BOOKMAKER VERSUS JOCKEY CLUB.

Otago Witness, Issue 2556, 11 March 1903, Page 46

BOOKMAKER VERSUS JOCKEY CLUB.

At the Invercargill Magistrate's Court on Friday last Mr S. E. M'Oarthy, S.M.. gave judgment, in the ca=e Clark v. Loughlin, en the information charging the latter with wilfully trespassing on the Invorcargill Racecourse. The decision has been appealed against, and in delivering it his Worship said that defendant was notified that bookmakers were not to be allowed on the course, and his offer of £14- 14s for the right to bet on the course on the 2nd and 3rd January was refused. On the 2nd January defendant was on the course and was warned to leave, and on the 3rd he was there again. Continuing, his "Worship said : He was seen with book and pencil making entries in a book and receiving and paying- out money, though no one deposed to any particular bet or bets. However, I have no difficulty in inferring that he was plying his calling as a bookmaker. Defendant was on the 3rd January again warned by several acting on behalf of the club to leave the course, but refused to do so. Sergeant Bowden, who was armed with an authority to eject all persons found betting, signed by two of the trustees, also warned the defendant to leave the course. This authority had been signed as the result of an informal meeting of stewards hastily convened, without notice,^ and held on the ground whilst the races Vere in progress. Defendant left at the request of the sergeant, but returned within two minutes. On re-entering the gate the keeper told the defendant he was not allowed on the course, and endeavoured to forcibly prevent his entrance. Defendant, however, left his coat in the keeper's hands, and thus escaped any further interference from vhat source. After this forcible entry defendant was not again warned to leave, notwithstanding that he continued betting. Looking- at the shortness of the interval between defendant's exit from and re-entry on the course, as well as the manner of his entrance, and the fact that he continued betting after re-entry, I have no difficulty in finding that this exit was merely colourable, and so finding, the conclusion follows that, notwithstanding defendant's exit, his re-entry was not a fresh trespass,' but a continuance of one previously existing, always assuming, of course, that the original entry was itself a trespass. The defendant closed his case without calling any evidence. There are three- essential ingredients to be proved before a conviction can ensue : (a) a wilful trespass, (b) a warning to leave, (c) a neglect or refusal to leave after trespass. Now defendant, knowing that he belonged to a- clas3 whose presence was forbidden on the course, could not by the purchase of a ticket of admission entitle himself to enter. Assuming that he had such a ticket, and that the person selling knew him to be prohibited, yet defendant knew the limitations of that person's authority, and can acquire no rights by reason of his having exceeded that authority. The defendant's original entry was therefore a trespass ; subsequently thereto he received a warning to leave, and thereafter refused to leave. The exit being merely colourable does not break the continuity of the trespass. There is nothing in the contention that the information discloses two offences in that it lavs ownership in both the legal and equitable owners. Two ownerships are not disclosed. It was next contended that the authority to eject had not been signed as a result of a properly-constituted meeting of the club or the stewards thereof, and in any event was only signed by two of the trustees. The warning to leave could not, therefore, it was contended, be said to have been made by the owner or a person authorised by the owner. The answer to this contention is two-fold. First that long prior to the signature of the authority given to Sergeant Bowden the rlub had by resolution resolved to exclude bookmakers, and defendant had notice of this resolution. Secondly. defendant was a trespasser, and in conjunction with the third trustee and the members of the club the two trustee, who signed were in lawful occupation of the course — were, in fact, owners thereof. In such a case it does not lie in the mouth of i mere trespasser to challenge an owner as to the limitations existing between himself and his fellow owners. It was next contended that dpfendant had a riaht to remain on the eour'-e, notwithstanding the request to leave, by virtue of two training permits issued by the ;lub in his favour which were current on the day alleged in the information. Tho answer to this contention is that the defendant was not training racehorses, but- plying his calling as a bookmaker, a. thing he knew he had been forbidden to do. It was lastly contended tliat it was beyond the jurisdiction of the court to decide whether the defendant had a rieht to remain on the course by virtue of the training permits inasfhwli as a decision on that point involved a decision on a bona fide claim of right. Now the claim set up is the risrht to bet on a ■raeecom-so where the defendant well knew ho had been forbidden to bet, and in resooct of which tho only license he can -produce is a pprmit to train horses. The defendant misht with pqual show ot reason claim the right to enter a dwelling house b=cjiu=c it? owner had given hiir tho privilege of eol'-ecting the refuse in the back yard. As was nointed mt by Cockburn C. J. in Cornwall v. Sanders — "There must be <=orne show of reason in the claim, and it is not sufficient unleet. the defendant sati-fips the justices that thrre is a reasonaolo. around for hi assertion, of title." A conviction must follow, and, as the conduct- of defpndant has been not only intentionally defiant, but contrary to a promise made aft<»r the withdrawal of a former' prosecution, I shall inflict the maximum penalty of £10. nnd order the lefendant to pay the costs, £5 7s.