LAW REPORTS.

New Zealand Police Gazette, Volume XL, Issue 42, 20 October 1915, Page 709

LAW REPORTS.

(“New Zealand Law Reports,” Vol. xxxiv, page 868.) [S.G. In Banco. Wellington. (Stout, G.J.) —21st, 27th August; 11th September, 1915.]

Joe Tong v. Dew; Wong Yee v. Dew ; Cum Hoy v Dew; Ah Wong v. Dew.

Gaming—Keeping House for Sale of Pa-ha, poo Tickets — Keeping Common Gaming house—Sale of Tickets — Draw-

ing of Bank—Preliminaries of Game —“ Instruments of Gaming ” — Pa-ka-poo Tickets — Evidence—Gaming Act , 1908, Sections 2, 4 ( Stibsection 1), 5,7, 12, and 41. An occupier who permits his premises to be used for . the sale of pa-ka-poo tickets does not commit the offence of using his premises as a common gaming-house under the Gaming Act, 1908, section 4, subsection 1, but he would commit an offence under section 12 by reason of using the premises for the purposes of an illegal lottery. The side of pa-ka-poo tickets upon any premises (without evidence of a bank drawn upon such premises) is not a playing at pa-ka-poo. Joa Quick v. Cox (21 N.Z. L.R. 584; 4 Gaz. L.R. 299), notwithstanding later cases, fo lowed upon the point that where the evidence shows that a game has not been played, but only the preliminaries arranged for a game that may be played anywhere, there is no evidence under section 5 that the premises are kept for playing therein at any unlawful game. Pa-ka-poo tickets, and brushes, ink, and stamps used for marking pa-ka poo tickets, are not instruments of gaming within section 7. Tickets were described as pa-ka-poo tickets by a senior sergeant of police, who stated that in the course of his duty he had seized great numbers of like tickets and had obtained convictions upon them, but he was unable to say in what language they were or to decipher them. Held, That to prove they were pa-ka-poo tickets evidence should have been given as to the language upon them, and a translation of them made to the Court. Appeals from decisions of G. Cruickshank, Esq., S.M., sitting at Wellington. In each of these cases the appellant, a Chinaman, was charged on an information laid by the respondent, a senior sergeant of police, alleging that the appellant, being the occupier of certain premises, did use the same as a common gaming-house. The police gave evidence of the sale on the premises of tickets which they described as pa-ka-poo tickets, and, save in the case of Joe Tong, they produced to the Court certain marked tickets which bad teen sold to them. No evidence was given, however, of the language of the tickets, nor were the tickets interpreted. Unmarked tickets (or forms), with brushes, ink, and stamps used for marking tickets, were seized under search-warrant on each premises. The evidence showed that the bank was not drawn on the premises the subject of any charge. Counsel for the appellants called no evidence in any of the cases, but contended in each that (a) the game of pa-ka-poo was not played on the premises so as to make it a using of the premises for gaming puiposes, (b) the articles seized under the search-warrant were not instruments of gaming, and (c) the premises were not a gaming-house. The Magistrate stated in each case on appeal, “I did not call upon the defendant to enter upon any defence under section 12 of the Gaming Act, 1908, although I understood he was prepared to submit a separate defence under that section.”

In each case the Magistrate found against the appellant on all three points, and convicted each appellant. The appellants appealed. A sufficient reference to the material sections of the Gaming Act, 1908, will •be found in the judgment. The case of Joe Tong was argued on the 21st of August.

Jellicoe, for the appellant:— An unlawful game (section 5) is distinct from a lottery (sections 2 and 12) and from betting (section 36). I accept the judicial definition of pa-ka-poo in Lee Sun v. Conolly (24 N.Z. L.R. 553, at p. 554 ; 7'Gaz. L.R. 494, at p. 495). Admittedly pa-ka-poo is an unlawful game, but to constitute the premises a common gaming-house all the substantial elements of the play must take place on the premises, including the decision of the events upon which the players win or lose. Section 5 does not say “or any part of such game,” hence the special legislation as to lotteries and as to betting and wagering on events not at the place where the betting takes place. There is no evidence to show the contents of the tickets, nor what they conveyed or represented, nor what the marks were or meant. No “ steps,” if one may say so, were proved on which to found an inference. P< flowing the decision in Lee Sun v. Conolly (24 N.Z. L.R. 553, at p. 554; 7 Gaz. L.R. 494, at p. 495) the Court has to decide what on the evidence was the contract into which the parties entered. It would be what appeared on the face of the document. Since Rex v. Daye ([l9oß] 2 K.B. 333) anything may be a document. Here the document, not being produced, cannot be interpreted. The Magistrate, however, found some presumptive evidence under section 7. There “ other instruments ” must mean “ articles used in playing the game.” Further, there must be reasonable evidence as to the function of each instrument in playing the game. If the evidence shows only the separate contract with the bank such as is described in Lee Sun v. Conolly (24 N.Z. L.R. 553, at p. 554 ; 7 Gaz. L.R. 494, at p. 495) that document cannot be an “ instrument ” used in playing the game. [Stout, C.J.—What is described here is exactly what Williams, J., says takes place in marking tickets in pa-ka-poo.] That is so if there be any evidence of the contents of the ticket, but there is none. If only a blank form creating no contents at all is found (for that is the position here) it is insufficient.

[Stout, C.J.—lf dice are found that is sufficient.]

Yes, because they are dice. But here the prosecution must prove the “ tickets ” are instruments. The Magistrate found that tickets, brushes, ink-pots, and stamps found in the room were such as are used in playing the game. There is, in the definition of Williams, J., no reference to “ brushes, ink-pots, and stamps.” Further, it is not sworn that the tickets found were pa ka-poo tickets, and the defendant did not- admit that they were. The Court requires evidence that some particulars of the drawing in Chinese characters were written on the purchasers’ tickets, and that the marked tickets were mads to correspond with the bank ticket to entitle the purchaser to any sum of money. In Reg. v. Willoook and Others (54 J.P. 9), a case under 8 & 9 Viet., o. 109, in which the betting-house sections were practically the same as our sections, “ tickets ” were held not to be “instruments.” Even if the sale of tickets be assumed, a drawing, which by common consent was to be made in another place, would not suffice: See Reg. v. Li Chi and Others (2 N.S.W. L.R. 189, at p. 193). To purchase tickets in a sweep on a horse-race does not constitute the premises a common gaming-house, though it would amount to a lottery: Reg. v. Hobbs ([lß9B] 2 Q.B. 647). Neither the habitual user of a house for selling and issuing tickets in a pa-ka-poo drawing, nor for announcing the result, nor for the paying over or distribution of prizes is gaming under section 5, or a betting transaction under section 36 : See Bradford v. Dawson ([1897] 1 Q.B. 307). There must have been a use of the defendant’s house for playing an unlawful game: Reg. v. Davies ([1897] 2 Q.B. 199) ; Joe Tong and Others v. Cox (21 N.Z. L.R. 591, at p. 595 ; 4 Gaz. L.R. 400, at p. 402); Joe Quick v. Cox (21 N.Z. L.R. 584, at p. 588; 4 Gaz. L.R. 299, at p. 300); Joe Ping v. McGrath (25 N.Z. L.R. 892, at p. 895 ; 8 Gaz. L.R. 219, at p. 221) is conclusive in the defendant’s favour. There, as here, the question was whether the game was played. [Stout, C J.—At that time pa-ka-poo was not an unlawful game.] It may be, but that is not material here. That use was approved by Williams, J., in Lee Sun v. Conolly (24 N.Z. L.R. 553, at p. 554 ; 7 Gaz. L.R. 494, at p. 495), and the latter case by the Full Gourt in Joe Gee v. Williams (26 N.Z. L.R. 1016; 9 Gaz. 658). The decision in Jim Young v. Murphy (29 N.Z. L.R. 705; 12 Gaz. L.R. 687) in no way conflicts with that in Joe Ping v. McGrath (25 N.Z. L.R. 892; 8 Gaz. L.R. 219). Macassey, for the Crown : Section 4 defines the offence, and section 13 the occupier of the premises. The defendant is the occupier. [Jellicoe. —That is not disputed.] Section 9 declares pa-ka-poo a game of chance, and section 10 that a game of chance is an unlawful game. Section 10 was enacted as section 11 of the amending Act of 1907, and after the decision in Joe Ping v. McGrath (25 N.Z. L.R. 892; 8 Gaz. L.R. 219). We have merely to

show that pa-ka-poo was played on the premises. Joe Gee v. Williams (26 N.Z. L R. 1016 ; 9 Gaz. 658) shows that the method of playing is deemed to be a matter of common knowledge. [Stout, G.J.—The defendant relies on the point that the game was not played ; that there was a mere sale of tickets.] The decision of Cooper, J., in Jim Young v. Murphy (29 N.Z. L.R. 705; 12 Gaz. L.R. 687) applies here, and he considered Joe Quick v. Cox (21 N.Z. L.R. 584 ; 4 Gaz. L.R. 299) did not now apply. The words “ instruments of gaming ”in section 7 mean merely means by which a game is played.” The finding of the instruments here is presumptive evidence that pa-ka-poo was being played. I rely oa section 12, and ask you to remit the case back to the Magistrate under, the Justices of the Peace Act, 1908, section 296, or under the Inferior Courts Procedure Act, 1909. section 10.

[Stout, C.J.—But here the Magistrate expresslv abandoned procedure under the Gaming Act, 1908, section 12.] I rely upon the offence of selling a ticket under section 41 ( b ). [Stout, C.J.—That is a separate and distinct offence, and proceedings in respect of it are not open now.] There is power under the Justices of the Peace Act, 1908, section 296.

[Stout, C.J.—That section does not authorize the ordering of a new trial such as the Gourt of Criminal Appeal can.] Jellicoe in reply. Cur. adv. vult. On 27th August the Court heard argument upon the three other cases.

Jellicoe, for the several appellants : The mischief aimed at by section 5 is the user of a house for (i) an unlawful game, (ii) a game dependent on chance or lot, and (iii) a game dependent on betting. Compare Reg. v. Davies ([1897] 2 Q.B. 199). [Stout, C.J.—No. (iii) can be eliminated.] Where the event on which a game turns is determined by a drawing it is doubtful if the game is within section 5. In Young v. Murphy (29 N.Z. L.R. 705; 12 Gaz. L.R. 687) Cooper, J., suggested that Joe Quick v. Cox (21 N.Z. L.R. 584; 4 Gaz. L.R. 299) did not now apply, and left a doubt as to what the common law of pa-ka-poo really was, and suggested that sections 9 and 10 were enacted by way of amendment. The Gaming and Lotteries Act, 1881, section 10 (upon which Joe Quick v. Cox (21 N.Z. L.R. 534 ; 4 Gaz. L.R. 299) was decided), created a different offence, which was punishable in a different way. This was pointed out in Lee Sun v. Conolly (24 N.Z. L.R. 553, at p. 557 ; 7 Gaz. L.R. 494, at p. 496), where Williams, J., approved Joe Quick v. Cox (21 N.Z. L.R. 581 ; 4 Gaz. L R. 299), Apart from the Gaming Act, 1908, sections 9 and 10, a house used for playing pa-ka-poo would both before and since the present Act certainly be a common gaming-house as defined by Smith, J., in Jenks v. Turpin (13 Q.B.D. 505, at p. 530), and it did not require sections 9 and 10 to tell us so. Sections 9 and 10 create no new offence. The judicial description of the game in Lee Sun v. Conolly (24 N.Z. L.R. 553, at p. 554; 7 Gaz. L.R. 494, at p. 495) involves (a) tickets, (b) a contract or bet created by each ticket, and (c) a general drawing. In New Zealand in more than one case pa-ka-poo has been held to be a lottery on account of these three elements. Here what is alleged is a scheme by which prizes are won or lost by the chance of drawing. Lee Sun v. Conolly (24 N.Z. L.R. 553 ; 7 Gaz. L.R. 494) was decided under the lottery section (section 18) of the Gaming and Lotteries Aot, 1881: compare the Gaming Act, 1908, section 41. The proceedings to-day are, however, under the Gaming Act, 1908, section 5, and in Lee Sun v. Conolly (Ibid. at p. 558; ibid, at p. 497) Williams, J., doubted whether the man could have been properly convicted of playing the game when what he did was simply to sell tickets as agent. It was decided by the Full Court in Victoria that pa-ka-poo was a lottery—Ah Sue v. Call (12 V. L.R. 178, at p. 181) ; see also Reg. v. Li Chi and Others (2 N.S.W. L.R. 189, at p. 192) —and the same thing would be decided in England since Reg. v. Hobbs ([lß9B] 2 Q.B. 647, at p. 657), and has been decided in New Zealand in terms in several cases : Joe Gee v. Williams (26 N.Z. L.R. 1016, at p. 1023; 9 Gaz. L.R. 658, at p. 661). Here what is proved is simply a lottery, and it falls within the lottery sections of the Act and not within section 5. Gleeson v. Yee Kea (18 V. L.R. 698) is distinguishable, per Stout, C.J., in Joe Ping v. McGrath (25 N.Z. L.R. 892, at p. 895; 8 Gaz. L.R. 219, at p. 221). The test in Lee Sun v. Conolly (24 N.Z. L.R. 553; 7 Gaz. L.R. 494) is, Was there evidence that a ticket was obtained for any scheme conducted in the manner described by Williams, J., in that case? Young v. Murphy (29 N.Z. L.R. 705 ; 12 Gaz. L.R. 687) was under section 12, and if anything regarding the effect of section 5 can be spelt o"ut of it, which I deny, it was hot necessary for the decision in that case, and Cooper, J., must he understood as referring to houses dealt with by section 12 as distinguished from those subject to the

other sections. To bring a case within section 5 there must be evidence that the event which determines whether the players win or lose was decided or to be decided on the premises. A step in the game is not the unlawful game: Joe Ping v. McGrath (25 N.Z. L.R. 892, at p. 895; 8 Gsz, L.R. 219, at p. 221); Lee Sun v. Conolly (24 N.Z. L.R. 553 ; 7 Gaz. L.R. 494). A sale of tickets is an act apart from the drawing (see section 41), and is so recognized by the Imperial legislation as to using a house for giving information as to whether prizes were won or not, and for payment or distribution of prizes. See also Bradford v. Dawson ([1897] 1 Q.B. 307) and Joe Quick v. Cox (21 N.Z. L.R. 584 ; 4 Gaz. L.R. 299). Betting slips or tickets are not instruments of gaming : Ridgeway v. Farmdale ([1892] 2 Q.B. 309); Lester v. Quested (66 J.P. 54); Hanley v. Scarborough Justices (48 J.P. 457.) ; Bonnar v. Walker (60 J.P. 135). Macassey, for the Crown

Joe Quick v. Cox (21 N.Z. L.R. 584 ; 4 Gaz. L.R. 299), and Joe Ping v. McGrath (25 N.Z. L.R. 892; 8 Gaz. L.R. 219), are not authorities since the amendments of 1907 now represented by sections 10 and 12. [Stout, C.J. —The defendants say, assuming it was an unlawful game, it was not played.] I rely on section 7. [Stout, C.J. — Could the game have been played with the instruments if they were not sufficient to finish the game?] It is not necessary to finish. There is ample evidence to show pa-ka-poo was being played. [Stout, C.J.—Assuming pa-ka-poo tickets were sold there was no interpreter to say what they were.] Jellicoe in reply. Cur. adv. vult. Stout, C.J.: —

The appellant was charged that, being the occupier of premises in Haining Street, in the City of Wellington, ha did, on the 12th of April, use the same as a common gaminghouse. This is an information, therefore, under section 4, subsection 1, of the Gaming Act, 1908, the material part of which is as follows : “ Every person who, being the . , .

occupier ... of any premises, . . . uses the same as a common gaming-house ... is liable to a fine,” &o, A gaming-house is described in section 2as a betting-house, and any premises where any lottery promoted in New Zealand or any part of the business of operations connected with any lottery promoted elsewhere than in New Zealand is conducted. The charge was that there was conducted in the house a game called pa-ka-poo. Pa-ka-poo has been declared an unlawful game, and if it had been proved that there was such a game conducted in the house that would have been proof that the house was a gaminghouse.

The evidence, however, did not go that length. All that was proved was that what might be termed the initiation of a game which might never have been concluded was commenced by the sale of pa-ka-poo tickets to several persons. The game was not played in the house. Pa-ka-poo has been held to be a lottery, and section 12 says, “ Any premises occupied, kept, or used for the purposes of an illegal lottery or a proposed illegal lottery (whether the said lottery is promoted in New Zealand or elsewhere) shall be deemed and taken to be a common gaming-house within the provisions of the Gaming Acts.” There was ample evidence before the Court that this pa-ka-poo lottery was commenced and tickets sold for it in this house of the appellant. Unfortunately, however, for some reason not disclosed in the proceedings, the Magistrate did not deal with the case under this section 12. It is expressly stated in the case, “ I did not call upon the defendants to enter upon any defence under section 12 of the Gaming Act, though I understood he was prepared to submit a separate defence under that section.”

This cam must therefore be determined as if section 12 was not in the statute. What evidence, therefore, was there that the game was played in the house ? In my opinion there is no evidence that the game was played in the house. All the evidence amounts to is, pave what I shall state hereafter about the provisions of the sth and 7th sections of the Act, that tickets for a lottery were sold in the appellant’s house. Reliance, however, was placed upon section 5 and section 7of the statute. Section 5 only says that “in default of other evidence ... it shall be sufficient ... to prove that such premises are kept or used for playing therein at any unlawful game, or that a bank is kept there by one or more of the players exclusively of the others,” &e.

Now, as to section 5, the game was not played at in the house, and there was no evidence that there was any bank. This case can, therefore, not come under section 5. As to section 7, i t says, “ Where any cards, dice, balls, counters, tables, or other instruments of gaming used in playing any unlawful game are found in any premises suspected to be used as a common gaming-house or place for gaming, and entered under a warrant, . . . it shall be evidence, until

the contrary is proved, that such premises are used as a common gaming-house. Now, there was no evidence that any things found in the house were instruments of playing the pa-ka-poo game. All that was found in the house was that there were instruments for issuing tickets, and even these were not strictly proven as they should have been, as there was no evidence as to what language the tickets found were in, nor any translation made before the Court of those tickets. What was found in the house was consistent with what was observed in the house —namely, the sale of tickets for a lottery, In ray opinion what was said in Joe Quick v. Cox (21 N.Z. L.R. 584; 4 Gaz. L.R. 299) still applies. There is nothing in the several cases that have been decided in New Zealand since that case showing that, if a game is not played in a house but only the preliminaries arranged for a game that may be played somewhere, the evidence is complete of the offence of keeping a gaming-house unless reliance is placed on section 12, and, as I have already stated, that section cannot be invoked so far as this decision is concerned.

I am therefore of opinion that the conviction cannot be sustained. I have already pointed out that it could have been sustained if reliance had been placed on section 12, and there was ample evidence to convict under section 12, but for some reason or other that course was not adopted. I may also point out that section 41 also provides for the punishment of those who establish, commence, or are partners in any lottery or any scheme, &c., by which prizes, whether of money or anything else, are gained, drawn for, thrown, or computed for by lot, dice, or any other mode of chance, or of any person who sells or disposes of any tickets, &c., in such lottery or manages a lottery by a fine not exceeding £2OO. No information seems to have been laid under that section, and as section 12 was not invoked I am of opinion the conviction must be quashed. The other cases of Wong Yee, Cum Hoy, and Ab Wong, all against the same respondent Dew, are not different from the case of Joe Tong, and therefore all those conyictions must also be quashed. As the proceedings were by the police I shall not allow any costs.

Convictions quashed. Solicitor for the appellants: E. G. Jellicoe (Wellington). Solicitor for the respondent: The Crown Law Office (Wellington).

(“ New Zealand Law Reports,” Vol. xxxiv, page 902.)

[S.C. Criminal Sittings. Napier.-—(Stout, C.J.)— lst September, 1915.] Rex v. Piri Hira Hoani.

Criminal Law—False Pretences—Money repayable on Date to be fixed by Svirit of Dead Man Prisoner’s knowledge of Spirit’s Intentions—Attempted False Pretences — Spirit to cause Death if Money not given—Whether Misrepresentation of Present Fact—lmplication of Present Power to communicate with Spirits—Crimes Act, 1908, Sections 251, 252, and 253. An indictment contained one count for obtaining money by false pretences, and two counts for attempting to obtain money by false pretences. The only evidence against the prisoner on the first count was that she had obtained money from a person on the understanding that she would return it on the day fixed for the purpose by the spirit of the lender’s dead father. On the two other counts the evidence was that the prisoner asked two persons to give her money, and said that the spirit of their dead father would cause them to die if the money was not given. Held, That the case should not be withdrawn from the jury, as it was open to them to find the prisoner guiloy—1. On the first count, if they considered that when she received the money she had made up her mind that the spirit of the dead man would never direct her to return the money. 2. On the second and third counts, because, though the statement regarding the spirit of the dead man was not a representation of fact either past or present, the representation by the accused that she had power to communicate with his spirit would be such a representation, and if found by the jury to be implied in the prisoner’s statement and to be false would be a false pretence. Reg. v. Lawrence (36 L.T. 404) and Reg. v. Giles (L.. & 0. 502 ; 34 L.J. M.C. 50) followed on the second point. Ik this case there was one charge against the accused of obtaining money by false pretences, and two charges of

attempting to obtain money by false pretences. The charges were set out in tbe indictment as follows :

“1. That Piri Hiia Hoani did, during the months of April, May, and June, 1915, at Westsbore, Napier, in the Provincial District of Hawke’s Bay, obtain from Mary Brown, daughter of one Henare Pohto (deceased), divers sums of money, amounting in all to the sum of £l6l 165., by falsely, knowingly, and fraudulently pretending from time to time to the said Mary Brown that the spirit of the said Henare Pohio bad f-ad that the said Mary Brown must pay to the said Piri H'ra Hoani the said moneys as required by the said Piri Hira Hoani, and that if they were not paid the said Mary Brown and her children would die.

“ 2. That the said Piri Hira Hoani did, on or about the 33th day of May, 1915, at Peiane, in tbe said Provincial District of Hawke’s Bay, attempt to obtain tie sum of £9 from one Noti Rangi Moa, daughter of the said Henare Pohio, by falsely, knowingly, and with intent to defraud pretending to the said Noti Rangi Moa that the spirit of the said Henare Pohio bad said that if the said Noti Rangi Moa did not give her, the said Piri Hira Hoani, the sum of £9 she, the said Noti Rangi Moa, would die. “3. That the said Phi Hira Hoani d'd, on or about the 33th day of Mav, 1915, at Petane aforesaid, attempt to obtain from one Am Rika, daughter of the said Henare Pohio, the sum of £1 by falsely, knowingly, and with intent to defraud, pretending to the said Ani Rika that the spirit of the father of the said Ani Rika had said that if the said Ani Rika did not give her, the said Piii Hira Hoani, the said sum of £4 she, tne said Ani R ka, would die.” With recard to the first count of th 9 indictment, the evidence of Mary Brown, from whom the accused was alleged to have received the money, was to the effect that she had given it to the accused on the understanding that the latter would return it when the day for so doing was fixed by the spirit of the witness’s father. The accused said she would return it on that day. The evidence of Noti Rangi Moa as to the attempt alleged in the second count was as follows: “ The accused asked me to give her £9. Sne said that if I did not give it to her I would die, and that if I gave her the £9 I would not die. She said the spirit of the old man would cause me to die. She did not say where the spirit was. ... I did not give her any money.” Ani Rika gave evidence as to the attempt alleged in the third count as follows: “ The accused asked me to give her £4, and said that if I did not give it the spirit of the old man would cause me to die. Our father was the ‘ old man.’ I did not give her any money.” Dolan, for the accused

The evidence for the prosecution on the first count, even if true, does not disclose the off nee of obtaining money by false pretences, as the accused promised to return the money. The only offence disclosed is one of obtaining credit fraudulently, which is a lesser crime than obtaining goods by false pretences (see sections 252 and 253 of the Crimes Act, 1908). I submit that the jury should be directed to that effect. Further. I submit that the second and third counts ought to be withdrawn from the consideration of the jury, inasmuch as the evidence for the prosecution discloses no false pretence as defined by section 251. Tnere is no “ representation of a matter of fact either past or present.” The words used by the accused constituted merely a statement as to what would happen in the future. There was only a promissory pretence, and that is not within the statute. Cornßrd, for the Crown, was not called on.

Stout, C J. (orally): There is a good deal to be said for counsel’s contention that the evidence of trie prosecution on the first count does not disclose an offence of obtaining money by false pretences, but merely of obtaining credit fraudulently. I do no think, however, that I ought to direct the jury that there is no evidence of obtaining by false pretences. The jury may find that she got more than credit. She was to hold the goods till the spirit told her to return them. The jury may find, however, from a consideration of the whole of the evidence, that when the accused received the money she had made up her mind that the father’s spirit should never direct her to hand the money back, and that therefore she had no intention of returning it at all. If the jury think that the evidence proves such an intention then they may find the accused guilty of obtaining money by false pretences. Our Crimes Aet, moreover, gives the jury power to bring in a verdict on the lesser charge if they think the greater charge is not

proved, and I shall d : rect the jury that if they find that the money was to be paid back they should convict the accused of the minor offence only. As to the second and third counts, I would, but for one consideration, be inclined to withdraw both of these counts from the jury on the ground that there is no representation as to an existing fact. After considering, however, the English cases of Reg. v. Lawrence (36 L.T. 401) and Reg. v. Giles (L. &C. 502 ; 34 L.J. M.C. 50) lam of opinion tna - . I ought not to do so. Those cases show that it is a sufficient representation of an existing fact if the accused falselv represents that he or she has present power to communicate with spirits. If the jury think that the evidence shows that the accused impliedly mtda such a representation they may bring in a verdict of guilty on these two counts. I shall direct them to that effect. Solicitor for the Crown : Crown Solicitor (Napier). Solicitors for the prisoner; B. J. Dolan & Co. (Napier).