LAW REPORTS.

New Zealand Police Gazette, Volume XL, Issue 41, 13 October 1915, Page 693

LAW REPORTS.

(“ Timss Law Reports,” Vol. xxxi, page 589.) [K.B. Div. (Lord Reading, C.J., Darling and Lush, JJ.) — 21st July, 1915.] Minty v. Sylvester. Lotteries—Exercising Lottery—Distribution of Prizes among Audience at Theatre—Selection of Recipients—No Real Exercise of Judgment — Chance—lo and 11 William 111, c. 17, s. 2. Persons were induced to enter a theatre by an announcement that there would be a distribution of prizes among the audience, and the respondent, who was one of the performers, at the end of his performance handed a number of postal orders to two assistants and by calling out the words “ Right ” or “ Left ” caused the assistants to distribute them among the audience. Held, That as the respondent exercised no real judgment, but chose the recipients haphazard, he had committed the offence of exercising a lottery. The question in this case was whether the respondent, Eugene Sylvester, alias Gene Morrelle, had conducted a lottery. It arose on a case stated by the Doncaster Justices. Mr. Greer, K.C., and Mr. J. Goodland appeared for the appellant; and Mr. Grimwood Mears for the respondent. The appellant, a superintendent of police, preferred an information against the respondent for that he at the Empire Palace Theatre, Goldthorpe, unlawfully and publicly did exercise a lottery contrary to 10 and 11 Will. 111, c. 17. On 6th April, 1915, entertainments were given at the Empire Palace Theatre by a company in which the respondent appeared and described himself as “Silas C. Gordon, the Yankee Millionaire and Comedy Musician.” These performances were advertised by a poster. Admission to the theatre was by payment of 4d. or Bd. At the end of his performance the respondent announced to the audience that as he had a certain amount of wealth he would now distribute some of it. Thereupon two assistants, Cyril and Percy, were handed a number of postal orders by the respondent, and they went into the circle and the pit. As they were passing the seats the respondent would call out “Right, Cyril,” or “Right, Percy,” and the assistant named would hand a postal order for 6d. to the person nearest to him. As far as could be seen the respondent did not pay any special attention to the persons to whoni the orders were to be given. After a number of postal orders had been distributed, the respondent called out, “ Is there a bald-headed man there, Cyril?” A man in the audience bared his head, and the respondent said, “ Give him 4s. to buy a bottle of Tatcho.” This was done. The respondent then said, “Is there a woman there with a large family ?” A woman said, “ Yes, I have nine,” and she received a shilling for each child, one for herself, and “ one for the old man.” The respondent then asked, “Is there a man there with another man’s wife ? ” A man replied, “Yes, here.” The respondent then said, “Give her a shilling, a shilling for her husband, and give him 2s. for his cheek.” At the end of his performance the respondent announced that on the Thursday afternoon there would be a matinee for women only, when he would give away postal orders. At that performance a woman called out, “ Can you do anything for a widow ? ” After some conversation the respondent directed his assistant to give her 20s.

The Justices found that some persons visited the theatre in the hope of obtaining postal orders. The respondent said to the police that he did not think that he was committing an offence; he had helped many needy cases. He said, “I had better give it away like this than put up expensive posters. It helps to advertise my company.” The Magistrates dismissed the information, subject to the case stated. They found that the distribution was governed entirely by the respondent, who gave to whom he chose, and that the destination of the postal orders was not governed by chance. Mr. Greer submitted that the Justices were wrong. In Morris v. Blackman (2 H. and C. 912) the proprietor of a show announced that at the close of every performance he would distribute showers of presents, which would be given away impartially. In fact, he called out the numbers of various seats, and the presents were distributed to the occupants of those seats. The only difference between that case and this was that numbers were given, whereas in the present case the respondent gave directions. It would be absurd to call this charity ; it was a system. Willis v. Young (23 The Times L.R. 23; [1907] 1 K.B. 448) was also referred to. Mr. Mears said if there was evidence to support the finding that the destination of the orders was not governed by chance no offence had been committed. There was such evidence. The respondent exercised a judgment on each occasion, though his reason for choosing a particular person might not be known. He ha.d a momentary preference for particular persons. In the cp,se of the bald-headed man the money was given for a specific purpose. There was no element of chance. It was true that, as far as the recipients

were concerned, the matter was purely chance ; but that is not sufficient, for the distribution must be by chance also. If the respondent had closed his eyes and then called out “ Right,” the case would be one of chance. Mr. Justice Darling.—l suppose that philosophical people who had studied in Germany would say there is no such thing as chance. Mr. Mears said that caprice involved an exercise of the judgment. The Lord Chief Justice said that the question raised was whether the destination of the prizes was determined by chance. The main point was whether where people paid to enter a theatre and were induced to do so by the announcement that there would be a distribution of prizes it could be said that, even though the respondent exercised no real judgment and chose the recipients haphazard, there was a, determination by the exercise of judgment. In Morris v. Blackman {supra), where the distribution w.as to be made according to numbers called out by the proprietor, it was held to be a lottery, although it was clear that the mind of the proprietor must have been exercised in arriving at any particular number. In Willis v. Young {supra) the Court adopted very much the same view. The prosecution in that case was not under the statute of Will, ill, but under the Gaming Act, 1802. In Blyth v. Hulton (24 The Times L.R, 719) Lord Justice Yaughan Williams, in deciding that the transaction was a lottery, said : “ It seems to me to follow that they must have contemplated that the winner would be ascertained by the arbitrary, unfettered choice of the editor.” But, although the choice was arbitrary and unfettered, there must have been an exercise of the mind ; nevertheless the Court of Appeal held it was a lottery. Lord Justice Buckley put it in the same way. In Bartlett v. Parker ([1912] 2 K.B. 497) he said that where the destination of the prizes was determined by chance there was a lottery. The question was whether the Justices could as a matter of law come to the conclusion that this was not a distribution by chance. In his opinion it was not open to them. There fvas no evidence upon which they could conclude that the respondent had exercised any judgment in the matter. It was said that he had done so because at a certain moment he controlled the action of his assistants and selected oertain persons to the right or left of them. Had that been the evidence the case would have been different. All that they could gather was that at a certain point he called out “Right” or “Left,” and that the prizes were then given. It seemed to him to be the same thing as if the respondent had stood off the stage and had called out numbers. For these reasons he was of opinion that it was a distribution of prizes determined by chance and lottery. Before the first performance there had been no announcement, therefore no offence was committed ; bub the distribution on the second occasion had been announced beforehand. The case must go back to the Justices, with a direction to convict. Mr. Justice Darling and Mr. Justice Lush delivered judgments to the same effect. Solicitors —Messrs. Clements, Williams, and Co., for Mr. W. Vibart Dixon, Wakefield; Messrs. Speechly, Mumford, and Co,, for Mr. Frank Allen, Doncaster.

(“ Times Law Reports,” Yol. xxxi, page 617.) [Court ob 1 Criminal Appeal. (Lord Reading, G.J., Darling, Lush, JJ.) — 29th July, 1915.] Rex v. Smith. Criminal Laiv Murder Evidence of alleged similar Murders by Prisoner—Medical Evidence — Judge's Theory as to Cause of Death — Appeal. The appellant was indicted for murdering a woman by drowning her in a bath, and evidence was admitted of two other similar murders alleged to have been committed by the appellant. The appellant was convicted and he appealed on the grounds, (1) that there was no prima facie proof that he had committed the offence charged, (2) that the above evidence was inadmissible, (3) that a medical witness for the prosecution had been asked whether in his opinion the death of the woman was accidental, and (4) that the Judge at the trial had put before the jury a theory of his own as to the cause of the woman’s death and that the defence had no opportunity of dealing with it. Held, that on the facts there was a prima facie case for saying that the appellant had committed the offence charged, quite apart from the evidence in connection with the other cases, that the medical evidence objected to was admissible as it only related to hypothetical circumstances, and that, although it would have been better if the Judge had not put forward a theory of his own as to the cause of death, yet as the precise mode of killing was not material, the real question for the jury being whether the appellant had caused the death or not, the appeal must be dismissed. This was an appeal by George Joseph Smith against his conviction for the murder of Elizabeth Constance M'undy by drowning her in a bath.

Me. Marshall Hall, K.G., Mr. Montagna Shearman, and Mr. H. Grattan Bushe appeared ffir the appellant; Mr. Budkin, Mr. Travers Humphreys, and Mr. Cecil Whiteley for the Crown.

Mr. Marshall Hall said that one of the great difficulties that the case presented was due to the wide publicity which was given to it before the trial. Owing to that it was almost impossible for anybody to exclude from his mind entirely the prejudice created against the appellant. There was no prima facie case made against the appellant on the charge of the murder of Miss Mundy which entitled the prosecution to give in evidence the alleged facts of the deaths of Miss Burnham and Miss Lofty. The prosecution was bound to give prima facie proof of an act on the part of a prisoner which would be sufficient to warrant the Judge in leaving the case to the jury before it could call evidence of other facts to prove the nature of the act of the prisoner. In Makin v. Attorney-General of New South Wales (10 The Times L.R., 155; [1894] A.G., 57) there was ample evidence of an act by the accused which made the further evidence admissible. In this case Mr. Bodkin opened the evidence concerning the deaths of the women Burnham and Lofty. The real effect of that evidence was not to rebut the defence of accident, but to suggest that if the appellant was not guilty there had been a triple coincidence, which was most unlikely. In the famous poisoning case of Palmer there was no attempt to prove the other deaths. Even assuming that there was a prima facie case in law against the appellant the evidence should not have been admitted. There was no necessity for the prisoner to say anything beyond “ Not Guilty.” There was no defence indicated at all. If the prosecution failed to prove intention on the part of a person accused of murder there was no evidence of the crime charged. Evidence of other offences did not become admissible merely to prove such intention when the absence of it was not raised as a substantive defence. He wished, however, to press the submission that there was no prima facie case against the appellant. There wa3 no evidence of any physical act ; no evidence that the appellant was in the bathroom while the woman was in th.B bath—not even evidence that he had been seen near the bathroom about the time of the death.

Lord Reading.—lt must be remembered that it is only in very abnormal circumstances that people die in baths. Mr. Marshall Hall.—l do not agree, my Lord. It is a verv much more common thing than people think. Dr. Willcox admitted that in the course of his evidence. Continuing, counsel said that even if evidence was admissible of the deaths in baths of Burnham and Lofty, further evidence about the insurances effected on those women’s lives and the motive of the appellant to cause their deaths could not be admissible. The appellant had been tried practically for all three murders at the same time. The cumulative effect of that was irresistibly to the prejudice of the appellant.

Mr, Marshall Hall, continuing, objected that the question put to Dr. Willcox whether in his opinion death was accidental or not was inadmissible. That was the very question which had to be answered by the jury, and was not one for a witness at all. A doctor could give his opinion on a matter of medical science, but not on the real question at issue in the ease. The prosecution had put forward a particular theory of the manner in which death was caused, but in summing up the Judge had put to the jury a theory of his own with whioh he (Mr. Marshall Hall) as counsel for the defence had had no opportunity of dealing and of which there was no evidence. The Judge’s theory suggested the administration of a drug, but, speaking with some knowledge of drugs, he (Mr. Marshall Hall) did not know of the existence of any drug which would have the suggested effect. Unfortunately, also, the jury were allowed to know that the prisoner had served a term of imprisonment before that case ; they did not know for what offence, but undoubtedly they would be prejudiced against him by the fact which had been disclosed to them. Further, the JAdge had commented on the fact that the prisoner had not gone into the box, and it was a question how far such comment from a Judge was permissible. He referred to Rex v. Boyle and Merchant (30 The Times L.R., 521 ; [1914] 3K.8., 339) ; Perkins v. Jeffery (31 The Times L.R., 444 ; [1915] 2 K. 8., 702) ; Reg. v. Gray (4 F. and F., 1102); Rex v. Mason (10 Grim. App. Rep., 169) ; Rex v. Cox and Railton (1 The Times L.R., 181; 14 Q.8.D., 153) ; Bullivant v. Attorney-General of Victoria (17 The Times L.R., 457; [l9ol] A.C., 196). Mr. Bodkin, for the Crown, said that with regard to the evidence of other cases which could be given against a prisoner, he wished to refer the Court to the judgment in Makin’s case (14 New South Wales Rep., at pp. 18-19). Their Lordships conferred for an hour and asked Mr. Bodkin various questions on the evidence. Mr. Bodkin,submitted that there was proof that the prisoner, and he alone, had had the opportunity of causing the death by drowning ; that he had had a motive ; and that the medical evidence showed that death could not have been accidental. The Lord Chief Justice then delivered the judgment of the Court. The appellant, he said, was appealing on points of law, and they had had a powerful and able argument from

Mr. Marshall Hall on his behalf. The appellant had been charged with the murder of Miss Mundy, and evidence had been admitted of two other murders alleged to have been committed at later dates. Whether such evidence was admissible depended on the principles laid down in Makin’s case (10 The Times L.R., 155; [1894] A.C. at p. 65). It was unnecessary to decide whether such evidence would have been admissible in other circumstances, for they were satisfied that on the facts here there was a prima facie case for saying that the appellant had committed the offence charged, quite apart from the evidence in connection with the other cases. Tnat print, therefore, failed. As to whether the doctors should have been allowed to answer the question which was for the jury, when they looked at what tock place it was evident that the doctors were only asked what would be their view in certain hypothetical circumstances, and such a question was properly admissible. As to the complaint that the Judge below" had put forward a theory of his own about the cause of death, the real question for the jury was whether the prisoner had caused the death or not; the precise mode of killing was not material, though it would have been better had the Judge not made any suggestions of his own. His Lordship then dealt with the other points raised, and in each case said there was no ground for allowing the appeal, which was therefore dismissed.

Solicitors W. P. Davies ; the Director of Public Prosecutions.