THE "SWEEP" CASES.

Otago Witness, Issue 1582, 18 March 1882, Page 22

THE "SWEEP" CASES.

At the City Police Court, on Saturday, before Mr E. H. Carew, R.M., Donald M'Kenzie Spedding, Gilbert Matheson, Job Wain, jun., Henry Smith Fish, jun., William Watson, Robert Swan, James Gore, George Watson, and James M'Donald were charged with having, on the 23rd of February, at the Forbury Racecourse, unlawfully assisted in managing and conducting a certain lottery— that is to say, a scheme of the nature commonly known as a "sweepstake," by which they paid and contributed the sum of £1 each to a common sweepstake or fund to the intent and with the understanding that such sweepstake or fund should be paid to whichever of them should be the holder of a ticket representing the winning horse in a certain horse-race —to wit, the Publicans' Handicap— the possession of such ticket having been previously determined by chance, contrary to the provisions of the Gaming and Lotteries Act. Mr Denniston appeared for the prosecution ; Mr James Smith for the defendants Spedding, Matheson, Wain, and William Watson ; and Mr Solomon for the defendants Swan, Gore, George Watson, , and M'Donald. Mr Fish appeared on his own behalf. Mr Denniston: How do the defendants plead? Mr Smith : lam going to demur. Mr Denniston : In that case I will call upon the other defendants to plead. Messrs Solomon and Fish also demurred. , Mr Smith said he thought he would be able to show that the information charged no offence under the Act. He need not remind his Worship that he was sitting to deal with the matter m a summary manner,, and that' it was therefore incumbent upon him to apply the Fame rigid rule of construction of this highly penal statute as would be applied iin the Supreme Court. He asked that the statute should be applied with the greatest rigidity, on account of its oppressive nature. f His Worship : I have no right to consider that the statute is oppressive, • Mr Smith said it was sufficient for his purpose that it was a highly penal statute. He thought he could characterise it as such. His Worship would find that the information laid charged this : That the persons nanied on a certain occasion each subscribed £1, and that the sum so subscribed was to be paid to that one of the. persons who became the possessor pi a ticket (representing the winning horse in a race. Npw he submitted that it did hot disclose any offence under this Gaming and Lotteries Act. The information did riot state, that the rack— the Publicans' Handicap— was, an event that had not come off at the time. Therefore he had a right to ask the Court to assume that the language of the information implied that 'it had come , off at the time the sweep was drawn. , The result, then, was that the purse did not dopend at that tune on any chance— for the race had actually been determined. The fact was simply, in other words, that these people assembled and raised a subscription for the benefit of one of their number, and then adopted a circuitous process of presenting him with it. He submitted that the charge did not bring defendants within the provisions of sections 18 and 19— in fact, that under the latter section the information entirely broke down. He would show that the meaning of the word " sweepstake " was "a man who sweeps up a stake,' and if he thus demonstrated that .the Legislature had used a word which made the Act nonsense, then it would be all the better for those whose persons and liberty were aimed at. He would show by some of the best dictionaries that the meaning of " sweepstake" in its common acceptance was the person who, received the stake, and that "sweepstakes" commonly means a fund subscribed by owners of horses to supplement a sum given by a jockey club. Tht Legislature by the use of the word " sweepstakes" had rendered the forming of a sweep by owners of horses illegal, but did not touch a few friends who might make up a sweep or purse to be given over to the drawer of a winning horse. His Worship : It is clear that such cannot be the meaning of the Legislature— the Act says " a scheme commonly called a sweepstake.'! Mr Smith submitted that it was not competent for the Court to supply language to enable it to carry out an enactment ; that would be making his Worship a law-maker instead of an administrator of the law. The Legislature should use adequate language. Turning to the definition of the word " sweepstake," he would quote from Dr Latham's dictionary— " originally a game of cards: now applied in the plural form to the whole of the stake or wager by a certain number of bettors." Now the plural form was used in the Act ; in the singular form it had no such meaning as in the Act. The "Library Dictionary " gave only the plural form, with the following meanings :— (1) " The whole money staked or won at a horserace ; (2) one who wins all." We find, therefore, that the word means either only a fund or an individual, and its presence must render this part of the section senseless. His Worship : I am afraid I must say that anyone who goes on a racecourse hears the expressions "Let us get iip a sweep," and "Let us get up a sweepstakes." Mr Smith submitted that on the contrary the word " sweep " was alone used in such a connection. If his Worship overruled this objection he could produce abundant evidence of the application of theso words. However, the compiler of the information had not taken his aiivad on this, but had gunc into the description of the transaction, and that was where he had put his foot into it. The information said that the purse was to be handed over to a person who was the holder of the name of the winning horse. Mr Denniston : Well, which should prove to be the winning horse. Mr Smith: The prosecution are tied down to the words in the information, and my infer* ence is the fair and only inference that can be drawn from the wording yf the ijiforaatipu,

His Worship : I think at present there is sufficient on the face of the information to call upon the defendants to prove their case. Mr Smith : Very well, your Worship ; we will hear the evidence. Mr Denniston : Now, your Worship, I will ask for a plea. Mr Solomon : Not guilty. Mr Denniston : Mr Fish, do you plead ? Mr Fish : I desire to have my case entirely severed from that of the other defendants and tried afterwards. His Worship : It is made a joint offence. , Mr Fish : But it should not be a joint offence. His Worship : Why not 'I You are charged with acting together, and you have an advantage in that respect, for if you were proved guilty under a separate information you would be liable to a fine of £200.

Mr Fish : I desire to take a certain course, and in doing so I may prejudice the other defendants before the Court. Whilst lam clejir of my own position I am not as to that of the other defendants ; but if your Worship thinks it is absolutely necessary that the cases should bo heard together I shall plead not guilty pro forma. ■ Mr Smith and Mr Solomon then, on behalf of their clients, pleaded not guilty. Mr Denniston then opened the case, saying that the drawers of the Act must be assumed to have cognisance of the meaning of words in common use. He also quoted from the " Imperial Dictionary," which gave a similar meaning to the words "sweep" and "sweepstakes." He called i

Robert Bain, who deposed : I am a detective stationed in Dunedin, and was on the Forbury Park racecourse on tiie 23rd February. The card produced was the correct card of the races, and was bought by me. Mr Denniston : Was this the official catalogue ? Mr Smith objected to this question. Witness continued : Ten horses entered for the Publicans' Handicap. About ten minutes or a quarter of an hour before this race was run I saw the defendants. Mr Spedding was on the grand-stand stairs, and was writing the names of the other defendants in his notebook. I saw a number of the gentlemen hani £1 each to Mr Matheson. I saw Mr William Watson, and Mr George Watson, and Mr M'Donald hand £1 to Mr Matheson. There was some little dispute, and Mr Matheson counted up to nine, and said he was a pound short. The eight gentlemen said they had all paid, and they asked Mr Matheson if he had paid, and he said he had. Mr Matheson turned to me, and said, " Here, Bain, you had better be in this" ; and Mr Watson said : " I will lend you a pound If you like." Afterwards I saw the defendants drawing their tickets. Mr George Watson drew No. 5. Immediately after the race was run I saw Messrs Spedding and Matheson leave the stand and come down to a booth, and the former hand the latter a roll of notes.

Mr Denniston : I propose to ask the witness what he considers and understands as a sweepstake. I presume my learned friends will not object to the question.

Messrs Smith and Solomon intimated that th did not obiect '

ey — oojbv . i Mr Denniston : Very well, then; answer the question. : Witness described a " Bweep."_ To Mr Smith : lam not a racing man, nor a turfite. Air Smith : Give me, if you please, a definition, if you are able, of what you understand to be the popular signification attached to the word " sweepstakes. \ Witness : A number of persons subscribe; to it— to the sweepstake or sweep on the race to be run. If 10 horses are entered on the card the getters-up get a number of tickets and number them from 1' to 10, to correspond with the correct card issued by the Jockey Club, if there is one. The tickets are then placed in a bag or hat and drawn. Whatever number the winning horse may have, the holder of that ticket is the winner of the sweepstake subscribed by the subscribers. Mr Smith : Is that what you understand to be the ordinary meaning attached to " sweepstakes"?

Witness : That is a class of sweepstakes. The word "sweepstakes" is most commonly used in respect of races where the persons who enter horses have to add money to the prizes. The other sweepstake I have spoken of is generally known as a " sweep." This was the case for the prosecution. Mr Smith submitted there was no case to answer. All Detective Bain proved was that at the late Forbury races he saw nine gentlemen, whose names he had mentioned, each pay a sum of £1 to one of their number — Mr Matheson ; that this took place just about 10 minutes before a race called the Publicans' Handicap was about to be run ; and that this money was held by Mr Matheson. What became of it afterwards he could not tell; but after the race was run he saw Mr Matheson and Mr Spedding go down to the booth below the stand and some money pass between them. Now that surely did not prove the offence charged. There was not one syllable of evidence to show that the money which was paid by each of the defendants was in connection with the race that was about to take place. His Worship : Does that matter? Mr Smith : I submit it does, your Worship. His Worship : So long as it was a sweepstake it does not matter.

Mr Smith : He does not show for what that money was paid. He has not said that one of these gentlemen uttered a syllable to the effect that that money was to be paid over to the holder of the winning number in the next ensuing or any other races. His Worship said that what they had been seen to do might be taken into consideration with surrounding circumstances which were known to exist.

Mr Smith : Your Worship cannot draw, inferences of that kind, I submit. It ought to be proved beyond a shadow of a doubt that the money was paid by these nine persons into a common receptacle for payment to any one of their number upon the result of a particular race — the race mentioned in the information — the Publicans' Handicap. Where is the evidence of that ? Is your Worship to draw the conclusion that the payment of the fund was to depend upon the result of the Forbury Handicap merely from the fact that it was paid into a common purse before the race ? I submit, with great deference to your Worship, that that would be a very violent inference to draw.

His Worship : It matters not if this were a sweepstake for that particular race or any other race, uor if it wove never completed. Mr Smith : But, your Worship, I submit that there is no evidence to show that tho ti misaction was of tho nature uf a sweepstake. The mere fact that some people pay money into a common purse proves nothing. That in only the first stop ; something more is required. I submit it is a violent and truly unwarrantable conclusion for any court of justice to come to, that that transaction was a lottery, in the absence of any proof whatever. If one of the persons concerned had said in the hearing of the witness that the money was to be appropriated for the person who drew the winning horse in the sweep referred to it would be a different matter,

, His Worship : What was to be done with the money seemed so palpable that Detective 3?ain seemed to understand the affair thoroughly. Mr Smith : Your Worship, it would be a very dangerous thing for courts of justico to see through the eyes of detectives. We all know that the policeman's theory is that a man is guilty until proved innocent. His Worship : Mr Watson did not seem to think it necessary to explain what it was he wanted Detective Bain to be a partner in. Mr Smith : Mr Watson did not . go far enough to show what it was he invited Mr Bain to take part in. ' ■ His Worship : I do not agree that positive proof is necessary. If it were, I must say that in 50 per cent, of the cases brought into Court the parties would get off. Mr Smith : I can only say that that would be a desirable result when the law attempted to be enforced is as iniquitous as this one. Of course your Worship is not the maker, but simply the administrator of this law. I think your Worship appears rather to be straining the law against the accused than requiring that amplitude of proof which ought to be given where an attempt is made to enforce a law which on the face of it is exceedingly rigid, and interferes with what the people consider perfectly lawful and innocent amusements of the community. His Worship : I think it is fair to get at it this way: supposing I saw what was being done, as Detective Bain did, could I have any doubt as to the nature of the transaction ?

Mr Smith : I submit there is only ground for suspecting that a sweep was arranged. There is only ground for what is called the " policeman's suspicion." All I admit is perhaps a suspicion of the strongest character, but I submit that is not the proof required to establish a criminal charge, or quasi-criminal charge. All the evidence amounts to is simply a suspicion that the money subscribed was for what is called a sweep. And I would here take the opportunity of referring to the great inconsistencies of the Act. It professes to put down all species of gambling, and yet legalises the totalisator, which was the cause of such a scene of confusion at the last races. It appears to me that the whole force of the law is being aimed against these poor little sweeps. —(Laughter.) Mr Solomon's chief contention was that the case must fail on the ground that there was no proof that the money which passed between the parties had any reference to the Publicans' Handicap, Mr Fish-: There is not the slightest evidence to connect me with this sweepstake, your Worship. Referring to what Mr Smith says, I hold, with the greatest respect and deference to your Worship, that in the interpretation of a penal statute that gives your Worship the enormous power of sending a person to gaol for six months on a second offence, it would be a monstrous stretch to say that you are justified in convicting a person unless the case is thoroughly and entirely proved. It is not sufficient, in my opinion, for tne constable to say that he saw certain gentlemen take certain pieces of paper out of a hat, and subsequently saw money change hands. I most respectfully submit, your Worship, that my belief is that this Act was never intended to apply to sweeps. If your Worship is of opinion that it is_ so worded as to include transactions of this kind you are in duty bound to insist from the police, who carry out the provisions of this nefarious Act, the very strictest proof. His Worship objected to the Act being characterised as a nefarious one.

Mr Fish ; Very well ; I withdraw the remarks. I will say a drastic Act o£ this kind. His Worship : It makes no difference to me what the penalty may be. Mr Fish : I submit your Worship has got-no more than inferential proof. We might have been arranging a joint venture on the totalisator. which is legalised. '

His Worship: I .cannot see, why tickets should have been used in that case.

Mr Fish : But you have no right to dictate as to how we shall manage our affairs. It has been suggested to me that, in order to avoid taking part in the disgraceful scrimmages which your Worship, if you were out at the course, would have noticed about these totalisators, we might have been arranging to avoid eight or ten people applying for tickets. If there was the slightest chance of our transaction being one of that nature your Worship is bound to give the defendants the benefit of the doubt.

His Worship: You must remember this— that appearances are against you, and you can go into the box and give evidence. Mr Fish then submitted that there was no evidence against him. He was simply standing on the steps of the grand stand ; and, having paid, the price of admission, he had a right to stand where he liked. For all his Worship knew, he might have been taking observations for the purpose of working up a case, as well as Detective Bain.

Mr Denniston said his Worship had only to look at that morning's paper to see that Mr !Fish had admitted his offence.

Mr Fish : But newspapers cannot be received in evidence, for we know that sometimes, reports are incorrect. Mr Denniston ; Well then, we can call the reporter if necessary. His Worship said he had no doubt there was a case to answer. If he had one it would be, to quote Judge Johnston, a " fastidious doubt such as any man would not allow to influence him in the ordinary affairs of life."

Mr Smith : I submit, then, that your Worship should inflict the smallest penalty conceivable. Without using any expressions which are affronting or insulting to the Legislature, I will say that I consider this a most drastic measure. Here is an Act which makes a sweep illegal, and imposes a very severe penalty — a penalty up to £200, and upon a second offence the addition of six months' imprisonment— for taking part in what has been looked upon as an innocent and harmless amusement on the part of those who frequent racecourses. A more drastic measure could scare ly be conceived, and the absurdity of the legislation is shown on the face of the Act. When in the same breath the Legislature render illegal such an innocent practice as getting up a sweep, they actually legalise gambling in one of its worst forms — that of making it lawful for crowds of people to assemble round that machine called the. otalisator, and to scramble and to scufHc to put their money on it or to take it out. I submit that in the same Act which renders it illegal what has hitherto been looked upon as a harmless pastime, the Legislature show the greatest inconsistency by legalising gambling in a moat public manner. J further submit that the main purpose of this Act ought to be taken to be the suppression of that kind of gambling in public Avhich tends to demoralise the community. If your Worship will look at the title of the Act you will see that that is a fair inference to be drawn.

ICis Worship: Granted; professional and public gambling. Mr Smith : Gambling which tends to demoralise the community. J submit those persons who frequent racecourses may have fallen into a very pardonable error through ignorance of the law, for. they have understood that the innocent practice of getting up a. small sweep, stake, as might have been done in the present cfteo, was not intended to be put down by the

Legislature. We have seen in the local papers that so strongly are the police authorities convinced of the cruelty— if I may use the expression,—the cruel stringency of this law, that they have declined to put it in force— that they have shut their eyes. The Ohristchurch police have, with very commendable discretion, refused to see anything of the kind. Mr Denniston : They have no right to do so. Mr Smith : There aru many Acts which still disgrace the Statute-book of England, which any respectable policeman would be ashamed to put in force. This is one very much of that character. I do submit, without using any harsh expressions whatever, that I may strongly appeal to your Worship's sense of the clemency which is due to these persons, who have fallen into a very natural error. Understanding this Act as aiming only at that species of gambling which tends to demoralise because it is carried on in a public manner and in a way which tends to demoralise the people, no one would suppose that the Legislature Could have intended to put dowh"such an innocent practice as the getting up of these small sweepstakes ; and this being the first case heard under the Act, I submit that a small fine will meet the justice of the case'if your Worship thinks that on the whole the 'evidence is sufficient to establish a case at all.

Mr Solomon addressed the Court in a similar strain. ' Mr Fish admitted he had taken part in several sweeps during the day in question, but was not quite sure whether he was a parM"'^ the one charged in the information. v would therefore like to have more positive evidence from Detective Bain regarding himself.

Detective Bain, recalled, said he was sure Mr Fish said he had paid his money when the sweep in question was being got up. Mr Fish : I wish to explain why I am here. I desire to say that, occupying the position I do as a Justice of the Peace and as a member of Parliament, I should not under any circumstances, except those of a most exceptional nature, take it upon myself to break the law, and I submit I do not appear before you today in the character of a vulgar law-breaker. — (Laughter.) His Worship : I hope, Mr Fish, you are not going to lead me to believe that you wilfully broke the law '!

Mr Denniston: Mind, you will be fined i/ 50.

Mr Fish : If your Worship intends that as a hint, I shall take it, but I am very anxious to explain my position in the matter. I acted for a purpose.

His Worship : A justification of that kind is an exaggeration of the offence. Mr lish : Very well, I will say no more; I will take another opportunity of saying what I want to.

His Worship: I have already stated my opinion on the facts of the case. I have now simply to state that each person charged ia convicted of the offence. With regard to the penalty, I have no doubt the main object of the Legislature was to. put down what is generally known as prof essional gambling and public lotteries., The Legislature has given very large discretionary powers to the magistrate in regard, to the penalty, ranging from the smallest sum known to the law to the highest penalty of £200. Having to use that discretion, the highest penalty, would be for gross cases— such a case as apublic lottery. I think in a case of this sort it will be quite sufficient if I fix a very small penalty. I think a penalty of 40s each will meet the case.

Mr Denniston said there were a number of other charges of a similar nature, some against those who had already been convicted. Perhaps if the others pleaded guilty a similar fine would suffice in their cases.

His Worship said' the fcher charges aga st those already convicted would.be withdrawn, and those new defendants' against whom .charges were laid could plead guilty, and have a similar fine imposed upon them. Charges were then laid against Thomas Matheson, Robert Coghill, George Atkins, Sew Hoy, George Harrold, William Alves, Edward Devine, W. Thompson, George Hyde Campbell, and George Todd. All these defendants 'pleaded guilty, and were severally fined 40s and costs.