RUNNING A POKER MACHINE.

Otago Witness, Issue 2330, 27 October 1898, Page 20

RUNNING A POKER MACHINE.

AN IMPORTANT DECISION.

At the Gore S.M. Court on Thursday Mr R. S. Hawkins, S.M., gave his decision (says the Mataura Ensign) in the case Police v. C. J. •Moloney, a charge of keeping a common gaming house as constituted by the fact of defendant's permitting the use on his premises oi a poker machine. — Deteotive M'LJrath for the police, and Mr W. 3?. Inder for defendant. Mr Hawkins gave judgment in the following terms : — " I have first to consider whether the use of this machine constituted an ' unlawful game.' It appears from the evidence, and from the practical working of the machine as it was displayed before me, that there is within it a kind of jointed cylinder of rows of cards, representing playing cards, arranged in lines of five, differing in value. The person using the machine puts a threepenny piece in a slot and presses down a perpendicular rod having a strong spring at its base and standing up out of the front part of the machine. In proportion to the sharpness and strength of the pressure on this rod is the number of vows in the cylinder of cards which are turned over until one row rests and appears behind the glass it the top and in front of the machine. Apparently, a practised operator might, by slight and stead pressure on the rod, make every row of cards on the cylinder appear in succession. 'A list of the values of different rows of cards is printed, above the glass show front. I conclude that this list is intended to be filled in at the will of the owner of the machine. In this instance it was used by a tobacconist, and lie put in various articles of his Irade — a cigarette, a cigar, etc. It may be tilled hi by any trader with the names of ai tides in hia trade, or it may be filled in with Ibp valuos of money. It is, to the customer or operator, a machine of pure chance. He may get a cigarette worth id, or a cigar alleged to be worth 6d. Whether it is a fair machine, whether the chances are equal to all, and whether they are or are not in favour to a great or any extent of the owner, there is no evidence to show. We may fairly assume that the owner is not intended to lose. This machine stood on defendant's counter, and any customers ■who went in and thought fit, put in their threepenny bit and overated the machine uistead of buying the goods they required in the usual way. There was no doubt the machine ,was there, and was kept there as an attraction to that very large class of thoughtless persons in the colonies who delight in anything savouring of a chance of getting a prize, and who 'have not the least conception of the enormotis odds that are against them getting anything at all for their hazard. There are quite enough tricks of this sort in trade already, and it is most desirable, if it be possible, to check such a development as this. It is pandering to an inherent folly or vice in the young, and is a mischievous departure from good, honest trading. It is clear that if a man were to set up .this machine on a racecourse, with money .values on the list, it would be held that he was carrying on a game, and I do not see that the substitution of goods for money makes it the less a game. The nearest approach to it is the practice of some licensed publicans of Jteeping dice in a dicebox to encourage their customers to play ' shilling in ' for drinks for the xiltimate benefit of the till. I have to consider next whether it is an ' unlawful ' game. In the case of Jenks and others v. Turpin (53, Law Journal, 161, 1884), to which I was referred by Detective M'Grath, Mr Justice Hawkins, after a most elaborate re,view of the laws against gaming, and after giving a list of the ' unlawful games,' among .which is roulette, adds ' and I incline to think any other game of mere chance ' ; and, after holding baccarat to be an unlawful game, he says : 'It is said that it is a game of modern invention. That may be, and, assuming it to be so, it is just what the Legislature intended to include in the phraseology of the 11th section of 33 H.M. VIII, c. 9, as "a new unlaw- j ful game thereafter to be invented." ' I de- . cide, therefore, that this is an unlawful I game. I must here refer to a state- ; ment made- by the solicitor for the de- ■ fence quoting from "Roscoe's Cnmin.U Evidence," and which was, much to my sur- j prise, to the effect that Mr Justice Hawkins had said that the magnitude of the stages involved would make a lawful game unlaw- j ful. lam glad to find that Mr .Justice Hawkins is not responsible for so heterodox j a dictum. He says at p. 171: 'I do not think excessive gaming on any game would "in itself make a game unlawful, tor excessive : gaming is not per se any longer a legal offence. It is not one at common law, and there now exists no statute against it.' What Mr Justice Hawkins did say was that it might be cogent evidence for a jury as to whether a house ,was a gaming house or not. I have now to consider whether the use of this machine, an unlawful game, in the defendant's shop constituted it a common gaming house. Mr Justice Hawkins makes the test of what is a common gaming house its indictability of common law. He Fays (at page 166) : ' I have come to the conclusion that in all its essential characteristics this is a common gaming house, and as such the keeper of it might have been indicted as for a nuisance at common law,' and it must be remembered that he used this test in deciding on an appeal under the statute 17 and 18 Vie, c. 38, section 7 : ' Any person who having the use of any house, room, or place, who shall open, keep, or use the same for the purpose of unlawful gaming being carried on therein,' and to deal completely with the offence in the statute, he puts a second question : ' Was it a gaining house kept for the purpose of, unlawful gaining in the sense of playing at unlawful games V ' — and this he answers in the affirmative. But that code was widely different from this. There it was clear that though there was a club for ordinary club purposes, a most important feature of that club was the gaining table in the rooms allotted solely to gaming and frequented nightly by gamblers. Here there is no approximation to such a state of things. There is not even proof that it was largely resorted to for the purpose of using the machine. I may say that I have considered the other cases to which I was referred, but do not find they assist me. But the procedure in this case is based on section 5 of ' The Gaming and Lotteries Act, 1881,' by which a search warrant may be granted on complaint before a justice that there is reason to suspect that any house, room, premises, or place is ' kept or used ' as a common gaming house, and that it is commonly reported and believed by the deponent to be so, and by section 4 the owner or keeper of the said faming house is made liable to a penalty. lad the act rested here I should have undoubtedly dismissed the information, but by Bection 5 it is made ' sufficient in support of his information that any house, room, premises, or place is 'a common gaming house or place for gaming to prove that such house, room, premises, or place is kept or used for playing therein at any unlawful game.'^ I may note that the words ' place for gaming ' in this section are not used in section 3 or section 4. This act, like most New Zealand acts, is full of contradictions and anomalies, but it

is clear that the words ' place for gaming ' in this section must be treated as surplusage. This section is a very strong one. By it it is sufficient to prove that such house, room, premises, or place is ' used ' for playi lg therein at any unlawful game. It is a very drastic provision. The evidence shows, and I find that the defendant did use his shop fo<playing therein an unlawful game, and I convict him of the offence. I shall inflict only a nominal penalty, under the circumstances — 10s and costs (9s) ; 13s 3d, money found in the box, to be confiscated ; machine to be destroyed forthwith." Mr Inder said what he had quoted regarding Mr Justice Hawkins's decision was from " Roscoe's Criminal Evidence," page 580, wherein an extract from one of Mr Justice Hawkins's decisions was rendered as follows: " Where the playing is, from the magnitude of the stake, excessive, and such is now commonly undei'stood by the term ' gaming,' it is considered by the law as an offence." Mr Hawkins : You are quoting from a text book, Mr Incl»r. A text book is always a most dangerous thing to quote from. In reply to the Bench, Mr Inder said he was considering the matter of an appeal. His client intended taking action against the vendors of the machine for misrepresentation, they having stated that cases against users of poker machines had been tried at Christchurch, but fell through, the machines having been returned to the owners. Probably his client would take that course instead of appealing.