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Witness The price of beer and atout has been so high in the canteen that we have had to sell it almost without any profit. Other can teens have had to raise the price of beer sup. plied to the men. We did not want to do so and we told the brewer that we should very pro- bably have to leave him and get a cheaper price for beer if his price continued high. We talked over the matter and went into the thing, and when, I saw these percentages were paid with- out being put to the profit of the canteen, I knew that would account for the profit-4 per cent being so low that the concern could hardly be run. That was my sole reason...
You had that matter in your mind when you went to Holliday, Wise and Co. P-These reasons have been growing in my mind since I had a conversation with the commanding officer some time ago,
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Then you went to Holliday, Wise and Co. for the purpose of enquiry into the cause of the beer being so dear P-No, not exactly into the cause. Then what was the precise reason for going to Holliday, Wise and Co. My memory is coming back, and I think I went to pay the bill on that occasion.
And to get the discount Not necessarily. Do you remember paying the bills yourself when you were canteen president in December P
do not remember.
Do you remember giving any instructions the canteen manager with reference to A Choo, the tobacconist ?—No.
Do you remember going yourself to A Choo and paying a bill for $23PYes.
Did you direct the canteen manager to change the tobacconist, as A Choo paid no discount? No.
Do you not know that the tobacconist was changed immediately P--I do not know that he was changed immediately.
Does A Choo supply the tobacco now ?- find it is somebody else who supplies it. He is cheaper than the previous man.
Did you see Sergeant Fretter in his quarters after he was placed under arrest P-Yes.
Yon asked him if he had received the $75.50? -I do not think I did.
What were you there for at all P-I went to see if the canteen had been handed over to the
other man.
Did you ask him if he received the money? The President--He says he thinks he did not. Mr. Francis-Such an answer is an absurdity. Witness-I cannot remember... Did you ask the question of Sergeant Fretter at any time I do not think: I did,
CHINA OVERLAND TRADE KEPORT!
Mr. Francis You had an order on Saturday last to produce a certain letter. Have you got it?
Witness-Yes, I produce it.
From whom is that letter From the Castle Bellingham Brewery to Holliday, Wise and Co., dated 9th February, 1897.
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not command
and obtained a receipt from him. Witness | mand or authority, it is understood it was the custom of some brewers authority with respect the supply to pay money to the canteen sergeant as a re- sale of malt liquor, and the section ööri.
command or muneration for looking after and tapping templates
authority. If a the beer. This was work which the brewer's prviate were appointed manager of the agents were supposed to do,
canteen he would have no more command or authority in respect to the sale of malt liquor than Sergeant Fretter had. With reference to the charge under section 40, which is, as I said before, a charge of disobedience of an order contained in the regulations, I submit there can be no disobedience where there is no knowledge or no proof that the order was' ever given' or communicated to the prisoner. It is essential for the prosecution to prove all the necessary. elements of the offence and when an order is communicated to an officer or man it is sbeo- lutely necessary that the order should be proved before he can be convicted of disobedience of that order. Before a man can be convicted of disobedience of a verbal order it must be shown that there was a specific command given to an individual. It is a fundamental principle of all law that it must be promulgated and mide public in some way proof of knowledge of this or at least communicated to
The letter was then read. It gave instruc- tions to Messrs, Holliday, Wise and Co. to pay to the canteen sergeant certain sums for look ing after the liquor. This letter was not signed and it was not admitted as evidence.
Two other letters were read which referred to the deliveries to be made by the Brewery and these documents were attached to the pro- ceedings.
The President-Had you any other definite orders with respect to these payments besides the letters ?
Witness-No.
This concluded the case for the prosecution. Mr. Francis said he did not propose to call any witnesses.
Lieutenant Stewart intimated that he had no remarks to make on the evidence.
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the individual.
rule or order is, I submit, essential. Now in this case, not only is there no proof that this order was ever published or promulgated or made known to the prisoner individually, but there is a considerable amount of evidence that he never Mr. Francis then addressed the Court as saw it or had the opportunity of seeing it. follows-I ask leave in the first place to call the His commanding officer, Major Mills, expressed attention of the Court to the paragraph in the his opinion in the concluding sentence of his regulations with reference to the question of evidence that Sergeant Fretter had not had an Did you ask A Choo for any commission or the prisoner being guilty or not guilty, which opportunity of seeing the War Office circular. discount on the amount you paid in?-I asked shows that it is often advisable for the prisoner It is clear, I submit, that no notification was if they paid any discount and he replied no.
to plead not guilty with a view of calling wit issued that such a circular had been received by You had a cigar from him? (Laughter.)-nesses in extenuation of the offence or in miti the Regiment; it was never put in regimental Nó.
gation of punishment. I wish also to call orders, which might have enabled Sergeant attention to the fact that by these regulations Fretter to make enquiries about it. It is also the prisoner is at liberty to question the clear on the evidence that the circular never motives of those bringing the charge and even was in fact brought into operation in the to show that others have been guilty of the Regiment at all by anyone. It contains pro- offence and that in so doing he is justified in visions which, if put into operation when re- bringing out anything tending to mitigate the ceived by the Regiment in Gibraltar would character of the offence or in mitigation of have prevented payments ever having been punishment. The offence with which the pri offered. The circular requires that all contracts soner in this case stands charged, apart from the for malt liquor shall be made after the arrival form of the charge, is that he received money at the station, that the contract itself, when in disobedience of a prohibition contained in made, shall bind the persons supplying not to section 4 of the rules for the management of make any payments whatever to anyone. It Garrison Institutes, 1896. Of course it is clear provides that no discounts shall be received that the prisoner received the sum of $75.50 except under exceptional circumstances; that from Messrs. Holliday, Wise and Co., and that
no money shall be received by the canteen Holliday, Wise and Co. are the agents of the manager, but shall be taken direct from Castle Bellingham Brewery, who supply the the tills by the President or some member of Regimental canteen with malt liquor. As the the Committee, and that all moneys for change result of these two facts two charges have been shall be provided by a cheque from the Pre- put against him, one that he has violated sec-sident. Now it is clear, I submit, that none fo tion 23 of the Army Act, and the other that he has violated section 40, the violation being Did you hear Sergeant Fretter say at any of course disobedience of War Office regula time that he had never known of any regulations. And undoubtedly if his act does not tions forbidding the receipt of money -Fret fall under the specific provisions of section 23 ter told me he had never seen that book.
it comes under section 40 as a disobedience Did he not say that he never knew of any of the regulation. I submit in the first place regulations forbidding the receipt of money P that section 23 refers to a particular class of I think he did.
persons of which Sergeant Fretter is not one. He is not a person who, in respect of this par- ticular matter, has any command or authority whatever. The offence constituted by section 23 is when anyone having any command or authority either takes the "squeeze" out of anything or is directly interested in anything that is bought or sold in any place where he has command or authority. In this case, under the regulations, the manager of the canteen is a mere steward; he has no command or authority in any way in respect to this liquor, Section 4 describes him as a steward acting under authority. He has nothing to do with the selection of the brewers who are to supply, as the commanding officer alone makes the contracts. The Committee and sub-Committee give all orders as to the quantity and quality of the liquors to be sup- plied and they alone have the power to reject or accept.,. The clause points to a person who, having authority to order or to accept or reject, either insists upon a payment for the benefit of himself before he gives an order, or having the power of accepting or rejecting is himself interested in having the particular goods either accepted or rejected. I submit, therefore, that section 23 does not affect Sergeant Fretter, because, however much it may be said that, as a sergeant, he has com
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Re-examined by Lieutenant Stewart-With reference to the cheque for $150, did you receive the cash from the prisoner ?
Witness-Part of it.
Was the prisoner or you responsible for the canteen cash -I, as president.
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*** Are you responsible for any canteen money that may be in the canteen manager's hands ?— Yes.
As canteen president do you consider that the prisoner comes under Rule 4P-—Yes.
Is it usual for anybody taking over charge of the Regimental Institute. to make himself acquainted with the regulations ?-Certainly, Any person taking over a new duty should make himself acquainted with all pertaining to it.l
The Court then adjourned until the 25th May.
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25TH MAY. Herbert Grant Smith, who was the first witness on Saturday, was re-called.
The President said he would treat the witness as if he had not been called before.sony
The witness then repeated the evidence he gave on Saturday to the effect that, acting under instructions from Messrs. Holliday, Wise and Co., he handed the prisoner $75.50
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these regulations were ever put in force or acted upon, and that the former customs were con- tinued. The contracts for the supply signed in Gibraltar contained no stipulations as required by the regulations. Major Mills himself re- ceived a discount on the same day Sergeant Fretter was arrested and he stated no excep tional circumstances to justify his receipt of it, except that his predecessor in command had done the same. It is clear that the regulations were not put in force in the regiment with re- ference to the receipt or handling of moneys in the canteen. I recognise and admit that it is no justification for any man charged with an offence to allege that others have been guilty of similar offences, I am only calling attention to these facts to show that the provisions of this circular have never been put in orders or attempted to be put in force in this Regiment, whatever were the reasons, or these things could not possibly have gone on, I sub- mit, further, that even if Sergeant Fretter had by chance seen the regulations he could not, under the circumstances, have supposed that they were in force in the Regiment, as they have never been put in orders nor acted upon by anyone. I call attention to the fact, which will be stated by Sergeant Fretter, that the manager of the canteen was formerly a pensioner and that there was no one here from whom he took over the duties of canteen mana- ger. Considering his position, with a Commit- tes and a Sub-Committee over him, it was not for him to enquire what the duties were, but it was for his superiors to communicate to him in some way what those duties were, especially as they were embodied in regulations recently
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