October 16, 1909.]
And that your advertisement never appeared in the China Mail ?--No.
A clerk from the Magistracy produced the minute book of the Justices wherein the applica- tion of plaintiff for the licence was objected to by the Captain Superintendent of Police. A further minute stated that the applicant did not appear
and his name was struck out.
William Winch stated that he was approach ed on August 31 with reference to putting in - an application for the licence of the Belle View Hotel. The condition was that if plaintiff's application was ruccessful the agreement with witness would be null and void.
Defendant gave corroborative evidence. His Lordship gave judgment for defendant and said he was sorry for the plaintiff who had drawn an mistaken inference when he saw the advertisement.
THE CAFE WEISMANN PROSECUTION,
ALLEGED SALE OF LIQUOR WITHOUT FOOD.
The hearing of the charge against R. Eckhardt, manager of the Café Weismann, of selling liquor without food under an adjunct licence, was continued before Mr. J. R. Wood at the Magistracy on Tuesday.
Detective-Sergeant Sullivan prosecuted, and Mr. Eldon Potter, instructed by Mr. Crowther Smith (of Messrs. Almada and Smith) appeared for the defence.
P.C. McKelvie testified to visiting Weis- mann's on October 1st with P. C. Spillett, who called for two large O. B. beers. A Chinese boy said they had no O.B., and asked if they would have Pilsener. They agreed, and the boy provided the drinks, at the same time putting two plates and two forks on the table. After- wards he removed the plates and forks, and placed a plate of sandwiches оп the table. Neither the witness nor Constable Spillett ordered sandwiches, and neither ate any. Some eight or ten minutes later Sergeant Sullivan entered, and Constable Spil. lett invited him to have a drink. The same boy approached the table at which they were sitting, and said he could not supply drinks without supplying food. The boy did not say this on the first occasion. Sergeant Sullivan declined to have a drink, saying that he did not want any food. Constable, Spillett than called for two more Pilseners, which were brought by the same boy.
His Worship - Thep I understand that you two constables consumed two bottles of heer each ?
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CHINA OVERLAND TRADE REPORT.
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Witness-Yes, your Worship. Proceeding, the witness stated that after this Constable Spillett called for the bill, which was brought, and on it they charged for four glasses of beer and four sandwiches. Constable Spillett asked why he should pay for sandwiches whan he did not order them, and sent for the manager, who said that he expected the boy to plain to them that they could not have drink without food, and that probably they did not understand the boy's "pidjin" English. Con- stable Spillett, still protesting, paid the bill, and when the change was brought there was found to be an error of forty cents, which the defendant rectified.
ex-
His Worship Did the Sergeant tell Con- stable Spillett not to pay for the sandwiches?
Witness-He advised him not to.
You are quite clear that nothing but beer was called for ?.. Quite.
Cross-examined by Mr. Potter :
You went into Weismann's on detective duty, did you not ?--I went in on an order from the police sergeant.
You went in to see if you could get drink without food?—Yes.
And if food was supplied to you, you knew that you had no case?-Personally I did not.
You did not know it was important that food should be supplied?-My instructions were to go to Weismann's, order a drink, and see what happened.
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against Weismann's ?--It was really a rough | his bill, there was a purchase of food by guess.
that constable. The money was tendered, the Didn't it suggest to you that food was of bill was paid, the purchase was cqm- importance P-P. C.41 and myself hall a con-pleted, and Constable Spillett was now the versation and put two and two together. He happy owner of six sandwiches, which he felt said there must be something about food and sure Messrs. Weismann would be glad to give drink. I knew nothing about licences at the him at any time he called for them. The case time.
must fall to the ground. The bill included two lots of beer and sandwiches, the constable paid the bill, and therefore the defendants had not
When you entered Weismanu's, what was on the table?—Nothing.
I put it to you that there were two plates Pinfringed the Ordinance. His next point was No.
Do you understand “pidjin” English ?—No, Do you think you would have understood the boy if he asked you to have cakes or sandwiches in " pidjin English? I'd have known what sandwiches meant.
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What is the word for sandwiches ?-Witness was understood to say "sandwhiches.
Now can you understand “pidjin” English ?--- I could not pass an examination in it.
Bearing in mind that the question of food was important, what did you think when you saw plates and forks come ?--I thought it peculiar.
Did you say, "By Jove, our case is all up? -I did not say anything.
Did he bring the beer at the same time as the sandwiches?—The sandwiches arrived at the same time as the beer.
Now just think, were not the sandwiches placed on the table before the beer was brought ?
No.
You are quite satisfied with that statement, are you?—I have sworn it.
But is that your opinion ?--I am not here to state my opinion; I am stating facts.
Did either of you say anything when the sandwiches were placed on the table ?--No remarks were made.
What did you think the sandwiches were put on the table for ?—In most public bars you get
a snack."
So you came to the conclusion that the sand- wiches were placed there to eat ?—Yes, sand- wiches are for that purpose.
But fearing that you might injure your case by eating the sandwiches you carefully refrained?
I had already had dinner.
Did you think that Weismann's had broken the licensing law at that time P-I have already told you that personally I had no interest in the
case.
What were your thoughts about it when the plate of sandwiches was placed before you ?—I have already answered that question.
But what did you think about the case you were going to bring against Weismann's?-It was up to the sergeant to prove that.
When the sergeant came to your table you had another try to make Weismann's break the Licensing Law No, P.C. Spillett called for two drinks afterwards.
Did he call for three P- No. The sandwiches were paid for, were they not? -Yes,
Did it not strike you as peculiar to go into a restaurant and pay for what you had not ordered ?--I did not pay.
And you did not give Constable Spillett any friendly advice as to paying for what he had not ordered?-He can pay for what he likes with his own money. I did not know what was in his mind.
or
that the summons must stand or fall according to the meaning of the section under which the charge was brought, The defendants were charged with a breach of the terms conditions of their licence. As pre- viously pointed out to his Worship, the terms and. conditions were set on the transfer licence, and it was not suggested by the pro- secution that there had been any breach of those terms. The moment the present licencee got a transfer, the original licence was wiped out.
His Worship-Do you claim under that licence that he will have all the rights of a public bar?
Mr. Potter-I only claim the rights I get by it.
His Worship-Do you contend that that licence gives the licencee the right to run a public bar?
Mr. Potter-I am not contending that be- cause I don't need to.
His Worship-But you are prepared to con. tend it if necessary?
Mr. Potter-I think the wording is very clear.
His Worship-And in your view it might cover a public bar?
Mr. Potter-It might, but I am not contend- ing now that we have the right to use our place as a public bar, because it is not necessary to my argument.
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that
or
Proceeding, Mr. Potter said that his clients were charged with breach of the terms or conditions of their licence. He would ask what terms and conditions had been a matter of fact, if broken, because, as the licence produced was theirs, they had not broken
any term
condition. It was quite obvious
the licence produced was the only one in existence. It was a new licence, inasmuch as it took the place of the licence owned by the person from whom the transfer came to the present licences. It was quite obvious that the transfer took the place of the original licence, and the original licence was now non-existent. The transfer was a contract with the Government so far as his clients were concerned. The Government, in consideration of so many dollars, licensed them to sell beers and spirits, and said, "Here is your authority." Therefore the police could uot come along and say that the other contract with another man was in existence, and that
they were going to bind the defendants to those terms, He contended that the prosecution must stand or fall by the licence before the Court. The third point was that, even supposing they had sold drink without food, and assuming for the sake of argument that they were actually guilty of selling drink without food, that would contend that the Court could not convict was to say, that the boy did so, then he
liable for an act of the boy unless it could be the manager. He could not be made criminally proved that the manager allowed the thing to be done. If a manager or licencee took all reasonable precautions the Court could not find His Worship-That is a supposition Mr. Potter-It is so difficult to get a supposi-him guilty. Mr. Potter quoted authorities in tion out of him.
Did you think it peculiar for Constable Spillett to pay for the sandwiches ?—Yes, but I daresay if he had had small change he would have paid for the beer alone.
Then you do know something about Constable Spillett's mind?
Witness-I am here to state facts; not suppositions.
Mr. Potter-Are you stating facts now ? Witness-I will put that to you as supposition.
Mr. Potter-I am pleased with the suggestion. Counsel then informed his Worship that the Ordinance gave
no definition of ад adjunct licence, but he supposed that what it meant was that a person could sell liquor in addition to the commodity that he was already selling. Therefore, it followed in this instance that if there was a sale of food there could not possibly be a conviction. He did not Didn't you know that if you had been sup-
care whether there was a protest or not on the plied with food you would have had no case part of the constable. Once he had paid
What were you told about food?--I was told not to order food, but to order a drink, and if food was suggested to make a note of it.
support of his contention, and stated that he raised these points first, because if any one was decided in his favour there would be no neces- sity for him to call witnesses. One of his strong points was the fact that there was an absolute sale of food, and if his Worship was DOW the owner asked himself who of the sandwiches, there could only be one answer-the purchaser. There was nothing in any of the Acts which said that the beer must be put on the table after the food, or that the food must be put on the table before the beer; the whole thing was one transaction. Even if the constable did not mention the word food, Counsel submitted that Weismanns' absolutely entitled to place it on the table, and to decline beer unless it was taken. Otherwise
were
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