CHARLESTON. RESIDENT MAGISTRATE'S COURT.

Westport Times, Volume II, Issue 281, 25 June 1868, Page 2

CHARLESTON. RESIDENT MAGISTRATE'S COURT.

Wednesday, 24. June, 1868. (Before C. Broad, Esq., U. M.) PROSECUTION UNDER THE CUSTOMS ACT. Philip Roouey, appeared on remand, to answer to an, information charging him with having illicit spirits on his premises ; concealing the same, and obstructing Mr Brewer, and inspector Franklyn, Customs officers, in the discharge of their duty. Mr Pitt appeared to conduct the prosecution, and the defendant, was represented by Mr Tyler, and it was arranged to deal with all the information at one, and at the same time. In concluding his opening speech Mr Pitt remarked, that in consequence of the increase ot illicit distillation the G-ov-ernment had determined to take energetic measures for its suppression, and he was instructed, in this case to press for the highest penalty the law would allow.

The first witness examined, was Inspector Franklyn,- who deposed as follows—l am Inspector of Police, and a Custom House Officer. Between 11 and 12 on Saturday evening last, I went to the defendant Rooneys house, in company with Mr Brewer, Sergeant Kiley, the latter was looking for an offender. Rooney showed us over the house, and at my request took us to the cellar door unlocked it, struck a match and the Sergeant lighted a candle and we all entered. I saw a two gallon keg with the bung out and tooK it up, smelt the contents and put it down again, Rooney made no objection. I caught sight of another keg of five gallons with a tap in it and some red seal on the bung. Another was standing in front of it. I exclaimed I had seen one like it before on the same day, and I asked Rooney to let me have a look at it. I had the same day seized a similar keg at Brighton containing illicit spirits. Rooney said I should not touch it. I reminded him we were Customs Officers, and pointed out Mr Brewer, who was in uniform. I told him I believed the keg contained illicit spirits, and claimed to look at it. He refused to let me, and on my attempting to take it he put his hands on me and pushed me away. This happened more than once, and seeing there was no chance of getting peaceable possession, I gave him in charge. Defendant resisted. I then tasted the spirits, and found it was in all respects similar to some I had tasted that day at Brighton, in an illicit still. The keg of spirits was here produced, and the bung being drawn, and contents tasted, the witness said it was the same. I subsequently took the keg into Rooney's hotel, and Mr Brown tasted the contents and found it to be 10. 0.p., The keg was then sealed up and taken to the camp. Cross-examined by Mr Tyler.—Was appointed a Customs officer by Mr. Munday, officer in charge of Customs at Westport. Held no appointment from the Governor. His Worship ruled that it was sufficient for a witness to say on oath that he was an officer of Customs, without being required to produce written authority. Cross-examination continued.—Had no search wai'rant. Was present at the request of Mr Brewer, who held a writ of assistance. The writ of assistance was not produced to Mr Booney, he did not ask for it.

Being pressed on the point, the witness recollected pouring some spirits out of the first keg, and spilling some. Was not a spirit drinker, but was of opinion the spirits seized, were the produce of illicit distillation. Could not however swear that it was, or that the duty had not been paid thereon. Henry William. Brewer, officer in charge of Customs at the port of Brighton, said, —From information received he proceeded to Booney's accompanied by Inspector Frahklyn and Sergeant Kiley, and after looking through the house went below to the cellar? Inspector Franklyn took up a keg, and poured seme of the contents into a tumbler. He then wished to inspect another keg, but the defendant would not allow him to do so. The inspector told defendant they wcro officers of customs. On witness expressing a wish to see the contents of the keg, Inspector Franklyn attempted to get hold of it but was pushed aside by defendant more than once. The spirit produced is the same that was seized, and he believed the same to be illicit. Cross-examined—Have no distinct authority from the Governor to seize illicit spirits. Did not read the writ of assistance to defendant, or show it to him as he did not ask for it. Could not swear that the spirit seized was of illicit manufacture, or that the duty had not been paid thereon. Sergeant Kiley and Constable Rigbye gave evidence corroborative of °that of the two previous witnesses. Mary Griffin, barmaid, was examined, but_ without any new fact being elicited. Mr Tyler called no witnesses for the defence, but submitted that the Crown, had no case, inasmuch as neither Brewer or Franklyn were possessed of the requisite authority to seize spirits, it being laid down in the sth section of the act, 1867, that only inspectors of distilleries, or others* appointed by the Governor, were empowered to do so. Mr Pitt pointed out that another clause of the act gave authority. Mr Tyler said, that at any rate the information for obstructing Mr Brewer ought to be dismissed, no evidence having been brought to support it. His Worship remarked that he looked upon the charge of obstructing as a general one which included the two officers. He thought the information as to concealing might be dismissed.

Mr Tyler then made a powerful and long address. He pointed to ihe fact of Rooney giving every assistance te the officers up to the time of their spilling his grog, as showing that ho was innocent of any wrong doino-. The Crown suggested that the spirits found on the premises was of illicit manufacture, and according to the terms of the act called upon the defendant to protect the revenue. He contended that in a place like Charleston, which was not a port of entry, this was impossible to be done, and after strongly commenting on the injustice of such a requirement, and the disastrous consequences to business which would follow its enforcement, the learned counsel proceeded to argue that no proof having berm given by the Crown of nbnpay° ment of duty on the spirits produced, and none being forthcoming from the defendant, it remained an open question before the Court whether duty had been paid or uot, no evidence being given on either side. According to the Act however, the offence for which a penalty was imposed was for haviug possession of spirits on which the duty had not been paid, and in the absence of any proof on this point, he submitted there was no alternative but to dismiss the information. He presumed the Bench would not assume that duty had not been paid, and therefore he could not see how they could convict. With regard to the charge of obstructing the officers, the learned Counsel contended that the circumstances of their not showing their authority justified the defendant in resisting a spoliation of his property; and in any case the resistance was of so very slight a character that the smallest fine would be a sufficient punishment. After a short adjournment, the Court resumed. • His Worship, in giving judgment, remarked that with regard to the point urged by defendant's counsel about the onusprobandi lying with the defendant, the Bench did not anticipate the disastrous consequences pictured by Mr Tyler. Surrounding suspicious circumstances must be taken into consideration incases of this sort,'and in this case no attempt of any kind had been made to bring forward rebutting evidence, showing that the spirits seized had come into the defendant's possession in the ordinary way of trade. Ono reason for the high penalties named in the last Act was to protect tho revenue. There was no evidence

lo show that tho revenue had suffered to any eonsiderahle extent by tho defendant's conduct, the lowest penalty of £SO would therefore ho inflicted for the offence of having possession of illicit spirits. With respect to the other charge, the Bench would suggest tho propriety of that being withdrawn. |