SUNDAY FRUIT SELLING.

Globe, Volume XXII, Issue 1952, 27 May 1880, Page 3

SUNDAY FRUIT SELLING.

Henry Marks appeared at the B'sidenl Magistrate Court to-day to answer an information laid by constable Cullen for having committed the above offence.

Mr Joynt for the prosecution, Mr Stringer for the defendant. Mr Joynt said the proceedings were taken under an Act dating so far back as the reign of Charles 11., an Act entitled an Act for the better observance of the Lord's Day, commonly called Sunday, the clause upon which the information was based being—- " For the better observation and keeping of the Lord's Day, commonly called Snnday, be itfenacted —That all the laws enacted and in force concerning the observation of the Lord's Day, and referring to the churoh thereon, be carefully put in execution, and that all persons whatsoever Bhall on every Lord's Day apply themselves to the observation of the game, by exercising themselves thereon in the duties of piety and true religion, publicly and privately, and that no tradesman, artificer, workman, laborpr, or artifioer, or other person ■whatsoever shall do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord's Day, or any part thereof, works of necessity and charity only excepted. And that every person being of the age of fourteen years or upwards, offending under the premises, shall for every offence forfeit the sum of £5, and no person or persons whatsover Bhall publicly cry, show forth, or expose to sale any whares, merchandise, fruit, herbs, goods or chattels whatsoever, upon the Lord's Day or any part thereof, upon pain that every person so offending shall forfeit the oame goods so cried or shown forth or exposed to sale."

Constable Coles deposed to seeing the defendant's place of business open on Sunday evening, 16th May. He saw |John Barritt purchase sixpenny-worth of apples at the place and time named. John Barritt deposed to having made tho purchase mentioned by the last witness. Mr Marks solicited his custom on that occasion. This was the caee for the prosecution. Mr Stringer said the selling was admitted, but submitted that the action complained of, did not constitute an offence under any etatute in force in New Zealand, and that [if the statute under which the information was laid, were in force in New Zealand, there are no means of punishment in existence such as the statute requires, and argued his view of the case at considerable length. His grounds for the defence made, were identical with those brought forward on a previous occasion by him when information against the defendant for a similar alleged offence had been heard in this court and dismissed. Numerous and lengthy quotations were given by Mr Stringer from decisions in cases that he thought bore on the present action, but, throughout his defence he rested mainly on the two points before mentioned. Mr Joynt, addressing the Bench, regretted to find that at this period of time any statute, whether national or colonial, providing for maintaining the sacred character of the Lord's day should be looked upon as inapplicable to the circumstances of this community. He maintained that the statute under whioh the information waa laid is really in force in the colonies. In tho Act passed by the New Zealand Legislature in 1878, repealing obsolete or spent statutes, the laws thus abolished were carefully set out, but no mention or reference of any kind, is made by that Act of the etatute in question. He argued at some length that profanation of the Sabbath constituted an offence against the State, and is punishable accordingly. As to not having the means of punishment required by the Act he contended that fthe stocks was merely one form of punishment, and that form being now obsolete, any other might legally be substituted at the dißoretion of the Court. And further, the Justices of the Peace Act, 1866, provides that where conviction before this Court takes place and a fine inflicted, default of payment may be followed by distrlint,and failingsrecovery of the penaltyby this tneans,'power is given to imprison the defaulter which quite covered the present case. It followed therefore, that defendant might be convicted, and the conviction followed up in the manner he laid down until the stage at whioh confinement in the stocks was arrived at, when the question whether any other form of punishment might be substituted might be brought up, but until then, he maintained, there could be no stoppage of justice. The Bench though the whole question rested on whether it was possible to make the Babstitu'ioa of punishment as referred to by Mr Joynt. Judgment would be deferred till to-morrow.