THE KING COUNTRY CHRONICLE. MONDAY, JULY 19, 1909 TE KUITI S.M. COURT.

King Country Chronicle, Volume III, Issue 174, 19 July 1909, Page 2

THE KING COUNTRY CHRONICLE. MONDAY, JULY 19, 1909 TE KUITI S.M. COURT.

Thursday, July 14th, 1909. Before Mr F. O'B. Loughnan, S.M. Judgment for plaintiff went by default in the following cases:—Stevens v. Thompson, claim £S3 8s 6d and costs £2 9s; Tinkler v. Rutherford claim £4and costs ss; Green and Colebrook v. Huia Rawiri, claim £ll lis Sd and costs £2 3s 6d; Rouse v. same, claim £3 8s and costs lis. Judgment Summons.— A judgment debtor, named Collett, afer being examined was ordered to pay the amount of the judgment debt and costs forthwith. £2O Is; the order to be suspended if debtor pays £3 j:er month the first payment to be made on August 15th. -A Chemist's Privilege.—

A. A. Lissaman was charged with keeping liquor for sale at Te Kuiti. Mr Mays, Crown Prosecutor, appeared for the prosecution, and Mr Finlay for the defence. Mr Mays in outlining the case for the prosecution, said the circumstances of the case were that the defendant was a chemist at Te Kuiti and sold a preparation Molendo, which was a medicated port* wine, prepared at Christchurch. Constable Matthew purchased a bottle of the wine and took it to Mr Pond, Government Analyst, for analysis as to the percentage of alcohol it contained. The preparation was found to contain over 31 per cent, of proof spirit, which was over 11 per cent, stronger than the law allowed for New Zealand wine. In respect to chemists in ordinary no-license districts, there was provision made for the supply of liquor by chemists on a medical certificate, but in a proclaimed area the same privilege did not obtain. The defendant may have supplied the liquor in good faith in the ordinary course of nis business but, he had no license to sell and must be held to have made a breach of the law. Constable Matthew gave evidence asto the purchace of a bottle of Molendo taking the liquor to Mr. Pond for the purpo-fes of analysis. In cross-examination by Mr Finlay witness said when defendant first got up the wine there was some trouble about getting it up on the railway,and Mr Lissaman came to witness and asked him if there was no way of getting the wine in without having to go to Te Awamutu for it. Witness advised him to label it medicine. Defendant told witnses it was quinine wine I and recommended it as a good tonic. | J. A. Pond, Government Analyst, gave evidence as to th • strength of the wine. It contained 31.03 of proof spirit, wbichws about half the | strength of brandy or whisky, and about equal to ordinary port wine.

In cross-examination Mr Pond said he did not examine the preparation for any other ingredients. He did not consider it an ordinary quinine wine; there was not much quinine in it. To the Bench: Did not know percentage of spirit in Sterne's wine and other similar preparations. This concluded the case for he prosecution.

Mr Finlay, in opening for the defence, quoted the various sections of tbei Licensing Act, which applied to the sale of alcohol by chemists in prohibited districts. He held that though no special provision had been made in respect to chemists in a proclaimed Native area, the intention of the Act was to make such provision. The fact that ths Act provided for the sale of alcohol to Maori women on a medical certificate was the clearest possible indication of this, (n all legislaion dealing with the sale of liquor to Maoris, the sale to female Maoris was expressly prohibited, and it was reasonable to suppose if special provision was made for a female Maori to procure alcohol in a proclaimed district, it was taken for granted that other people could obtain it. There were no licenses and chemists were the people to whom a medical certificate would naturally be taken. Mr Mays pointei out that the wording of the section relating to proclaimed areas was definite and conclusive. Whatever the intention of the Legislature was the wording of the clause was clear and absolutely prohibited the sale by anyone. His Worship held that it was impossible to go behind the wording of the clause and a chemist was therefore not privileged. Mr Finlay: Then we have the absurditfy of a Maori woman being able to obtain alcohol in a proclaimed district, and everyone else prohibited. His Worship : That is so according to the wording of the Act. It was the manifest intention of the Legislature to provide for the sale by Chemists, but the Act, instead of carrying out that intention, absolutely prohibit it. The defendant in evidence stated be had been approached by the manufacturers of Molendo to accept the agency and had done so. The article was described to him as a medicated quinine port wine of high quality. When the trouble arose about getting the wine to Te Kuiti from Te Awamutu.he approached Constable Mathew who advised him to label the goods medicine. Witness objected saying the stuff was medicated wine, and he labelled it accordingly. Subsequently the wine came through all right. With regard to the sale he always exercised discretion as to the person supplied and had refused to sell to persons he thought required it merely for drinking purposes. Had spoken to Constable Matthew several times recommending the wine as an excellent tonic. When the

Constable came to purchase the bottle witness naturally concluded it was to be used as a tonic. His Worship: "You didn't take Constable Mathew for a Maori woman, I presume." Witness had repeatedly had testimony as to the value of the wine as a tonic. Other medicated wines sold by chemists had about 17 per cent, of alcohol which is greater than the percentage contained by Molendo. Dr Zobel stated he considered the wine a distinct mediciine in certain cases and had prescribed it. It was more than a tonic; it was a medicine. Some men might drink it for its intoxicating qualities; an ordinary rational person would not. To Mr Mays: Would recommend port wines and other liquors as medicine. Would expect the wine in ques- 1 tion to contain a fair amount of alcohol. Judging from the taste witness would think the wine did contain a grain to the ouncie. If a man took say half a bottle of the wine he would probably be intoxicated. His Worship in deivering judgment sid he consdiered the intention of the person who drafted the Act was to exempt chemists in proclaimed areas from the provisions of the Act, but this had not been done, and he, His Worship, could not include it. It was thn duty of the people in Parliament to make the laws. Magistrates would only administer them is they stood. With regard to the question as to whether the wine was a medicine he was of opinion that where alcohol was mixed with poi ;onous substances it was a medicine; when it wan used as an agent for administering drugs he thought it could be classed as a medicine and —he said it doubtingly—outside the provisions of the Act. He was of opinion that the wine in question could not be classed as a medicine, and thought it his duty to convict. Considering the circumstances he was extremely loth to do so. Mr Lissaman bad conducted himselfy in a perfectly candid and open manner throughout, and was to be sympathised with. Mr Mays: Mr Lissaman is the uni fortunate victim of a test case.

Mr Finlay urged that a conviction should not be recorded against his client, who had acted in good faith all through, and His Worship decided that upon Mr Lissaman paying costs to the amount of £8 12s, to dismiss the case. Mr Mays said he would call the attention of the Crown law authorities to the anomaly with a view to getting the Act amended. --A Liquor Ca^e.— E. C. Falwasser was charged with keeping liquor for sale at Te Kuiti. Mr Mays appeared for the Crown and Mr Finlay for the defence. Constable Mathew, for the prosecution stated that on April sth last he watched defendant's premises. A number of people were in the office and one came out under the influence o? liquor. Two others whom he should judge to be under the influence did not come out, but slept there that night. On May Sih several persons were inside the office drinking. About 7 p.m. he looked in the corner of the window and could see whisky being handed round. About 10.30 the same night defendant and three others went into the office and witness saw one man having a drink. Witness detailed other occasions when he asw people in defendant's office drinking what witness took to be whisky. To Mr Finlay: It was quite natural a number of people should be in ana out of defendant's office transacting business. On May Bth saw Mrs Falwasser after the play in the Hall was over. Did not see her before eight o'clonck. Knew a man named Weir. He might have been in defendant's office that night. Motu Hetiri, the Maori Constable, corroborated Constable Mathew's evidence as to the events on the dates mentioned, and further stated that he saw two Europeans go into defendant's office on the Bth having with them two parcels labelled liquor. Witness said be thought there would be four or six bottles in each parcel. To Mr Finlay: Witness did not know the Europeans and had not seen them before or since the Bth. The men got off the 4 o'clock train at the station and went to the office after the train left. Witness followed the men. The parcels were labelled on the side. Witnejs was standing close to the men on the station platform when he read the labels. The witness was here submitted to a reading test of a written liquor label, and had some difficulty in decypering it.

The defendant in evidence related the occurrences of April sth. A man named Young came to the office with portion of a bottle of whisky. Witness and two other men were present. The liquor was drunk among them and Mr Young went away and returned with two more bottles. Witness thought Mr Phillips came with Mr Young. During the afternoon most of the liquor was consumed. Two of those present had rather much and went to bed in a room off the office. On the Bth, close to 8 o'clock in the evening a man named Weir, who had evidently returned from Te Awamutu with a bottle of whisky, asked witness if he objected to him —Weir—bringing some friends into the office to have a drink. Four or five of them came in and most of the bottle was consumed.the remainder being left in the office. Witness had known Weir in Taranaki. Witness asked the men to excuse him as he was going to take his wife to the play, and they all went away. On returning from the play accompanied by his wife and two friends, they finished what was left in the bottle. Witness had no knowledge of two men coming to the office with two packages of liquor. People have at times brought liquor to the office and have drunk it there. Corroborative evidence as to the happenings on the sth was given by C. T. Garmonsway, W. Thorp, and C. H. Phillips. As to the events on the Bth T. Weir stated that in company with three friends he went to Mr Falwasser and asked bim if they could go into the office and have a drink; the party had two drinks each and left. Witness supported the evidence of defendant as to the latter taking his wife to the play. His Worship at this stage said he was satisfied defendant had not kept liquor for sale and dismissed the case.

A man named Bennett was charged with a quantity of liquor intended for sale at Ohura. Constable Mathew conducted the prosecution and Mr Finlay appeared for the defence. Constable Mathew stated that on April 26th he saw defendant get on the train at Te Awamutu wih two cases of whisky. When the train crosssed the King Country border witness went into the carriage where defendant was and spoke to him on the subject. He said the quantity of liquor was unreasonable and took defendant's name. Defendant said the liquor was for his own use, and he was not going to sell it. Defendant said he had told Constable Owen at Ongarue he was going to bring back whisky, and asked witness not to say anything to Owen. Witness said he could not promise. To Mr Finlay: The cases were labelled and defendant's actions were perfectly open. Witness said there had been convictions for having only one case. Defendant said "I suppose I've done wrong" and offered to throw one case out of the window. Witness said it was too late, as they were in the prohibited area. Defendant said surely you don't class me with the sly grog sellers. I Constable Owen deposed that defendant saw him at Ongarue and spoke about bringing up whisky. Witness took it for granted he meant a case. The evening following defendant's return witness received a letter from Constable Mathaw. The following day witness went to Ohura and saw defendant who showed him what whisky there was remaining—a case and some bottles. Defendant detailed what had become of the remainder of the liquor. To Mr Finlay: No drink was observed at Ongarue on the night of defend-ant'-s return. The road from Ongarue to Ohura was very bad. There was no drunkenness at Ohura when witness was there. Considering the distance from a license area and the bad roads

the'quantity brought might not be excessive. Defendant, in evidence, stated he saw Constable Owen at Ongarue. Spoke about bringing up whisky. The Constable asked himl not to bring the liquor to the boardiighouse, therefore witness placed it in his shed for the night. On the train coming from Te Awamutu a man, who said he was Constable Mathew, came and spoke to witness about the whisky, saying witness was bringing in too much. Witness explained that he had spoken to Constable Owen about it, and a;ked if there was going to be a fuss about it. Offered to throw one out of the window but Constable Mathew said we were already in the prohibited area. Defendant corroborated Constable Owen's evidence as to the amount of liquor there was when the Constable visited Ohura, and detailed what had become of the remainder. A number of reputable witnessss including Messrs Williams, Woof, Morpeth, Bruce, and Flannagan, supported defendant's evidence as to the fate of the liquor, and scouted the idea of defendant selling whisky. His Worship held that defendant had discharged the onus thrown upon him to show that the liquor was not for sale and dismissed the case.

George Warner was charged on the information of the police with behaving in a violent and offensive manner in a railway carriage. Mr Sharpies appeared for defendant and pleaded not guilty. After hearing the evidence for the prosecution His Worship, on the application of Mr Sharpies dismissed the information. Albrechtsen v. Tahu: Claim £5 for money paid for a horse which was warranted sound but which was subsequently found to be lame and was returned to defendant. Mr Finlay for Plaintiff, and Mr Sharpies for defendant. After hearing plaintiff's statement Mr Sharpies intimated that the defence admitted the sale and warranty, but denied having returned the horse or having seen plaintiff about it since. After consulting with his client Mr Sharpies said he withdrew the defence an judgment went for paintiff for £5 and costs £1 16s. In the case of Rehi Hori v. T. Tooman, the evidence of which had been taken at the previous Court sitting, legal argument was heard on Friday morning, Mr Finlay appearing for plaintiff and Mr Sharpies for defendant, After listening to counsel, His Worship held that "plaintiff was entitled to damages and gave judgment for £3O. Mr Finlay said that in view of the fact that costs in the case would be extremely heavy he would endeavour to arrange with his client to make the expenses as small as possible. He suggested that the question of costs be held over until next Court with a view to arranging them. This course was adopted.