“TWO-UP.”

New Zealand Times, Volume LXXV, Issue 5112, 3 November 1903, Page 5

“TWO-UP.”

THE CASE FOR THE PROSECUTION

A PROTRACTED SITTING.

Hearing of tho charge against William Henry Hager, alias llichard Oxcnham, charged with keeping a common gaminghousu in the premises known as the Olympic, was resumed ill tho Magistrate's Court, before Dr A. McArthur, SAL, yesterday afternoon. Mr Myers appeared on behalf of tho police, and Mr Jqll'coo to defend. Alfred Davis Brown, probationary constable, stationed at Mount Cook, said ho became a member of the Olympic Club on October 3rd. Ho first visited tho promises on September 30th, about 10.30 p.ra. Both doors leading up to tho main room were open. Witness did not go into tho room. A man named Hogg accompanied witness on tho occasion of his second visit. They arrived at tile club about 2.30 p.ra. “Two-up” was commenced about 4 p.m. Eager was outsido tho door when witness entered. Witness did not see Sturgeon. Ho did not know who was “ring-keeper.” Eager was manipulating a set of “checks” or “counters,” and dodging about among tho card-players. Thomas went round every hour collecting a shilling from tho players. Tho third timo witness visited tho place he was ushered in by Counihan. On coming to the second door, Counihan called cut “Bight, lad,” and Thomas drew back tho bar on tho door. Witness stayed playing “two-up” until XI o’clock, when tho game was still in progress. Ho did not seo Sturgeon on that occasion. Eager was doing nothing in particular. Jack Sullivan occupied tho ring-keeper’s chair. On tho following Saturday, October 10th, witness again visited tho chib, when “two-up” was in progress. Sunday afternoon was also denoted to tho game. Ho did not remember who was ring-keeper on that occasion. Witness was at the club again on. the succeeding Saturday, in company with Probationary Constable Dapouplo and the man Hogg. This was about 8 p.m. They only stopped a few minutes, but returned shortly after nine o’clock. “Two-up” was then being played by a largo number of people. The next time witness wont to tho club lie joined in a game of “two-up” and lost money. When it was noticed that ho was not betting, somebody told him to “get tout.” Ho wont away shortly afterwards, Counihan and Thomas letting him out at Ho. 1 and Ho. 2 doors respectively. Witness described his last visit on Saturday, 24th ult. —tho night of the raid. Sturgeon was ring-keopor for tho “two-up” players. Witness took part in tho game until about 9.30. At 9.45 Probationary Constable Lapouple wont out. and witness followed a few moments later. When going down the steps ho heard tho cry of “Open the door; police hero.” He pushed Thomas aside and lifted up the bar, and tho detectives immediately rushed up tho stairs. Witness corroborated tho evidence given by Dapouplo before the S.M. on Friday, as to the practice of collecting a shilling from players every hour. Sturgeon usually performed this office. Witness was asked' by Counihan on several occasions if he could ploy poker. “Two-up” was not played every night. “Week nights” (when the doors wore left uubai-red). were devoted to other pursuits. In the course of his examination, tho chief witness refreshed his memory on several occasions from notes made after leaving tho Olympic Club. Cross-examined by Mr Jelhcoe, witness said the notes produced in Court were net those originally made, but a copy. He made the copy at Mount Cook Police Station, and afterwards destroyed tho original. Counsel: Did you give a copy to your superior Officer? —No. Did you give a copy to anybody? Yes; to Chief-Detective McGrath.

When? —I could not say. Do you wish his Worship to believe that?—Yes; I can’t say when. Further cross-examined, ho said the two documents referred to—that given to Chief-Detective McGrath and the copy (produced) for his own use—should coincide. • , Counsel read a paragraph from each, bavin® reference to the happenings of October 13th. One proved to bo a much longer and fuller account than the '(other, and counsel inquired which was correct? ~ . Witness replied that that given to the chief-detective was right-. (He qualified his answer by stating that ho never suggested both wore copies, word for wordT of the original entries in his note-book. . . Counsel’s cross-examination v as in the main confined to the statements made in the copy of witness’s notes. (Re-examined by Mr Myers: Is this, so far as it goes, a true copy.of your'notes. —Yes; but not word for word, 1 have left out certain portions of my original notes in the copy I kept for my own use, because I considered them of no importance. ~ Thh concluded tho evidence for the orosecution. ‘ At 4.20 p.m. the Court adjourned until 7 inm. _ On resuming, Mr Jellicoo addressed the Court for the defence. He said the charge against. Eager was that ho vas tho keeper of premises used as a coanmon e aming-house, and that proceedings had been instituted under tho Gaming and Lotteries Act of L-81. His Worship had nothing to do with any charge under the Criminal Code, whether the game alleged to have been played was called 11 two-up, lioadin em’” or “ pitch-and-toss ” was immaterial to his purpose. Ho submitted it was not an unlawful game, and that was the first point on which ho,would ask his Worship's consideration, unlawful games were limited to those which had been expressly declared unlawful bv some statute. Counsel quoted authorities to show that no game was in itself unlawful, and that the Court should look to the statutes to see which were unlawful by legislative enactments. It had been decided in the English case of Watson v. Martin that "two-up was uot an unlawful game. Mr Myons: That was not “ two-up. It was " piteh-and-toss.” Mr Jelliooe: That is tho same game. (Laughter.) Continuing, Mr Jellicoo sam tho authority ho had quoted was the only one dealing with any game of a similar kind. Tho Legislature, dealing with l! public places” under section 8 of the Act, had made gaming in a public place an offence. It specifically stated that games of certain kinds were uot to bo played in public places, but there the matter ended. It did uot say that a person was not to play some : lawful game at a club or his private house. Counsel quoted from the Chief Justice’s ruling in the case of Joe Quick, in which a largo number of Chinese were charged with playing "fan-tan.” He asked his Worship if thoro was anything in the statute prohibiting accused from playing a lawful game for money in tho house where they were found? There -were certain facts established during the hearing of tho case. First, that the premises raided were a,club; secondly.

that accused wero playing a perfectly lawful game. Where, ho asked, was there a scintilla of evidence to show that a perfectly lawful game was unlawful; or where was there any evidence to show that the gaming was habitual? Mr Myers, for the prosecution, said it had already been decided that the English statutes wero in force in this colony, and that tho English-statutos wero not exclusive. Ho proposed Co show iliis Worship that “ two-up ” was an unlawful game. Whether it was or was not, however, did not matter two straws. Even supposing it was a lawful game, it would have become illegal when played to tho extent deposed to in tho present instance. In tho present case they had a house which was -reserved for athletic exercises during four days of the week and for gaming for tho remaining three. There was sufficient evidence adduced in proof of tho latter .allegation, and his case principally lay in allowing that the premises raided were used for the purpose of playing an unlawful game. “ Two-up ” was a game of pure chance. That had been proved. Would his Worship say that tho Olympic Club, which was open three nights each week for tho purpose of playing an unlawful game, was nob injurious to the public morals? Counsel also submitted that the marked coins and tho innocent-look-ing pieco of wood (the “kip”) which had been produced wero Histrumonts of gaming. They had tho evidence regarding the system of electric bells and barred doors which had been installed, and evidence in reference to wooden shutters and blinds which had boon brought into requisition to hide what was taking place inside. Even if “two-up” was a law” lul game it became unlawful when played in a house such as that which bad been described to the Court. Air Jellicoo quoted a decision of the Amv South Wales Court in ox parte xViitehoJ. "where it had been held that Twa-np” was not an unlawful game because there was no legislative enactment making it so-. Hi. c i Worship said, it was not for him to inquire whether there was a sufficient amount of evidence to warrant a conviction when the case came before a jury, but to decide whether the evidence warranted, or was sufficient to .justify tho case going before a Jury. Ho did not think ho would bo doing his duty if he did not soud tho defendant .to tho Supremo Court, where tho important points raised in the case could be decided. There might bo an expression of opinion that tho accused wero not engaged in an unlawful game, and it was only right that they should know their true position as regards tho gaining for him, to say why tho house had been secured in the manner testified to by tho witnesses for the prosecution. It was further a question for tho Jury to say -whether the alleged gaming was characterised by a sufficient degree of habituality, if ho might so speak, to warrant the conviction of tho accused. Eager was then committed for trial, bail being allowed as heretofore. THE ADDEiGEiD ASSISTANTS.

Tho cases in which Harry Thomas, Frank Sturgeon and Edward Counihan wore charged with assisting in conducting a common gaming-house, and the further ohm-go against Sturgeon of being the manager of a common gaminghouse, were also argued. . ■ Mr Jellicoo submitted that the charges must be dismissed. Ho asked how Ins Worship could send these men for trial when a prima facie case had not been proved against them. There could not bo a prima facie case when the alleged principal was awaiting his triqil for keeping a common gaminghouse.

Mr Myers having replied, his Worship said ho would have to commit Sturgeon far trial on the charge of having assisted in tho management of the house. He would reserve his decision in tho other throo cases until Tuesday, 10th inst. Bail was allowed- in vSturgeon’s case in tho sum of £SO and one surety. FOUND ON THE PREMISES.

Tho following were charged with being found without lawful excuse on promises used as a common gaminghouse:—iH. Brown, Michael Hogan, John L. Henry, William Monk, Albert Rhodes, William Smith, Alfred Walker, Wjlliam McNamara, Thomas .Killery, Daniel Robertson, Gilbert Walker, William Oassorly, Robert”Nesbitt, Michael Casserly, William Anderson, George Darling, John Mitchell, John Sullivan, George Lauritson, Walter Clements, John Tucker, Daniel, alias Arthur Mahoney, Charles Hancox, Andrew Larsen, Edward Johnson, John Anderson, Thomas Johnston, Patrick Dooley, Thomas Edward Winter and Yftlliam Hatton. Mr Jellicoo raised tho same argument in these cases os that put forward on tho charges against the alleged principals. Ho submitted that his Worship hod no jurisdiction to convict. In any case, he said, the decision would be made tho subject of an appeal, the responsibility for which would rest with counsel for the prosecution. Mr Myers traversed the defending counsel's arguments at length. Woujld it, he asked, be suggested that if Eager had not been present when the police entered the place, there would have been no action against those found on the premises? Supposing that Eager had loft tho colony, would the parties to the informations bo freed from guilt? Ho submitted that the Magistrate adjudicating in such cases was clearly bound by the decision of the Highs, Court in the case of Joe Quick v. Cox. His Worship: I have no desire to shirk my responsibility in the matter. I will give judgment on Tuesday, 10th instant.