THE TOTALISATOR AT THE RACES.

New Zealand Herald, Volume XVII, Issue 5757, 30 April 1880, Page 6

THE TOTALISATOR AT THE RACES.

James Corbett, Henry Richardson, an t Richard Feltus were brought up at tbe Police Court yesterday, before Mr. Bartow, R.M., and placed in the dock, under sub - section 7 of section 4 of the Vagrant Act, 1566, which is as fallows :—"Any person playing or betting in any street, road, highway, or auy other open and public place, at any or with any table or instrument of gaming, at any g-ime or pretended game of chance, shall be liable to imprisonment, with hard labour, for any period not exceeding one month : and every such instrument aforesaid shall, by the conviction of the offender, be forfeited to Her Majesty." The court was crowded. Mr. Hesketh : I think tbe defendants should not be placed in the dock. They are not charged with felony, nor, so "far as I kn»w, tven with a mis demeanour. Even if they were ciiarged with the latter offence, they would be ontitled to stand on the fl.ior of the Court beside their counsel, who might require information from them. His Worship : The distinction here is, tlat those who are arrested by the police are usually placed in the dock, for they are in charge of the police. Those who appear on summons are usually allowed to stand in the Court. I do not know whether you attach any importance to the defendants being placed in the dock. If you obj-ct, you can make an application that they be allowed to stand by llieir counsel. Mr. Hesketh : Then I do make the application. The defendants were allowed to staud on the floor of the Court. The totalisator, with electric battery attached, was fix din Court. Snb-Inspec'.or Pardy conducted tho in quiry. He said the charge was withdrawn in the case of Richard Feltus, who was simply aJ'iug as clerk to the others, and appeared to hav« nothing whatever to do with the matti r. U"h-! iu formation was real over to the defendants. It recited the language of the sub-section above quoted. Mr Uesketh: That is not the charge laid aga'nat the defendants on Saturday last. His Worship, bavin;: conferred with th) pclice, said there was, strictly speaking, no information laid uutil that morning. On the former occasion, the charge was merely entered iu the ordinary way upon the police sheet. J he defendants pleaded not guilty. Sub-Inspector Pardy, in opening the case, said these parties were charged with playing at a game of chance, by means of the instrument in Court, in an open and public place. The complaints made to the police were loud and deep. It was felt that thero was swindling going on oa the first day of the races. Mr. Hesketh : May I suggest that your Honor shouid exclude from the case any other consideration than the one, namely, whether these persons were playing at a game of chance in a public place ? There is no other charge against them. The evidence should be confined to that aloue. Sub-Inspector Pardy : There was a race on Friday, called the St. George's Handicap, of which a horse named ICiug Quail turned out to be the winner. In the manner in which that instrument is ordinarily used, there were only four backers on that horse. Mr. Hesketh : I object to this. It has nothing whatever to do with the charge against the defendaut3. If these persons could be proved to be in a conspiracy to defraud, of swindling, or cheating, why was not that charge laid against them 1 What I object to is that these men should be charged with one offence, and that evidence to sustain a wholly different offence with which they are not charged should be admitted. The object of the opening by Inspector Pardy can only be to inflame the mind of the magistrate against these defendants. There could b? no objection to evidence as to how the instrument was U3ed, or explaining how it was ordinarily worked.

His Worship: The defendants had control of the instrument. How they used it would include the circumstances of this particular occasion. I do not see how I could exclude that. A game viita that instrument might be a certainty, and involve no chance. Some games were wholly of skill; others of skill and chance combined ; others of chance absolutely. Where every man -would win or every man loose, there was no element of chance. Mr. Hesketh : I submit it would be very unfair to convict these men of one offence by evidence which sustains another. Sub-Inspector Pardy: It is necessary to show that this game was played; that a great number of persons gave money to these parties upon the chance o£ winning further sums ; that this sum if fairly divided would have amounted to so much, that it was not fairly divided, and the defendants endeavoured to pnt the difference io their pockets. Mr. Hesketh : I submit, your Worship, this statement should convince you of the necessity of keeping closely to the offence charged. These people aiv not charged with putting anybody's money in their own pocket. Let them be so charged if the police have evidence to prove it. They are charged with a wholly different offence. Sub-Inspector Pardy : Well, I will withdraw the expression. Mr. Hesketh : It ought not to have been made. The effect of it could only be to prejudice the mind of the Court. Inspector Pardy called the following evidence :— Francis J. Shortt, a hairdresser, carrying on business in Auckland, said he was on the Ellerslie racecourse on Friday last. He saw there the instrument produced. The front was exposed, and it was boxed round with an office, there being a hole to take money. He could not see who took the money. He b?lieved it was Mr. Kichardson. He put 10a in through the hole, backing No. 7, receiving a ticket in return. There were only two tickets besides his own on 7 before the horses started. A fourth person took a ticket just as the horses started. A hone' named King Quail won. After ths race witness went to the totalisator. He saw Kichardson, who called out, " Now gentlemen, a fourteenth share on King Quail." Witness was sure there were only four backers of King Quail. Kichardson offered him three notes, but he refused to take it. Kichardson said there had been a great run on King Quail after the horses started. Witness refused to take the money, and said he would go to the police. Richardson then slammed the door and went inside.

Mr. Hesketh: You now perceive, your Worship, why 1 objected to the admission of evidence of what took place with the police. You will perceive the attempt made to get in evidence of a totally different offence from that charged. His Worship : The witness is telling us how these people were using the instrument. It was the manner in which they used the instrument that gave rise to the game of chance. Mr. Heßketh : This evidence is evidence of a totally different offence, with which the defendants are not charged. It is evidence of swindling, but the defendants are not charged with swindling. If the prosecution could support an offence of conspiracy to defraud or swindling, Jhey should have mada it. . ~ • Inspector PardyWeHv : ,l will not press the question. Cross-examined by Mr. Hesketh :—Witnes : I can swear to three, but I am not suro j

about the fourth. The place was surrounded with people. There was a rush for tickets. From the time I left the totalisator until I came back seven minutes elapsed. When I came back I fouud that the number up was fourteen. The gr»nd total was ono hundred and seven, which would give a dividend amongst four of £12 a-piece. Richardson said that some one had turned round the number. Some people asked how he made the number agree with the grand total. There was a good deal of noise a clamour. Mr. Hesketh: Never mind that. (Addressing the Court) : Here, again, is a proof that evidenoe of a totally different offence is got

His Worship-. It may ba t L at something extraneous will be statsd, but that need not be tiken as evidence. W. K. R. Churton, a gentlem m who was on the grand stand and saw the mimbera up at staning, who went off the grand stand and calculated what the dividend would come to, said at 5s it would come to £6 each ; at 10s, it would have come to about £12. He only noticed that the number four was up. He looked at it merely through curiosity. He did not see any number fourteen. A witness named Roth, a bootmaker, deposed that he put 10s in, and got the ticket. There were only four. He went to look at the race, and "returned in about two minutes, when the number was changed from four to fourteen. The witness identified the defendant Richardson as principal in the transaction. Tom Wrigley deposed that he went up to the totali3ator while the dispute was on. He saw the defendant Kichardson, who said the numbers must have been altered from the outside. Witness said to Richardson, "If so, how do you make your grand total correspond V' Richardson replied, " Mind your own business," or something of that kind. Richard Feltus said ho was simply employed by the defendants to stamp the tickets. Richardson took the money and Corbett worked the machine. He (Feltus) simply received a sovereign for his day's work. He had nothing to do with the machine or the money received. Detective Jeffrey deposed to arresting the prisoners. He explained the manner in which the machine could be worked. By turning round one of the numbered cylinders the number of persons shown as contributing to the pool, and the number of persons shown to be entitled to share in the division, could be changed. The remainder of his evidence was corroborative of the testimony given by the previous witnesses. Mr. Hesketh : The injustice of letting in this evidence must be apparent to the Court. Inspector Pardy : In a game ol dice, which is a game of chance, the fact that the dice were loaded would be admissible. It was quite competent to show that the defendants were cheating. Mr. Hesketh: I must protest again against a conviction being wrested in this way by implications. His Worship : It is impossible to exclude statements of fact which go to show how this instrument is used. Whether it is an instrument used iu playing a game of chance can only be shown by detailing what was actually done with it on a particular occasion. It was not a sufficient ground of exclusion that evidence might suggest or support a different charge. Mr. Hesketh : I submit that no case under this Act has been proved against the defendant. (1) It has not been provod by evidence that this instrument is an instrument of gaming; and (2) that if it was, it was not used in an open or public place within tho meaning of the sub-ssction cited. I will take the last point first. The Ellerslie Racecourse is not " a public place" in the same sense as a "road," '-'street," " highway " (ejusdem generis). It was held that the entrance to a railway where public cabs plied for hire was not a "public place" within the meaning of the Act. Ellerslie Racecourse was private property. A charge was made for admission. The owners might exe'ude the public, and never open the place for any purpose. It conld not, therefore, be an "opeu" place, and it was not a public place if a railway station was not so considered. (Case v. Story.) His Worship : Have you looked into tho case of Tollett v. Thomas, where the Lord Chief Justice delivered judgment. That case was exactly the same a3 this; the "instru nent " was exactly the same, only there it was called a mxiluel.

Mr. Hesketh : That ia so. This is no new thing. It is certainly as old as ISGS. Tin's totalisator is in all respects the same as the instrument used there. His Worship : You will also perceive that the English Act is somewhat different from the New Zealand Act. There the words occur, "or to any place to which the public have access." Mr. Hesketh: If those words occurred in our Act I should not be able to contend that the Ellerslie Racecourse did not come within this sub-section. His Worship : Stone, in his *' Manual," nays that a racecourse is a public place within the statute. It was also held in the judgment ol the Lord Chief Justice that a racecourse was a public place. The Doncaster Kacecourse belongs to the corporation, who might shut it up at any time. Mr. Hesketh : Your Worship will bear in mind that the proprietors of an instrument of that description is not necessarily engaged in a game of chance. The players are really those who put their money upon or against the chance of a particular horse winning. The proprietor of this instrument is only concerned in dividing the money, " keeping 10 per cent.," so that the result to him is the same in any eveni. It is not the proprietor alone that is guilty of an offence under the Vagrant Act, if there be one. Half the respectable men in Auckland—and ladies, too—would be chargeable with the offence. (Laughter). In the judgment referred to Wolverhampton racecourse might be a "public place," and Ellerslie racecourse not be so. It appears to me to be hard on these defendants that they should have been j procoeded against under a statute which ' leaves the Court no alternative but to send I these men to prison if convicted.

His Worship : X think Ellerslie racecourse is a public place witliia the meaning of the A.ct. I think this instrument is an instrument of gaming, and that it was used in playing a game of chance. A mere element of chance was very simple in itself, but when " trickery or confederates " formed auy part of the game, the chances against the cheating were lessened. That was a chance unfavourable to the public, and this element could Dot be shut out from view in considering such a case. I should be very much disposed to pass a light sentence if I could ; but I cannot. I think I must consider the whole of the circumstances. I /shall therefore order that the defendants l>e imprisoned for one month, with hard labour. The decision appeared to occasion some surprise in the dense crowd which thronged the Court and its preciuts. The case and the decision cannot fail to have an important influence upon racecourse praotices of a like description. Another Case. Lawrence Adams was brought before the Court, charged under the same statute (the same section and same clause). In this case, the instrument was called "J. Friedman's No. 1 Totalizer," and was a much more primitive machine than the one in the previous case. The alterations suggested by the police were presumed to have been made with pencil marks. In this case, the

money was laid oa horses, (I*s) in the " Selling Race." Mr. Hesketh and Mr. Tyler appeared for the defendant. The defendant pleaded not guilty. Mr. _ Heaketh took the same preliminary objection in this case as ia the last—that the only evidence admissible was as to whether the game played with the instrument were a game of chance. His Worship : There are two elements of chance :— (1) The ordinary chance pure and simple, without reference to any unfairness. (2) The other was where the new element of chance would come ia through unfairness. Mr. Hesketh: Then I say, your Honor, the unfairness cannot come under the section. For unfairness, if the defendant was guilty of it, he could be punished for it under a different statute. He' should be charged under such Act. Would evidence of unfairness if it were admitted affect the atnoant of punishment you should award ? His Worship : I certainly think so. I think it be shown thattlm instrument could be used for the purpose of cheating. Mr. Hesk.eth : If it is proposed to adduce evidence to prove any other offeace than the one actually charged, I say at ouce we are not prepared to meet it. His Worship : I think I must receive evidence as to what the defendant did with the instrument on the day in question. Mr. Hesketh : It would be easier to rebut a charge of cheating than fco bring evidence to show that the ins'rument might not be used for cheating. Bub-Inspector: If anything should come out detrimental to Air. Hesketh's client I could not, of course, help that. Charles Bowden said he was on the Ellerslie Racecourse on Friday, the 23rd. Ha saw the defendant there with the machine then in Court. Witness backed horses Nos. 1 and 5. He ran across the road and saw the defendant coming out by the " totalizer" with a sheet of paper in his hands. (This was a sheet with twenty columns, the names of the running horses to be placed at the head of the columns. The subscriptions to the pool were indicated by strokes.) He saw the defendant distinctly make a mark. Went to him and raised hia hand, telling the defendant to " stop that marking." He said there were twenty-eight tickets. Witness siw the act of the defendant distinctly, and swore to it positively. James Skirving deposed that he was on the racecourse. He pat two sums of 53. into the race. He saw the defendant, who gave him the tickets. Went on to the grandstand to see the race. Came down and saw the defendant take down the sheet from the board. Witness was attracted by the act because usually the marks were totted up while the paper was on the board. The defendant was taking the paper round to the back when his hand was seized by the last witness, who said "stop that," or " don't do that," or something to that effect. This concluded the evidence for the complainants.

Mr. Hesketh said that no case had been proved which th« defendant should be called on to answer. To prove a wholly different offence wag not establishing the present charge. He would ask the Court to consider how unjust the proceeding was. If the defendant was able to show that there had been no unfairness practised, that everything done was perfecty honest and straightforward, he could not benefit by it. That was a good test that tha evidence should not have been admitted. His Worship : I cinnofc shut out the facts proved, that this was an instrument with which a certaiu name of chance was played. I must also consider that unfairness is an element in the question as to whether or not the game was a game of chance, because the unfairness introduces a new element of chance. I think there is a case which the defendant is bound to answer. Charles Dell was then called. He had taken tickets for the Selling Race. It was because he suspected unfairness at the other board that he went to this one. He had taken tickets from the defendant before, and been paid. He always believed the defendant until he heard ths noise and uproar upon this. He did not see him make any mark. Cross-examined by Inspector Partly : The witness said he could not see defendants' hands. There was a good deal of confusion, aud people were standiug around. John Wyland, Thomas Lett, Albert Hooker, and Charles Hill gave evidence nearly to the same effect. They had not got their money back. Mr. Tyler: What we s*y, your Worship, is that the defendant is charged with playing at a gama of chance with that instrument. The game was played by others, who laid their mouey upon thkir favouritehorses, and who were to have a division of certain moneys upon the event of any particular horse winning. Whatever horse won, it was all the same to the defendant, for his part in the transaction was singly to divide the money, deducting 10 per cent, commission for himself. It is oar case that evidence of another offence will not justify the Bench in committing him upon the offence charged. His Worship : I hold that this is an instrument for playing at a game of chance; that it was used for this purpose on the day in question. I must also hold as in the previous case that the Kllerslie race-course is a public place within the meaning of the Act. Whatever may have been the effect of the evidence, I could not exclude any testimony showing the manner in which the instrument was used. I give my judgment without reference to any question of unfairness. I do not say whether there was or was not anything unfair. lam of opinion that the defendant was engaged in playing a game of chance with this instrument, aud is therefore guilty of the offence charged against him. Tho sentence upon him is that he be imprisoned and kept at hard labour for one month. This concluded the totalisator cases.