REG. v. O'BRIEN AND OTHERS.

Pilcher, Charles Bartonsham House 1 Argyle-place, Barton- the revising barrister ought to be affirmed. The Henry

NISI PRIUS.]

REG. v. O'BRIEN AND OTHERS.

[NISI PRIUS.

and seventh, varying the property and offence of | ber last, in consequence of its being thought exbeing in possession, custody, and concealing. The prisoners having pleaded not guilty,

pedient, an Irish policeman was in Liverpool, and he and a Liverpool policeman of the name of Theakstone, in consequence of some information they The Hon. A. Liddell, Q. C. (J. A. Russell with received, went about four o'clock in the afternoon him) proceeded to state the case for the prosecu- of the 21st to a place called College-lane. In that tion. In this case the Treasury were the prosecutors, College-lane there was a warehouse, and under that and the charge against the four prisoners was founded warehouse there was a cellar, and the cellar and upon certain statutes creating the offence of being warehouse were in possession of a man of the in possession, without a certain excuse pointed name of Kavanagh, who would be called as a out in the statutes, of any stores of the nature witness, who would tell them that three weeks of arms or ordnance belonging to the Government, before the occurrence took place a man came to him and marked with the Government marks. By the and hired his cellar, and told him that he wanted Act 9 & 10 Will. 3, s. 41, an Act for the better pre- it for the purpose of putting iron and gas fittings venting the embezzlement of stores of war, it was in, and paid him three weeks in advance. On the an offence to make stores of war except as a afternoon of the 21st that man was seen by contractor for Government, and such person or Kavanagh, and the prisoners in his company persons in whose custody, possession, or keeping were seen by the policemen, to be engaged in the such goods or stores were found, or who should act of removing certain closed boxes from out of conceal such goods or stores marked as aforesaid, that cellar into a cart, and it would be shown to and not being able to account for such concealment, them that Campbell, Carey, and Keeley were or for having such goods in their possession, were liable actually seen lifting one of the cases into the to forfeit such goods with 2007. of penalty and the cart, while the other man and the prisoner costs of the prosecution, and also suffer imprison- O'Brien were standing close by the cart. Five ment till payment was made. It was also provided cases were put into the cart-which was an that, when there was a sale of old arms or stores, ordinary Liverpool one, belonging to a man of the whoever had bought them and got possession of the name of Shaw-and then the cart was driven up same would not incur a penalty upon producing a Paradise-street, Whitechapel, and Byrom-street, to certificate from the proper officers that they had the corner of a street called Chaucer-street, and bought such goods. That statute was given a there the three men, Campbell, Carey, and Keeley, wider operation by a subsequent statute, 15 Geo. 3, stopped, but O'Brien went on with the cart. Shortly c. 127, s. 2, which provided that the several Acts after he was seen to come back and join the other upon the subject should extend and should be con- three, and then the cart was driven to the corner strued to extend to all public stores whatsoever. of Grosvenor-street and Rose-place, where it The Government arms and stores were marked with stopped for about twenty minutes, the officers the crown and the broad arrow, and the Act said it all the time having it in their eye. When it had was an offence for every person not authorised by stood about twenty minutes, Campbell and Carey the proper officer in that behalf so to do to use any came up with the other man who took the cellar, such marks, or make goods marked with such and said something to the carter, and then immemarks, or any of them, or for the person who shall diately the officer came up and seized Campbell and wilfully and knowingly have in his custody, posses- Carey. Carey got away, but he was pursued and sion, or keeping, public stores so marked, or who eventually secured and taken into custody. When shall conceal any public stores so marked, unless Campbell was taken he said, "I have only been a such person shall on his trial produce a certificate. day in Liverpool, and if I could have got a boat These being substantially the statutes, what they to Glasgow, I should not have come to Liverpool." charged these men with was first, with having That, he believed, was true, because a witness been found in custody, possession, or keeping of cerwould be called to tell them that Campbell was in tain Government rifles, which they had no business Ireland on the 20th, this being the 21st. When to have; second, with wilfully and knowingly taken to the police-office he was searched, and upon receiving Government rifles which they had no him were found certain papers which would be probusiness to receive; and third, with concealing duced before them. On one of them, signed Government arms without excuse. That was sub-"J. M.," it was written how he should communicate stantially the charge, and the facts of the case were with him through a wall by rapping once for A, very short and very simple, and would take a short twice for B, thrice for C, four times for D, and so portion of their time to inquire into. Before going on. It stated that he could spell anything he on to tell them the facts, he would make one obser- wanted to know, and instructed him to rap easy so vation in passing, that they would find that this as not to be found out. He might rap on his bedcase was one of most serious national moment, post with his knuckles, and for Dublin, for example, because, whatever may be the result as regarded the he would rap four for D, twenty-one for U, two for B, prisoners who were charged with the offence, there twelve for L, nine for I, and fourteen for N, the raps was one thing which would unquestionably be made being 4, 21, 2, 12, 9, and 14, for Dublin, and for manifest to them and to all the world, and that was, Belfast 2, 5, 12, 6, 1, 19, 20. The document went that the disaffection which they would, he was sure on to say that, there being only twenty-six letters heartily hope, should be confined to the other side in the alphabet, it was easy to spell anything they of the water, had spread into certain volunteer wanted. The writer said he would not put his name regiments in this country, and that they would find to it for fear it should be found out, and then added in the course of the inquiry that rifles which had been that he had not seen the "director" on the previous served out in the regiments of London and Surrey-day, though he had done his best to see him. A great many to parties with Irish names--for the purpose letter was also found upon Campbell from James of using them in the service of their country, and M'Grogan, plumber, Antrim, saying that, though he in the regiment as volunteers, had been parted with was afraid there would be something against him, by those men to serve some other purpose-what he was as innocent as a vestal virgin. Carey was purpose would be for their consideration when they secured, the learned counsel went on to say, by had heard the facts of the case. He thought that another constable, named Fox, and upon him were this was the thing to which the attention of the found certain articles which he would produce to country should be called in order that the custody show that he had been in Ireland shortly before. of volunteer arms should be scrupulously looked to. O'Brien was seen the same night near to a publicIn regard to the facts they were these: In Septem-house kept by a name named Gibbons, in Richmond

NISI PRIUS.]

REG. v. FOULGER.

[MARLBOROUGH-STREET.

M. SMITH, J. ruled that there should be some evidence that the prisoners knew that they were Government stores, and marked in the way described in the indictment, i.e., with B. O., V. R., or the broad arrow, or the Crown, or regimental marks. At present there was no evidence of this.

There being no other evidence, his Lordship afterwards, in directing the jury, said it was merely a question if the prisoners had arms in their possession or keeping, and knew they belonged to Government, and had Government marks. Had they been indicted for having these arms, intending to use them for an unlawful purpose, other considerations might have arisen; but this was not the case here. All the prisoners were acquitted.

row, and accounted for himself as a mechanic living | having also addressed his Lordship as to the scienter, in Plumbe-street. He was asked if he had been at and Liddell, Q. C. having replied, work that day, and he said "No," and afterwards, when charged with having been present at the removal, he said a man employed him to assist, and he did so because he got a shilling for the job. He asked them who they were, and they replied "Police-officers," and then O'Brien refused to answer any more questions. Keeley was taken the same evening at Gibbons's public-house, and would be sworn to as having been acting in company and concert with the others. He said that he lived at 101, Christian-street, and made a statement that he had been engaged by a man to assist in the work for which he was paid. The cases were afterwards examined, and in two of them were found forty-seven rifles and thirty-eight bayonets, which would be proved to belong to the 28th and 46th Regiments of Rifle Volunteers, which he believed to be Irish regiments in London, and to the 3rd Surrey. They were nearly all Government weapons, and had the Government marks upon them. In the other three cases there were some thirty cans of phosphorus, which was a material, he need hardly say, of a highly inflammable character. The question was, whether, upon these facts, the jury had any doubt that these men were in possession of these arms, and unless they could MARLBOROUGH-STREET POLICE COURT. produce a certificate to show that they were the servants of some contractor, or contractors themselves, that would bring them under the section of the Act. It was primâ facie evidence on behalf of the prosecution that the arms were in their possession, and it was for them to show some excuse. He would contend that there was sufficient evi

The Solicitors for the Treasury for the prosecution.
J. Cobb, attorney for the prisoners.

MAGISTRATES' COURTS.

Saturday, Jan. 5, 1867.

(Before Mr. Knox.)

REG. v. FOULGER.
Public-houses Closing Act.

dence in the case to justify the jury in finding that The provisions of sect. 13 of 25 Vict. c. 22, empower

some or that all of these men knew what was in these cases, and could not have been in innocent possession of them. They could not dive into men's minds to see if they knew, but must judge of their intentions and motives by their conduct, the same as in any other case.

Evidence having been given in support of the above; at its conclusion

Pope (for the prisoners O'Brien and Campbell) contended that the rifles in question were not Government stores within the meaning of the Act, as it was provided by the Volunteer Act (26 & 27 Vict. c. 65) that the money or effects of a corps or regiment should be vested in the commanding | officer for the time being, and could not be regarded as the property of Her Majesty, as such officer was responsible for them; and if a man made away with or refused to deliver up any article, he could prosecute and recover its value with costs. Knowledge was necessary to form part of the crime, and he submitted that there was no evidence to go to the jury of knowledge on the part of the prisoners that these were Government stores :

R. v. Sleep, 1 Leigh & Cave, 44; R. v. Wilmott, 3 Cox C. C. 281, were referred to. These supported the proposition that the charge could not be sustained if there was not sufficient evidence to show that the prisoners knew that the stores were so marked, even though they had reasonable means of knowledge. There must be specific and special knowledge, and there was not a shred of evidence that any one of the prisoners knew that the cases contained such stores, for they were closed and nailed down, and never opened till they got to the police-station. Further, there was no evidence to show that they had anything to do with the concealment in any way, and there must be such evidence as to possession as to amount to a control over the goods themselves.

Tidswell (for the prisoners Carey and Keeley),

ing the Commissioners of Inland Revenue, with the consent of two justices, to authorise any officer of Excise to grant to any duly licensed innkeeper an occasional licence, amended by 26 & 27 Vict., are not repealed or affected by the provisions of 27 & 28 Vict. c. 64, ss. 5 and 7, which prohibit the sale of liquors between the hours of one and four in the morning; and therefore an innkeeper, having an occasional licence from the Excise, is not liable to a penalty for not closing at one o'clock under the provisions of the Public-houses Closing Acts..

The deft. appeared to answer an information for unlawfully selling and exposing for sale at the Hanover-square Rooms, on the occasion of a public ball being held there, refreshments within the hours of one and four o'clock in the morning. Lewis for the deft.

Mr. Knox delivered the following judgment:This is a summons taken out by Mr. Superintendent Hannant, at the instance of the Chief Commissioner of Police, against Robert Foulger, for an infringement of the 5th and 7th sections of the 27 & 28 Vict. c. 64, commonly known as the Public-houses Closing Act of 1864. The offence specified is, that on the morning of the 14th Dec. the deft. supplied and sold refreshments at a ball given at the Hanoversquare Rooms, within the prohibited hours of one and four a.m. without having obtained what is termed in the 7th section of the Public-houses Closing Act an "occasional licence" from the local authorities, which, in the metropolitan police district, is no doubt the Chief Commissioner of Police. The facts proved may be taken as follows:-The deft., having obtained, for the purpose above named, from the Commissioners of Inland Revenue, with the consent of a justice, an occasional licence under another Act of Parliament, of which I shall speak presently, applied to the Chief Commissioner of Police on the 13th Dec. for another licence also, called an "occasional licence," under

MARLBOROUGH-STREET.]

REG. v. FOULGER.

[MARLBOROUGH-STREET.

absence of such words, and this is really the important point, I ask myself what was the object of the later Act as expressed in the preamble? I find it is this-" Whereas it is expedient to amend the law" relating to what? Relating to the closing of public-houses and refreshment-houses within the metropolitan district. The 5th section should, I think, read on with the preamble. It goes on, no licensed victualler shall do such and such acts. But where? One should naturally suppose upon the premises wherein he carries on his usual business. The words " room, garden, or other place" I understand to mean room in such premises; garden as a tea-garden attached to such premises, or other similar place. The ejusdem generis rule of construction should here apply. How, again, can it be said that a deft. opens or keeps open premises which are not his own, and over which he has no control? The first clause of the 5th section applies to licensed victuallers, the second to refreshmenthouse keepers. As though to make assurance surer still, the framers of the Act are very careful to state in terms that it is within the refreshment-house itself that refreshment shall not be sold or supplied for sale. Are the licensed victuallers and the refreshment-house keepers to be placed in different predicaments? I think not. We may travel back as well as forwards in order to arrive at the sense of the statute. Now, surely, here are two objects very different in kind. The framers of the earlier Act seem to have thought that it was for the public convenience that licensed victuallers should be empowered to supply refreshments occasionally at public balls off their own premises. They have provided a machinery for the public protection in the person of the Inland Revenue Commissioners and a justice of the peace. A year later the Legislature arrived at the conclusion that it was advisable that public-houses and refreshment-houses should be closed within certain hours, but yet not so stringently but that an occasional dispensation should be granted to keep such houses open within the prohibited hours. The power of granting such dispensation within the metropolitan police district has been placed in the hands of the Chief Commissioner of Police; nothing more. I cannot but think, then, that if it had been the intention of Parliament to oust the Excise authorities and the justice of the peace of their jurisdiction, we should have found mention of such intention in the later Act. There is no inconsistency in reading the Acts of Parliament in this sense. The Legislature appears to have considered in the first instance that it was for the public convenience that a licensed victualler should be allowed to supply refreshments at a public dinner or ball, and has provided machinery for carrying this subject into effect. A year later, after enacting that within certain localities all publichouses and refreshment-houses should be closed between the hours of one and four a.m., it again supposed that the stringency of the regulation might be occasionally relaxed, and again provided a suitable machinery for that purpose also. The objects are distinct, the Acts of Parliament are distinct, the machinery is distinct, and, as I believe the authorities are independent, the summons must be dismissed.

the Public-houses Closing Act, which he then | I should expect to find in the later Act some words appears to have thought necessary. The Chief of repeal or modification. I find none. In the Commissioner refused to grant his request. The deft. persisted notwithstanding. I may state at once that I hold it proved that, at the time and place named, the deft., under the protection of an occasional licence from the Inland Revenue Commissioners, and without an occasional licence from the Commissioner of Police, did actually supply and sell refreshments within the hours prohibited by the Public-houses Closing Act. The difficulty is one not of fact, but of law. Now let us examine what the law was upon this point until the 25th July 1864, when the Public-houses Closing Act was passed, and then see if any modifications, and, if any, what, have been introduced by the late Act. By the 13th section of the 25 Vict. c. 22 power was given to the Commissioners of Inland Revenue, with the consent in writing of two justices of the peace, to authorise any officer of Excise to grant to any person who should be duly authorised to keep a common inn or alehouse or victualling house, and who should have taken out the proper Excise licences for beer, wines, spirits, or tobacco, an occasional licence empowering him to sell the like articles at another place, to be named in the licence, and for a space of time not exceeding three consecutive days at one time. Certain restrictions as to days and hours are given in this section, with which we are not concerned, inasmuch as in a subsequent Act (26 & 27 Vict, which was an amending Act) we find the following provision with regard to the occasional licence now under discussion: "Upon the occasion of any public dinner or ball it shall be lawful for the person who shall have obtained an occasional licence under the provisions of the 25 Vict. c. 22, to sell the said liquors during such hours before or after sunrise or sunset, as shall be allowed and specified on that behalf in the consent to be given by the justice of the peace to the granting of such occasional licence." It will be remarked that "the consent of the justice" is substituted for "the consent of two justices." Thus, then, after the 25th July 1863, the deft. being a licensed victualler, armed with the proper licences, might have obtained an occasional licence from the Excise, with the consent of one justice, and done all the acts attributed to him in the present summons without infringing the law. So matters stood until July 1864, when the Public-houses Closing Act was passed. Now, in the 5th section of that Act it is provided, that no licensed victualler within the limits of the Act shall sell, or expose for sale, or open, or keep open, any house, room, garden, or other place for the sale or consumption of excisable liquors, or any other articles whatsoever, between the hours of one and four o'clock in the morning. But by the 7th section power is given to the local authority (in this instance the Chief Commissioner of Police) to grant to the licensed victualler or refreshment-house keeper an occasional licence for an especial occasion, which would hold him free for acts done within the prohibited hours. The question, then, really is this -must the 5th and 7th sections of the Act under discussion be read together with the sections of the two first Acts named, so that the consent or indorsement, as it were, of the Chief Commissioner of Police must be superadded to the consent of the Excise authorities, and of the one justice of the peace, before a licensed victualler or refreshmenthouse keeper can supply refreshments off his premises at a public ball within the hours prohibited in the Public-houses Closing Act? In the first place, I would remark that, had it been the intention of the Legislature to give a power to the Commissioner of Police which should practically override the power given to the Inland Revenue Commissioners and to a justice of the peace but one section before,

NORWICH.] FUNERAL FUND FRIENDLY SOCIETY v. JOHN CLARK-Re JOHN GREEN. [EAST HARLING.

Reeve submitted that the Norwich justices had no jurisdiction to hear the complaint, and referred to sect. 5 of 21 & 22 Vict. c. 101, as the place of busi-justices had not the consequences of a conviction ness of the society was at Nottingham.