PROSECUTIONS UNDER THE GAMING AND LOTTERIES ACT.

Evening Post, Volume XXII, Issue 147, 23 December 1881, Page 2

PROSECUTIONS UNDER THE GAMING AND LOTTERIES ACT.

At the R.M. Court this morning, before Mr. E. Hardcaatle, R M., and Messrs. Gampbell, Toomath. and the Hon. J. Johnston, J.P.s, Sir William Fitzherbert, Horatio il'CullochLyou, F. H. Bell, and tho Hon. J. Martin were charged that they did, on the 30th of November last, take pare in a Bweep contrary to the Gaming and Letter! 8 Act. Mr. K. Shaw conducted the prosecution. Mr. Fitzherbert appeared for Sir William Fitzherbert, Air. Gully for Mr. Lyon, Mr. Gordon Allan for Mr. Bell, and Mr. Bnckloy for the Hon. John Martin. Mr. E. Shaw, in opening the case, Baid he appeared to charge the defendants with being parties in an offence under the Act. The facte were simple— A race-meeting was held at tho Lowpr Hutt, where prizes were given fcr the various race 3. The defendants weie pre3enb, and the informant, as a police officer, attended on duty. He took a note of the transgressors against thia Act. 1 he Act was a very atringent one, amd had been passed because the old Imperial Act was not sufficient, though the present Act was almo3t identical with the law as it existed in England at the present time. The defendants, throngh Mr. Lyon, asked the detective to watch them draw a sweep, and report it to hi 3 snperior officer. The detective did bo, and reported accordingly, and this prosecntion was thereupon initiated. Sir William Fitzherbert, with the usual luck of a novice, won the s weep. The prosecntion was under the 18th and 19 eh sections of the Act. I', might be said that the Bench con d not judicially infer what constituted - a sweepstake, but they had to taka a common sense view of what did constitute a sweepstake. He had looked into Webster, who defined a sweepstake as ene that swept; the board. He proceeded to define what constituted a sweepstake, arguing that under the Act a oflreepstake was a lottery. Tho defendants were partners in a lottery clearly within the meaning of the Act,"for a money piize was competed for by lot, and their W"L>rehip3 must come to the conclusion that it was a scheme in which a money prize was competed for by lot. He held that the defendants were partners, though no doubt it would ba urged that they had no community of interest. Tb.9 Le s 'islatnre, in framing this Act, intended it to be applied in its broadest sense, and a m*n was a oartner who took part with another in every lottery or scheme. They were partners till the drawing, and their Worships would no doubt come to that canclusioa on hearing the evidence.

Mr. Gordon Allan asked that the evidence Bho >ld bo taken down fully. The Resident Magistrate did not sea thero wa3 any necessity for taking the evidence down, as there was summary jurisdiction. Mr. Allan said it ought to be done. Arthur E. Grimstoue was called, and said he was secretary to the Wellington Racing Club. Ho proved that a race mooting waa held on that day under the auspices of the .Club, whena hs^pk hur^e .r^e^a^aa f or a money prize. Colonel Poaroe was next called to, prove that the above race was run, and that he, as judge, determined what horse won. In reply to Mr. AUan.TrifcnwrwfeHihat some sweepstakes were merely subscriptions by the owners of the variom horses. , ; * * Mr. Shaw asked the witness to define what ordinary sweepstakes were, on which he gave a description of how otdinary>BWteps were drawn. Mr. Buckley, objected to the coarse .that Mr. Shaw waa taking irt snggeaiang'fo'' lhe witness what a sweepstake wub, and Mr. Shaw did not press the examination, further, but Eaid he would recall Mr. Pearce.' In reply to Mr. Buckley, witness said, that the race in. question waa moVa-'getro, °f chance ; it required skill and judgment. Detective Ghrystal sdd he was on duty at the Hutfc racecourse on tne 30th 6f ber last, in the enclosure. There was an extra price ohftrged for adraiasiob torthat p6rtiou of the ground. A hack" nutate 1 race was run f.ir, to whioh was attaohed a money prize. At the r>;q\ießfc of Mr. Jjyon, the Yon. John Martin, and Sir William Fitzherbort, he watched thorn draw a swoop, in order to test the question as to whotlngtho Act was intended to apply to cases of ttfe fort. Witness saw Mr. Bell hand over half a sovf reign to Mr. Lyon, arid eaoh of the other defendants did the Bame, after whioh the sweep was drawn in tho usual manner. Sir William Fitahorbert draw No I—Daughter)—Mr. Lyon drew No. 4, and No. 2 for Mr. Bell, Mr. Martin drawing No. 3. Witness was afterward informed that Sir William Fitzherbert won the sweep. Ihe transaction was what he always understood to be a sweep. The Hon. John Martin said that they did not think th» Act applied to Bmall sweeps on tthe ¦; racoooutse, but to sweeps of the kind fhaf^N&th got up. (Laughter.) Mr. Fitzhorbert Baid that was, in fact, his defence, viz , that the Act did not apply to sweeps of this kind. In reply to the Bench, witness said that tho Hon. John Martin told him ftvvrai merely to tost the question? asito \fhlbhor this kind of sweep was prohibited, as he did not think that was intended. By Mr. Allan — He knew thit swoops were got op; in which tHe pijohfoter' deducted a commission. t That was a oommon "practioe, but ho never joineflMn a sweep of that kind. By Mr. Fitzherbert— Ho was not an export in sweeps. There wore two systems of Bweepßtakos, whero the winner took the whole of tho money, aa in this oase, and another where money was \gtth a man who charges commission. , I, Mr. Shaw admitted these facts, 1 as shown by North's BWeep. 1 i'" x *¦ 1 r >» '» In reply to Mr. Bunklay, wftn&felsaia he knew nothing of North's Bweqp, buvjMr. Martin or Sir William FitzhorDert spoke about it at the time. North got up a sweep of some thousands; and swept<th»nj allnway with him. (Laughter.) Witu'esa KeM tho ,hat when tho. swoop was drawn. (Laughter.) 'He" was not apartytb tho Transaction, but he held the hat aftor some of the tickets wet « drown,'-', -HoAw6uld riot like to do anything wrong, and he did not inform against Detective . Chrystal. (Laughter.) He had rtad some of 'the Gaming and Lotteries Aot. Ho had read clanßes 18 and 19, but it did not strike 1 him that an information should bo laid against him for participating in tho transaction Colonel Poarco, recalled by Mr. Shaw, said that the process described by tho Lst witnesß wonld.be oalledia BWoopatake. Mr. G. Allan -There wero other kinds of sweeps, though he never took part in one. That ooncluded the oaso for the prosecution. ; Mr.; Shaw 'said that they wore* Jqfutbj' willing to nooopt tho defoudant'a explanation that defendants entered into the matter in order to test the question as to whether the offence in question was a sweopßtako within ¦ trie-meaning of-the-Aofc.-"He (Mr. Bhaw) was placed in a difficulty,' for he had to antjbipato the defence that would be made. 1 * Mr Buckley Baid that it waß not fair to coll U]\on Counstl for the defendants to disclose their defenoe. ' * Mr. Shaw denied that ho was pleading ad misericordiani^tot "a conviction. If thoir Worships wore of opinion that an offonco had been committed, ho did not seek a heavy penalty, he only sought to give a warning to the public. . IV'r. Allan argued that the prosooution could not be bustiinod. Legislatures at times beoamo very f moral, and passod measures which were never intended to be strictly carried but," but, as in' the present case, to oheok gambling on a largo scale. This Aot was never intended to apply to little sweeps of the kind, b'utAoi t>tft>6 fctop to the large lotteries that had beoomo so common prior to ' tho Act being passed. Tho prosenution, had been brought under the 18th and 19th sections of the Aot, but he urged that the alleged offence did not come within their provisions, and. that they meroly applied to persons whi, for gain', got up a lottery. THobo participating in a sweep of the kind must have been partners in some gain under the partnership, but in a swoop .like that de«oribcd, there was no such result. Thp'refote thor6 could bo nd' paHn4r|hip as alleged. He'qti'.te'i a oase' in sijp^ort, where a gift distribution at an entertainment took place, when it was sought to bring in those who obtained Rifts, but where it! was hod that tho man giving away the gifts was alone liable. When in a sweep like this the money was deposited, it; oeascd'jo bo the property of any depositor, but became the property of the winner, and he oeafedd to have any interest in it. How could that bo a partnership, and how oopH any profits bo "divided P' He submitted that 'tlttr 'case was too ridiculous for argument. The ota* could not come within the olause, for the defendants wero not partners, and reoeived no consideration. Iftnat was the law, anyono taking an interest in an Art Union fct • M ome might be procecdod against and convicted. The prosecution had whpjly failpd, and the oase had not been made out — first, because no partnership had been proved; and secondly, because -it was not promptod by any one man for the purpose of gain. The Aot merely applied to the large lotteries and , not to snob, as .these. „ „ - -. Mr. BncHey would not travel btdt the same ground as hi? learned friend, bat would draw the attention of .tho Jiench to tin form oE information. ' Tho partnership iii that was one not known in law r and he quoted from Lindley on " Tho Law of Partnership" in proof of this, as well as several othbr authorititt. Only one pers >n~tf>ok anything in 6uoh a sweepstake. One of the aopa?ed obtained the money, tho others had n6 share whatever, so there could bo no possible^partnership. Ho read tho 19th section, whioh stated what should be deemed a lottery within tho meaning of the Aot, and contended that tho present alleged offenoa- did not come undtr its provisions. Ihe intention of tho Legislature was to meet easeß where persons got np lotteries for personal gaiu to themselves, as in North's case, whioh had been quoted. He quoted Finlin's definition of gaining to show that the speculation in question oould possibly come under the definition ofifUaing. He submitted that tho prosecution haoTfcbsolutely failed. The Aot conld not affect this transaction ; there mi no profit to the defendant*, excepting one, and he hopod that the Bench would dismiss the case ao one that ought never to 'have beoa brought before the Court. Mr. Fitzherbert-wid there was very little to say after the addresses of the previonn speakers. He merely wished to cay that ho defended the oase on the broad ground, that the Act wai never-intended to apply to casea of this kind. There were prolesßtonal and there were amxteur sweep's, and the former were regularly organised speculations, in the profit of whichihe promoter?, those who sold the ticketß, and others participated, bnt these sweeps were totally and whol'y distinct. The Gaming and Lotteriej Aot affected the professional ' sweeps, which tende 1 to do public harm, and enabled some, like North, to swindle the public. He pointed out how oppressive, if the Aot ware stringently insisted on, it would become, and how it would interfere with even social amusements at private parties or otherwise. He concluded by saying that the A cfc. applied to the professional sweeps and to no oth^s, and that a sweep of this kind was never intended to be touched by it. -", Mr. Gully alio addressed the Bonoli to the same effec 1 -, and argued thaf'there.wafe no penalties for gaming provided in ' tfidf Act, but only for maint lining houae3 where gambling took plica. The Bench retired, a»d on retnrninj? into Court delivered the following Written judgment: -''The Magistrate* thihlftluiy must convict the defetidaita.' They think the facts as alleged are proved, and that they are prohibited ' by latri Th«!y think tha 1 ; in cases like this persons likely:' to tj lbtnit the prohibited ast would thinlc it prohibited by nothing bnt the law ; anJ, therefore, as the only deterrent is the moneyless, that shoal J also be specially substantial 'to deter. In this special case, they' think that the eminence of the position of defendants, and the publicity and deliberation' "of the act, call fcr vindication of -the law. „'Jhe defendants era fined £\Q eaoh.' From this decision the Hon. J. Johnston dissents." fLeft sitting.! The following advertisement appeared about five years ago :— " The vi<s« of Jabb;combe require * the help of a priest who can sinp well for five weeks fr jm the 7th June ; Je2 23a*raek." " 1 hat's what I call a finished Fermon," Raid a lady to her husband; na they wended their way from church. "Yea," was tho reply; '"but, do yon know, I thought it would never be." >