The Licensing Prosecution.

Taranaki Daily News, Volume XLVII, Issue 7897, 12 August 1905, Page 2

The Licensing Prosecution.

Conviction Against Licensee and Barmaid. At the Police Court on Friday moraine, Mr T. Hutchison, S.M., gave his reserved decision in the prosecution brougnt by the police, against J. Cody, licensee of thu Hotel Commonwealth, and May Carpenter, barmaid, on the charge of soiling liquor to »'. Mauri tnainoU Hiko, ho then being in a state of intoxication.

At theirctxucst of Mr T. S, Weston, on behalf of the defendants, a further witness, named Kdwurd Acltlom, was examined for the defence Ho-stated that he was in tCw hotel on Saturday afternoon, last. The native Hiko was at the bar, and in witness' opinipn was sober. This opirrion was substantiated by the native's rational conversation. Witness left the hotel at a fiunrtcr to tour, and the native took his dipnrture" prior to (this.

The Majgistrato stated that this evidence in no way disturbed the conelusions he hjari come to on the ques. tion of IJact. Proceeding to read bis written judgment, the S.M. said that the question of fact was whether whoii the beer was supplied was Hiko in a of intoxication-

The question'was whether the man. was in nn intoxicated state whjen' •supplied with the beer at the Hotel Commonwealth. Timo was here material. Sergeant Haddrell stated

that he saw Hiko coming across th» ; road to the station at 4.10, nnd Hiko himself said that ho was (n tho hotel bar just before going to tho station, Tho barmaid said that Hiko came into tho bar IxT.ireen' 3 and 3.30 p.m., but the accuracy, of this statement was open to sorious doubt, it was evident her evidence of tho time was a mere guess. It was clear on the admission of tho defendant Cody that there were in fact somo natives in the bar as late as 4 o'clock, and Miss Carpenter's oqcfua'intance with the native Hiko was so slight that on thu following Monday when confronted with him she could not remember that she bat! seen him oji the Saturday. Tho S.M. concluded that the native came straight from the hotel, bar to the station. Tho MJiori had been drinking at the different hotels during the day, and it was agreed that ho only hatl one gljass of beer in tho Hotel Commonwealth, and was there only five or six minutesi. In the S.M.'s opiiiion, the rational conclusion from tip whole pvidenre was that Hiko was already in a ftate ot intoxication when he was supplied with the glass of beer by Miss Carpenter. It «n'shl,»U! that, if lier anind bad!

in fact been really Slirectcd to the-:' matter, she bc'ieved the native was not really drunk, but her belief, however honest, cou.ld not operate to bar a conviction. Tho eases of Cuudy and Lecocq, Q.H.D., Sml the New Zealand' case of McVeigh v. Eccles wcrif cl.ar 0:1 this point. Though Ule licensee personally knew nothing of the breach of the law. that did not free him from the Consequences of the act of his servant, and the defendant Cody must '.hcrefore Iw convicted. Tie facts further involved the conviction of the other defendant under wet ion 4"> of the Act of .1904, which introduced the principal of making ihe servant liable as well as the ran-' ployer for the. sanifl offence. Miss Carpenter would therefore tio convicted. Under the Licensing Act of 1881, a conviction on the presept charge entailed nn endorsement of-tlio license. Hut since the Act of 1901 such endorsement was placed in the discretion of the Court. Wltnout attempting to lay down a. general principal applicable to every case, for the special circumstances of each caso must l>e considered, the S.M. thought an endorsement! ■ouKhti not to follow wheVe it appeared that the licensee wan not personally culpable, and moreover itind (as iiiy careful selection of his servants, and by bona fide instruction to them) dome his best to prevent a breach o< tho law, and that ' tho particular /breach Had occurred through the slip or inadvWLance of a servant. In the present casr, not only was Ihe licensee hdmatk'dly not pcrsoiwlly

culpable, but tho barmaid had, according to the native's own testimony no reiasori to suppose thkt ho was drunk, and may have honestly believed him to be sober, as she asserted. There was reason to therefore that her supply to tho native was inadvertent. In these circumstances the ' S.M, thougfnt en dorscroent ought not to follow,-.

The licensee was lined £."> with costs and the barmaid 10s. Mr Weston asked the S.M. to increase the fine over £.", fco that the defendant Cody could appeal in ths event of deciding on that course. The S.M. : I thought from Counsel's previous statements that the mere fine was nothing, but the endorsement everything. However, the fine will bo increases to £6. Tho hearing of tho second charge, that of supplying whisky to the Maori Hiko for consumption off the premises, will ir)ri ih'eard on Wedneslay next.