilty ” should, in our opinion, be entered on the third count of the indictment. [Solicitors for the Crown: The Crown Law Office (Wellington),]