LAW REPORTS.

New Zealand Police Gazette, Volume XXVIII, Issue 14, 15 June 1904, Page 162

LAW REPORTS.

The King v. Boyle. (Times Law Reports, Vol. xx., p. 192.)

Lancaster Assizes) 1904. (Jelf, J.). j Jan. 27. Criminal law—Evidence—Prisoner’s evidence before the Magistrates—Admissibility at trial dence Act, 1898 ” (61 and 62 Viet., c. 36), s. 1. If a prisoner has elected to give evidence before the Magistrate and is committed for trial, the prosecution can at the trial, before closing their case, put in the evidence given by the prisoner on oath before the Magistrate.

Mary Ann Boyle, a married woman, was indicted for the wilful murder of her illegitimate child, John James Cleaver, aged four years and half. Mr. D’Arcy and Mr. McKeever appeared for the Crown ; and Mr. F. H. Mellor, K.C., and Mr. Overend Evans appeared for the prisoner. Before closing the case for the prosecution, counsel for the Crown proposed to put in the evidence given on oath by the prisoner herself before the committing Magistrates. Mr. Mellor, for the defence, objected to the admissibility of such evidence, on the ground that section 1 of “The Criminal Evidence Act, 1898,” enacted that the prisoner should be a competent, but not compellable, witness for the defence, and that the admission of such evidence against the will of the prisoner upon her trial before a jury would be to render her a compellable witness. Mr. Justice Jelf ruled that the statement so made by the prisoner was admissible, on the ground that it was a statement voluntarily made by her after the usual caution in the Police Court, and referred to the case of Reg. v. Bird (15 The Times L.R., 26), which Mr. Mellor had very properly cited, though it was in a certain measure against him. The jury found a verdict of guilty, but added a strong recommendation to mercy.

Thompson v. Mason. (Times Law Reports, Yol. xx., p. 298-9.) K.B. Div. (Lord Alverstone, C.J., Wills) 1904. and Kennedy, JJ.). j March 1. Gaming—Using house for unlawful gaming—Penny-in-the slot machine—Game of chance—“ Gaming-houses Act, 1854 ” (17 and 18 Viet., c. 38), s. 4. The appellant, who kept a tobacconist’s shop, had therein an automatic machine worked on the penny-in-the-slot system. A person desirous of working the machine put a penny into the slot and pulled down a spring by means of a knob, and then suddenly released the knob, whereupon the spring flew up and the penny was projected into one of five compartments. If the penny went into either of two compartments it was returned to the operator ; if it went into either of two other compartments it was retained by the machine ; and if it went into the fifth the operator received a ticket entitling him to a threepenny cigar or its value at his option. The Magistrate, who found that the game was one of chance and that it was not proved that the chances were alike favourable to all, convicted the appellant of having permitted his shop to be used for the purpose of unlawful gaming contrary to s. 4 of “ The Gaming-houses Act, 1854.” Held, that the conviction was right. This was a case stated by the Stipendiary Police Magistrate for Leeds, who had convicted the appellant Thompson for having, as the occupier of a shop in Leeds, unlawfully, knowingly, and wilfully permitted the shop to be opened, kept, and used by divers persons for the purpose of unlawful gaming. Prom the case it appeared that at the date of the alleged offence, and for some time prior thereto, the appellant carried on the business of a tobacconist in the shop in question, and kept therein for the use of persons who frequented the shop an automatic machine worked on the penny in the-slot system and supplied by the Northern Automatic Company (Limited). The working of the machine was described as follows : Having placed a penny in the slot the operator pulls down a spring by means of a knob and then suddenly releases the knob, whereupon the spring flies up and the penny is projected into one of five compartments. If in the course of its flight the penny finds its way into either of two compartments it is returned to the operator ; if it goes into either of two other compartments it is retained in the machine and is lost to the operator. If the penny falls into the fifth (the centre) compartment the operator receives a ticket entitling him to receive from the appellant a threepenny cigar or “its value” at his option.

It was contended for the appellant that the user of the machine constituted a game of skill as distinguished from a game of chance, or at all events was a game partly of skill, inasmuch as dexterity in the play could be acquired by practice, and in support of that contention it was established by evidence before the Magistrate that such dexterity could in fact be acquired to some extent by continuous practice with the machine or with machines of similar construction. The Magistrate, however, on this contention was of opinion that the judgment of the Lord Chief Justice in Fielding v. Turner (19 The Times L.R., 404; [1903] 1 K. 8., 867) was conclusive against the contention, seeing that the construction of the machine described in that case and its operation (so far as the mode of play was concerned) were in all respects similar to the construction and operation of the machine in use on the appellant’s premises. It was further contended for the appellant that even if the game played were one of chance, and not of skill, yet the gaming was not unlawful gaming, inasmuch as it was not proved that the chances were not alike favourable to the operator and to the appellant, and that the decision in Fielding v. Turner (supra) was adverse to the appellant in that case, because the chances of the game played were obviously not alike favourable to him and to the operator, there being four compartments (out of seven) in which the coin was lost to the operator. No evidence was offered by the appellant to prove that the construction and physical condition of the machine in his shop and the force and adjustment of the spring were such that it was an absolutely even chance that the penny would fall into any one of the five compartments, and the Magistrate was of opinion that (except on such an assumption of fact) it could not be established that the chances were alike favourable to the appellant and to the operator. If that assumption were made, the Magistrate was of opinion as a matter of arithmetic (though no evidence was tendered on the point) that the expectation of the value emerging from the machine on the insertion of a penny into the slot would on the average be M. + (Od. x 2) + (Id. x 2) - 5 - iaThat is to say, the result in the long-run, after a vast series of experiments by the same customer, would be that neither party would win or lose. There was, however, no proof that this assumption was in fact well-founded, and it was urged on behalf of the respondent that if indeed it were wellfounded (seeing that practice with the same machine would admittedly give an operator a greater chance of success than he would enjoy on the first occasion) it would follow that the user of the machine by different customers, many of whom frequently operated and so acquired dexterity, must in the long-run result in loss to the appellant, and it was contended that if this were so the machine could be retained by him only for the purpose of inducing custom by encouraging a spirit of gambling. It was further contended for the respondent that playing at any game of mere chance may amount to unlawful gaming, and reference was made to the observation of Mr. Justice Hawkins in Jenks v. Turpin (13 Q.8.D., at p. 513), that regard must be had to the illegality of the gaming, not merely to the illegality of the game, and it was also contended that the observations of the Court in Fielding v. Turner (supra) had reference to the facts of that particular case, and were not intended to lay down as a principle of law that there could be no unlawful gaming where the chances of the game as played were alike favourable to all the players, and that if it were otherwise a shopkeeper might habitually play pitch and toss with his customers. It was contended for the appellant that using the machine in the manner described did not amount to unlawful gaming. The Magistrate came to the conclusion that it was not proved that the chances were alike favourable to the appellant and to the operator, and that in any event the user of the machine in the circumstances mentioned constituted the offence charged; he accordingly convicted the appellant, and, as it was admittedly a test case, imposed a nominal penalty. The question for the opinion of the Court was whether the Magistrate was right in convicting the appellant. Mr. Danckwerts, K.C. (Mr. A. Llewelyn Davies with him), for the appellant, contended that no offence had been committed. To constitute a game an unlawful game within the definition given by Mr. Justice Hawkins in Jenks v. Turpin (supra) it must be one of mere chance. Whether a game was a game of mere chance or not was a question of fact, and as that had not been specifically found by the Magistrate the case should be sent back to him to be dealt with on that point. The facts differed materially from those in the case of Fielding v. Turner (supra), and that decision did not govern the present case. He further argued that the Magistrate was wrong in placing on the appellant the onus of proof that it was an absolutely even chance that the penny placed in the machine would fall into any one of the five compartments.

Mr. Montague Lush, K.C. (Mr. E. 0. Simpson with him), for the respondent, argued that the Magistrate had really found that the user of the machine was a game of mere chance. A mere scintilla of dexterity was not enough to take the game out of the category of those which were games of mere chance. That this was an unlawful game was decided in Fielding v. Turner (supra), and the appellant’s shop was a gaming-house within the statutes. The Lord Chief Justice, in giving judgment, said that if he thought that the Magistrate had taken the finding of the Court in Fielding v. Turner as a finding of fact binding upon him, or that he had declined to find the facts, they would send the case back to him. But that was not what the Magistrate had done. There being in this case elements of chance of the same kind as in Fielding v. Turner, it was contended before him that the case should be dismissed on the grounds (1) that there was more conclusive evidence of this being a game of skill than in Fielding v. Turner, and (2) that it was not proved that the chances were not alike favourable to the operator and to the appellant. The Magistrate referred to the opinion with reference to unlawful games laid down in Jenks v. Turpin. Then he refer, ed to the contention on behalf of the appellant. His finding was that it was not proved that the chances were alike favourable to the appellant and to the operator, and, though in one sense that might be stated as if the onus was on the defendant rather than on the prosecution, this really arose from the way in which the contention was stated. The Magistrate found that the use of the machine constituted the offence alleged, and His Lordship thought that he meant to find that this was a game of chance, that the element of skill alleged was of the same kind as in Fielding v. Turner, and that he did not come to the conclusion that it was a game of skill as distinguished from a game of chance. There was nothing in this case to turn the transaction from a game of chance into one of skill. Whether it was right to say that it was a mere game of chance it was not necessary to discuss here, though it was, in His Lordship’s opinion, chance and practically nothing but chance, and he declined to give any effect to the argument that because a man went on putting in pennies a number of times he might be more successful after a time. The other learned Judges agreed, and the appeal was accordingly dismissed.