CITY POLICE COURT.

Evening Star, Issue 3801, 30 April 1875, Page 3

CITY POLICE COURT.

Friday, April 30. (Before S. S. Fish, Esq. and B, H. Leary. Esq., J.P’s) Sly-gbog Selling.— Jße Police v. Arrow,— On their Worships taking their seats on the Bench, Mr Fish said: This case was adjourned —or rather judgment suspended—at the request of the defendant’s counsel, for the purpose of enabling the Bench to consider certain points | which he raised. The Bench, knowing that the. Act was only just now being brought into operation so far as its penal laws are concerned, and fearing that other cases might be brought before the Court similar in nature, have given the points raised by Mr Barton as much time as they were able to do, and they are now preJ>ared to give judgment In this case the deendant’s counsel applied for suspension of judgment on the following grounds, viz.—First, that the conviction must, to hold good, recite both parts of clause 6 ; second, that if both parts were recited that it must be quashed, inasmuch as no proof had been given that the liquor had not beep sold as “perfumery;” or as a .chemist, druggist, or apothecary as “medicine” ; and third, that the proviso < i negativing portion of the clause should have been recited m the information and summons. The Court delivered its judgment as under The general rule ef law dispenses with the proof of a negative and casta the burden of establishing the exceptive in the affirmative upon the party seel£ mg to protect himself under it. Where, however the exemption is. incorporated with the offence’ that is to say" where the clause creating the offence incorporates the exception, the rule does not apply. For example of this is the clause mil and 12 Vic. c. 49, “ It shall not be lawful for any licensed victualler to open his house for the sale, Ac., except as refreshment for travellers.” there is port of the enactment and must be negaaved by the prosecution. But there is an acknowledged distinction, where the exceptions some by way of proviso iu a separate clause. In such a case the defendant must bring himself by proof within the proviso hy which he seeks to protect himself. The 6th section of the Act of 1873 creates a specific offence: the sale of alcoholic honors by a person not duly licensed. It has been held in Bex v. Hansom that in a case of a conviction hy two justices for selling ale without a license the informer was not bound to negative the existence of a license. The defendant was bound to prove he was licensed, if he relied on that. The proviso in section 6 does not rend as an exception, further than saying that "no license shall be required for the sale of alcoholic liquors as perfumery, &c.” if it is held that a person claiming to be licensed must himself irore his privilege, it appears to the Bench clear that any person claiming an equivalent privilege—namely, that the sale was perfumery— must prove it. The information shows tho exemption does not apply, and the evidence supports the information. It was ale which was soldT for drinking. The prosecutor, in establishing this, destroys the exemption, and, in our view, no further proof is necessary. The law does not encourage needless repetitions. If the sale of ale for drinking is proved, it is surplusage to add: “ The said alcoholic liquor not being sold as perfumery, or spirits as medicine, or by auction,’* The fact of the sale shu‘ s out the exemptions.—(See Paley, p. 121,122, 123, and 124. ■ r “® r e are no circumstances specified in the statute the sale, by an unlicensed person, of ale lawful. Hence, there appears to be no necessity'to set forth an exception. Nothing can ,F° a^ r than, the definition of the offence in .i.: 1 ®* 1, Th , ei ’ e is no exception in the enacting clause, and a defendant, desiring the benefit of the nafm^ofN^ 18 * J- )rove it- In this case, from tho thnffrS^ l^? 6 ’ 86(5,1 a proof is impossible, so rn v“T«3V? ctß F o7ed > the exception cannot wo Paragraphs in middle of confirmed the Bench is therefore connrmetl, and the defendant fined in the sum of twenty pounds and costs of Court! Offences. -William Laffem for drunkenness, was fined ss, in default 24 fours’ imprisonment; for assaulting Constable Carter

10s, with a like alternative; and for damaging the constable’s uniform was ordered to pay the amount of damage done (20s), in default 24 hours’ imprisonment. Vagrancy.- Harriet Makeham was charged with having no lawful means cf support.— Evidence was given by the police as to accused’s drunken habits, and that she had no fixed place of abode. Her eldest daughter had been committed to the Industrial School for five years for burglary ; and two of her children would bo brought before the Court to-day. Her family had been brought up in a most discreditable manner.—The Bench, after looking at a letter handed to them by the accused, said that it appeared she was in receipt rf money, and as they wished to give her a chance of reforming discharged her with a severe admonition.

Neglected Children. Charles Samuel Makeham (9) and Beatrice Rose Makeham (0) were committed to the Industrial School as neglected children, the former for six and the latter for seven years. A Peculiar Case.— Samuel Stracey pleaded guilty to a charge of obtaining LI and board to the extent of 11s from J. D. Hntton, proprietor of the Caledonia Hotel, Walker street. —Accused went to the Police Station last night and gave himself up to Sergeant-Major Bevau, stating that he had given to Mr Hutton a valueless cheque for L 25. and was consequently very uneasy. Hutton, on being communicated with, said that he had received a cheque from accused for that amount.—Prosecutor, on being called, said that he received a cheque from accused for L 25 on Monday, the cheque being five days overdue. As it was drawn on the National Bank, West Taieri, witness' advanced him LI till he could get it cashed. Witness had paid the cheque into his account in the Colonial Bank, and had received no return of its dishonor. The cheque was signed by one White.—lnspector Mallard : If there is the crime of passing the valueless cheque, one of forgery has also been committed. —Mr Fish; The position of the Bench is this—there is no case to go on with. The man may be a lunatic for what we know. He is improperly in custody. He is brought before the Bench on a charge pleads guilty, that is tine -but there is not the slightest evidence to show that the cheque has not been paid.—lnspector Mallard, under the circumstances, asked for a remand till he could find out whether accused was guilty of forgery or of passing a valueless cheque.—Prosecutor, on being re-called, said in answer to the Bench that he believed the cheque was valuable, and that the money had been paid into his account, he not having received notice of its dishonor. The cheque was signed “ John White.”—Mr Leary: It does not follow that because a man presents a chequesigned by White that he forged the name.—Mr Fish: I cannot see what is before the Court.—lnspector Mallard : The man commits an offence, and presents a cheque signed with the name of White.—Mr Fish: How do you know an offence has been committed ? As I said before, the man may be a lunatic.—Prisoner now said that he had committed forgery. That was what he should be tried for. —Mr Leary : The man seems very anxious to be convicted of something, I should not think he would run away, if he is so anxious.—Mr Fish : Well, the Bench is clearly of opinion that this man must be discharged. There is not a shadow of reason to detain him. The evidence altogether goes to prove that he was telling a falsehood. Prosecutor receives a cheque from him and pays it into a bank, and although the branch bank on which the cheque is drawn is only twelve miles from town he receives no notice of its dishonor.—lnspector Mallard : The accused makes a voluntary statement that he gave a valueless cheque.—Mr Fish : You know well enough that you cannot convict a man on his own evidence.—lnspector Mallard asked for a remand for a week, but this the Bench refused to grant, and discharged accused without prejudice. Petty Larceny. Ellen Jack, a young woman, pleaded guilty to a remanded charge of stealing two one pound notes, and was discharged with a severe admonition. Remand. —William Roberts was charged, on remand, with having, on April 19, unlawfully taken an unmarried girl, fifteen years old (Florence Maud Brown) out of the possession of her father without his consent or knowledge. Mr E. Cook prosecuted, and Mr] M'Keay defended.—At the outset, Mr Cook said that the girl had not returned to her home, and that the efforts of the police to find her had proved futile. He therefore, after offering some additional evidence, applied for a remand till Tuesday, which was granted.