SCOTT 1. PILLINER. 1904. Local govern in newspaper -Frequenting public streets for sale unreasonable because it would punish a person who goes into a railway carriage to sell the paper; but it would not apply in that case, as such a person could not be said to frequent the carriage for that purpose, nor could it apply to the giving of probable results of competitive examinations, as has been contended [Lord ALVERSTONE, C.J.-Does not this by-law go too ment-By-law far, and is it not too wide? It would really hit a poor lad -Validitywho gets his living by selling papers in the street, although he Racing tips has nothing to do with betting.] It is necessary to deal with the person who sells, and if he is a mere lad that can be dealt with by the magistrates, and is a question for them. If it is legitimate to prevent by a by-law betting in the street-and Thomas v. Sutters (ubi sup.) has decided that a by-law for that purpose is good-then it must also be admissible by such a governmentMunicipal by-law as the present to prohibit that which is ancillary to Corporations street betting-namely, the sale of racing tips. All the Act, 1882 suggested difficulties are removed by the use of the words (45 & 46 Vict. frequenting and using," and so long as the words "frequenting c. 50), s. 23. and using" are properly interpreted no hardship can arise. Reliance is placed on the use of these words in the by-law, as well as on the words "devoted wholly or mainly," though the latter is a question of fact entirely for the justices. 66 Danckwerts, K.C. in reply. PHILLIMORE, J.-Although the power to make by-laws for good rule and government were formerly possessed only by municipal corporations under the Municipal Corporations Act, that power has now been extended by Parliament to county councils, who are now authorised to make by-laws for the good rule and government of their counties. Therefore, if county councils think that additional by-laws are necessary for the good rule and government of their counties, I am strongly of opinion that this Court ought to be very slow in interfering without good cause with such by-laws as the council may frame for that purpose. Dealing with the by-law in the present case, it seems to me that it is a reasonable by-law-at all events that it is not an unreasonable one-and therefore, in my judgment, it ought to be supported. KENNEDY, J.—I regret to have to come to a different conclusion. The by-law is framed for the purpose of preventing a person frequenting and using any street or other public place for the purpose of selling any paper which is devoted wholly or mainly to giving information as to the probable results of races, and so on. Whether such a by-law as that is ultra vires or not has to be determined on legal principles, apart altogether from the question whether such a by-law is desirable. The case finds that the conviction was for frequenting and using a street and there selling and distributing a newspaper devoted wholly or mainly to giving information as to the probable result of races, steeplechases, and other competitions. It cannot be disputed that such information may be given without infringing the law. paperProhibition -Good v. 1904. Local govern. SCOTT It is information of a legal kind, and information which to PILLINER. many persons is harmless, and I should be slow to think that it is a reasonable thing to prevent the sale in this way of a paper which contains information in itself legal, and to most persons harmless, merely because such information may induce some ment-By-law persons to make bets. The question is whether this by-law is Validity reasonable, and not whether betting is desirable or undesirable. Racing tips While entirely agreeing with the view that the greatest possible -Frequenting liberty should be given to these bodies who are authorised to public streets make by-laws, yet I have come to the conclusion that the by-law for sale of now in question is not a reasonable by-law, and that it ought not to be supported. in newspaper paperProhibition Corporations -Good Lord ALVERSTONE, C.J.-I come with reluctance to the congovernment clusion that this by-law cannot be supported. I entirely agree Municipal with the principle that the by-laws made by public bodies for Act, 1882 the good rule and government of their districts ought not to (4545 Vict. be interfered with if they can be supported on legal grounds; c. 50), 8. 23. and I hope I may not be taken as saying that the local authority may not make a proper and valid by-law for the purpose of dealing with the mischief aimed at by this by-law. It is necessary that by-laws should be clear and definite as to the mischief they are aimed at and intended to prevent, and that they should not make unlawful things which are otherwise lawful. One main objection to this by-law is that it includes the case of a sale of a newspaper which is not in aid of street betting. If it were entirely confined to the prevention of street betting it would, no doubt, be a good by-law; but it is too wide, as it brings within its purview a sale by a newspaper vendor which may not tend to street betting. It therefore does bring within its ambit perfectly innocent sales which could not be regarded as sales leading to betting. Moreover, it renders it uncertain what a person may sell on the street or may not sell. But merely on the ground that it includes perfectly innocent sales which have nothing to do with betting, with reluctance I come to the conclusion that this by-law cannot be supported. Appeal allowed. Solicitors for the appellant, Judge and Priestley, for Philip Baker and Co., Birmingham. Solicitor for the respondent, H. M. Davis, for Hand and Co., Stafford. CROWN CASES RESERVED. Friday, Nov. 18, 1904. (Before Lord ALVERSTONE, C.J., LAWRANCE, KENNEDY, REX v. BRIDGWATER. (a) Practice-Evidence-Prisoner's evidence-Cross-examination as to character-Nature and conduct of the defence-Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 1. A prisoner, by denying the truth of the evidence given by the witnesses for the prosecution, does not make an imputation on the character of the witnesses for the prosecution within the meaning of the Criminal Evidence Act, 1898, s. 1. Neither is setting up a defence which is inconsistent with the truth of the statements made by the witnesses for the prosecution setting up a defence the nature and conduct of which is such as to involve imputations on the character of the witnesses for the prosecution so as to make the prisoner liable to cross-examination as to character. CASE ASE stated by the Recorder of Birmingham. The prisoner Bridgwater was charged with stealing a quantity of copper wire. The wire was found by the police in a perambulator, wheeled by the prisoner's wife, close to the warehouse from which it had been stolen, the prisoner being with his wife at the time. It appeared from the facts stated that the prisoner, who was a dealer in metal, had from time to time given information to the police with regard to robberies of metal, and that, on being charged at the police-station with stealing the copper wire in question, he had stated that he was acting under the instructions of a certain Detective-sergeant Moss. At the trial the detective-sergeant gave evidence, and contradicted the prisoner's statement. The prisoner, in giving evidence in his own behalf, repeated the statement as to his employment by the police with details. Counsel for the crown then proceeded to cross-examine the prisoner, and in cross-examination asked him whether he had not been previously convicted. The counsel for the defence did not object to this question, but, on counsel for the Crown cross-examining as to the details of the convictions, objected, as the whole cross-examination was (a) Reported by A. A. BETHUNE, Esq., Barrister-at-Law, REX υ. BRIDGWATER 1904. Practice Evidence contrary to the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 1 (b). Counsel for the Crown contended that the crossexamination was permissible on the ground that the prisoner by his evidence had made imputations on the character of the detective-sergeant. The learned Recorder permitted the cross-examination on the Cross-exami- ground that the nature and conduct of the defence was such as nation of to involve imputations on the detective-sergeant. prisonerCharacter Imputations The jury convicted Bridgwater. The question for the opinion of the Court was whether under on witnesses the circumstances of the case counsel for the Crown was entitled for prosecu to put to Bridgwater questions relating to his previous tion-Denial of truth of convictions. evidence Defence incon sistent with of witness Criminal Evidence Act, s. 1. No counsel appeared. Lord ALVERSTONE, C.J.-We think that the objection taken truthfulness in this case must be held to be valid, and that the conviction is therefore bad. We have to consider whether the circumstances of the case were such as to justify the counsel for the prosecution 1898 (61 & 62 questioning the prisoner as to previous convictions. The section Vict. c. 36), says that when a person charged is called as a witness in pursuance of the Act, he shall not be asked, and if asked shall not be required to answer, any question tending to show that he has been convicted of any other offence unless (inter alia) the nature and conduct of the defence has been such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution. I must repeat what I have said beforenamely, that raising a defence, even in forcible language, is not of necessity casting imputations on the character of the prosecutor or his witnesses. Of course, imputations may be cast on their character quite independently of the defence raised, either by direct evidence or by questions put to them in cross-examination. In this case it cannot be said that the recorder regarded what happened in the case as other than raising the defence. His direction to the jury shows that he dealt with the case on that view. He says: "I directed the jury that if they thought the prisoner was in point of fact acting under the directions of Moss, or had reasonable grounds for believing he was acting under the directions of Moss, they should acquit him." He therefore acted on the view that the defence raised was not such as to cast an imputation on Moss. It seems to me that, on the whole statement of what the prisoner's counsel was endeavouring to elicit from Moss, he was not doing more than developing his defence that the prisoner was acting under Moss' directions, and seeking to substantiate that defence by means of admissions from Moss. If the questions put to Moss had involved the imputation that he was guilty of misconduct independently of the defence, or of the necessity for developing the defence different considerations might arise, for the questions might then perhaps be construed as an attack on the prosecutor's general character. In this REX v. BRIDGWATER. 1904. prisoner Character case the question as to whether the prisoner had been convicted was answered without any objection from the prisoner's counsel, and he only objected to the further question as to the nature of the offence. It must not be thought that because counsel for a prisoner allows a question as to previous conviction. Practiceto be put, he can afterwards impugn the conviction on the Evidenceground of the inadmissibility of such a question. He cannot Cross-exami stand aside and allow an improper question to be put and after- nation of wards rely upon that question as a ground for quashing the conviction. In this case, and under the circumstances, if the Imputations learned Recorder had told the jury that they were to disregard on witnesses the prisoner's answer as to his having been previously convicted, tion-Denial for prosecuthis Court would not, I think, have been inclined to interfere. of truth of But the Recorder did not do anything of the kind, and therefore it was made to appear to the jury that the question was justified under the Act, because, in the words of the section, the nature or conduct of the defence was such as to involve of witness— imputations on the character of the prosecutor or the witnesses Evidence Act, for the prosecution. We can see no ground for any such 1898 (61 & 62 suggestion, and think, therefore, the question ought not to have Vict. c. 36), been put; and as it was put, and the jury were not cautioned to disregard the answer, the conviction cannot stand and must be quashed. LAWRANCE, KENNEDY, RIDLEY, and CHANNELL, JJ. concurred. No solicitors were instructed. Conviction quashed. evidence Defence inconsistent with truthfulness Criminal 8. 1. CROWN CASES RESERVED. Friday, Nov. 18, 1901. (Before Lord ALVERSTONE, C.J., LAWRANCE, KENNEDY, REX v. HALE. (a) Practice-Evidence-Cruelty to children-Presence of child at trial-When necessary-57 & 58 Vict. c. 41, s. 16. (b) By sect. 16 of the Prevention of Cruelty to Children Act, 1894, it is provided that where in any proceedings with relation to an (a) Reported by A. A. BETHUNE, Esq., Barrister-at-Law. (b) The Prevention of Cruelty to Children Act, 1894, is repealed by the Prevention of Cruelty to Children Act, 1898; but sect. 16 is re-enacted by sect. 16 of the later Act. |