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Colonial Cases

R. v. Davey, 1888

[smoking in theatre - resisting police]

R. v. Davey

Police Court, Shanghai
Hall AAJ, 30 October 1888
Source: North China Herald, 2 November 1888

Shanghai, 30th October, 1888
Before J. C. Hall, Esq., Acting Assistant Judge.
  Today in H.B.M.'s Police Court, before J. C. Hall. Esq., Acting Assistant Judge, a case of considerable public interest was heard. Affecting the right of smokers to annoy the rest of the audience and risk the lives of hundreds by smoking in the theatre.  Wm. Davey, the defendant, described as a sailor and mariner, appeared on a summons to answer a charge of resisting Police Constable Lee. 23, and obstructing him in the execution of his duty in the Lyceum Theatre on the night of the 23rd inst.
  Mr. Browett appeared for the defendant, who denied the charge.
  Inspector Cameron conducted the case on behalf of the police, against whom there was a cross-summons for assaulting the defendant.
  The Constable was sworn and deposed - On Tuesday might last I was on duty at the Theatre.  At 10.30, during the intervals, the defendant came upstairs to the gallery smoking a cigar.  He gave me his check and went on to take his seat.  I told him no smoking was allowed.  He took no notice, and I repeated what I had said.  He turned and came back and asked me by whose orders smoking was prohibited.  I told him these were my orders, and that I was to prohibit all smoking in the Theatre.  He said he had permission from Mr. Sherman to smoke in the Theatre, and I said that Mr. Sherman had not power to give him that permission, that Mr. Willard was the manager of the Company and had given orders to prevent all smoking.  I had also received orders from my superior officer to carry out Mr. Willard's instructions, and I told the defendant so.  But he said he would smoke, and I told him that if he did so he would have to leave the place.  He said he would not leave the place or desist from smoking either. I then said that if he continued to smoke I would put him out.  I took him by the collar to put him out and his cigar fell out of his mouth.
  He resisted and I drew my baton, and then Inspector Kluth came on the scene and told me to be quiet.  The defendant continued to keep up the disturbance with me saying what he would do with me if I was not in uniform, and if I could only come down and take my policeman's coat off, he would put my nose to one side.   Inspector Kluth then told me to go to the lower landing away from the defendant.  I went there and after a few moments came upstairs again when I met the defendant coming down.  He said, "This is a private affair between you and me, and if you are any sort of man come downstairs and take your coat off, and try if you are a better man than me," I told him that if he had any grievance he could report it at the Police Station, but he replied that he did not want to go to the Station, but would do so if I wanted him.  Inspector Kluth then came and called the defendant to the upper landing, and told me I had better go to the pit, and send Constable 35 up there, and I did so.
  Cross-examined by Mr. Browett - The defendant had a cigar in his mouth when he came upstairs.  I have orders from Mr. Willard to stop smoking, and I always did so.  Lately there has been no notice posted up in the theatre prohibiting smoking.  I have seen others smoking in the gallery and have always stopped them. I did not say to the defendant "put that cigar out of your mouth" nor did I knock it out of his mouth. It fell out.  There was no one present during the alleged conversation on the second landing. Defendant several times challenged me to fight.
  To His Worship - His language was so violent that I believed he would assault me.
  Inspector Kluth was sworn and said - I was in the theatre on the evening of the 23rd inst.  During the interval of the second and third acts I went up to the gallery and in turning to the right I saw several people smoking there, the constable came after me and requested then not to smoke.  They desisted, and I then went into the theatre.  I heard a noise outside and going out I saw the constable and the defendant having hold of each other.  I told the constable to let the prisoner alone and asked him why he interfered with the man.  He told me that he had told him several times not to smoke, and the defendant said "what does the constable known about the insurance company," or words to that effect.  I told him that the constable had his orders about people smoking in the theatre.  He said to the constable "take your coat off and come down."  I told the defendant that he was not there for that purpose, and if he thought himself offended or injured he could make his report to the proper quarters, but he still kept on asking the constable to come down and fight.  I then ordered the constable to go to the lower landing as a crowd of people were here and the performance was already going on.
  I went into the theatre and after a minute came out again and saw the defendant talking to the constable.  I heard the former make use of the words "now you get hold of me again and you will see the effect of the assault," or words to that effect. I called to the defendant to come upstairs and not make any more trouble, and after some persuasion he did so.  Not wanting any more trouble I changed the constable, sending up the officer from the pit.  That is all I have to say.
  Cross-examined by Mr. Browett - It was the constable's duty to see that no smoking went on in the theatre.  The instructions emanated from the Honorary Secretary of the Theatre Co., who communicated with the police office by which the constable was instructed to that effect.  I have seen people smoking in the theatre on former occasions and spoke to them myself, as well as reminding the constable what he was there for.
  To His Worship - It is the custom to prohibit smoking in the theatre, and notices to that effect were posted up before the theatre was done up.
  By Mr. Browett - I have never been at a smoking concert in the theatre.  Smoking concerts are express and explicit exceptions to the general rule as to the prohibition of smoking.
  Mr. John Gould was next sworn and said on the night in question he went to the back of the gallery with some friends and commenced to smoke, when Constable Lee came along and said, "Gentlemen, no smoking here."  I afterwards saw Inspector Kluth and asked him how long was it since smoking had been stopped.  He told me the insurance people had made complaints of smoking going on in the theatre.
  Cross-examined by Mr. Browett - I had smoked often in the back of the gallery before.  I knew nothing about its being prohibited.  To my knowledge I never saw a notice prohibiting it posted up.
  To Inspector Cameron - The constable spoke civilly and we put our cigars out.  I saw nothing of the altercation.
  To His Worship - I have smoked a cigarette at the back of the gallery before.
  Mr. Geo. R. Corner was sworn, and stated - I am the Honorary Secretary of the theatre, and wrote to Mr. Willard and Inspector Cameron asking them to put  a stop to smoking as it could not possibly be allowed (letter produced).  It has always been an understood thing that there should be no smoking on account of the risk of fire, and it is a mistake to say it was not understood.  With regard to the Smoking Concerts I have to get a special permission from the Insurance Co. to allow them, and even then the smoking is not allowed in the gallery.  The Smoking Concerts are private entertainments for the members of the Literary and Debating Society and their friends.
  Re-examined - It is particularly excepted on Smoking Concert nights that there is to be no smoking in the gallery.  I go to the agent of the Insurance Co. and say I want to have a Smoking Concert and get permission.  I have, I am sorry to say, seen people smoking in the gallery before and have always tried to stop them.  Smoking is not allowed at any decent theatre at home and why should we make an exception here?  I have given orders to have the notices posted up again, but many of the persons who go to the gallery cannot read.  The defendant was expressly told by the constable that smoking was not allowed.
  Wm. Davy, the defendant, deposed - On Tuesday evening last, during the interval between the second and third acts I was entering the Theatre in Company with Mr. Reed.  On arriving at the top of the stairs I gave the constable my check, and as I was about to go in the constable sang out in a very insulting manner, "pull that cigar out of your mouth." I asked him what was the matter, and he replied that Mr. Willard had given him orders that no smoking was to be allowed.  I told him that Mr. Sheridan in a conversation in the Astor House said he had no objection to smoking.  The constable then said he was there on behalf of the Insurance and knocked the cigar out of my mouth, and got hold of my shirt collar with one hand and of my leg with the other, trying to throw me down the stairs. To save myself I got hold of him, whereupon he let go of my leg and attempted to draw his baton.  Just after this Inspector Kluth came in and told the constable to let me go.  By this time several people had got around me and I asked them to go inside quietly as I did not want any trouble.  Inspector Kluth sent the constable down to the second landing and I followed and asked him, why he had taken hold of me with such force, to which he answered that he would do so again. Inspector Kluth then sent the constable away.
  To His Worship - If he had told me civilly that no smoking was allowed this would not have occurred.  I had always smoked in the theatre.  If there was any danger of fire, I think a notice should be put up.
  Walter Reed, who was with the defendant on the night in question, gave corroborative testimony.
  Mr. Browett then  addressed the Court for the defence, and said that his client had no intention of smoking in the theatre when told to desist by the constable, and only asked by whose authority he prohibited smoking, when the constable knocked his cigar out of his mouth and seizing him very roughly attempted to throw him down the stairs.  His client, a heavy man, fearing the consequences of a fall down fourteen or fifteen steps naturally took hold of the constable to prevent himself falling, and he asked his Worship to dismiss the summons.
  His Worship, in passing sentence, said it had been clearly proved that the defendant made no attempt to comply with the constable's order to put out his cigar.  The reasonableness of that order no sensible man could have a doubt about, having regard to the desirability of taking every precaution to prevent fire in theatres, when they had in view the awful conflagrations which have frequently occurred in theatres, and which fact he thought should strike any ordinary man. But whether Constable Lee in giving the order was gruff or uncivil his worship could not say. But the defendant took no steps to carry it out, nor did he say. "You ought to give your orders in a civil manner."  But he pleaded leave and license to smoke from Mr. Sheridan.  The police were acting in compliance with their orders and on the other hand the defendant was acting wrongly.  At the same time it would have been better if a distinct notice had been posted up stating that no smoking was allowed, and His Worship would take that fact into consideration in passing sentence.
  He found the defendant guilty of obstructing the police in the execution of their duty and fined him the nominal sum of $1.  The charge against the police he dismissed.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School