"POOL" AND BILLIARDS 15

Dominion, Volume 4, Issue 1186, 22 July 1911, Page 13

"POOL" AND BILLIARDS 15

WHEN AND WHERE LEGAL ? SALOON-KEEPER WINS APPEALDECISION OF INTEREST. HIS, JOSHUA WILLIAMS'S VIEWS. A case of special interest to keepers of billiard-saloons was tho subject of decision in the Court of Appeal yesterday, when judgment was given in the appeal of John Jnekson, proprietor of the Great Northern Billiard Saloon,. Queen Street, Auckland, against a conviction for keeping a common gaming-kouso. The decision appealed against was that of Mr. K C. Cutten, S.M. It was admitted that certain games were played in the biiliard-room; that tho game usually played was th.6 ordinary gauio of English billiards; and that thero were such games as saooker pool, inuff pool, devil's pool, black pool, and general pool. Further, it was admitted—"All ihe games aro games of skill, combined with an element of chance of varying degree, but, in no case, does tho element of chanco approach in importance the element of skill." The magistrate had held an offence was proved on the ground that, in playing theso games, thero was money staked on the result of the games. The appeal was heard by tho Chief Justice (Sir Robert Stout), Sir Joshua Williams, and Justices Denniston, Edwards, and Chapman.. Mr. F. Earl appeared for tho appellant, and Mr. J. W. Salmond for the Crown. In the course of judgment, Sir Joshua Williams stated that the game most played was the ordinary game of English billiards. No stake was played for, but tho general custom was that the loser paid for the use of tho table. The games of pool were round games, in which a number of players took part, each staking such sum as the players mutually agreed upon. Out of the money so staked, the proprietor of tho room was paid tho prescribed charge for the table. The winner of the game- was entitled to the stakes, less the amount paid for the table. It was admitted by the informant that these games had been played iu public billiard-rooms in New Zealand for the past thirty-fivo years under the above conditions," and without challenge by any constituted authority till 1907. The question was whether, in the above circumstances, Jackson's billiard _ room was a common gaining house within the meaning of tho Gaming Act, 1908. Under our Act—on an information for keeping a

common gaining house—it was sufficient to prove that promises were- kept or uswl for playing at any unlawful game. So far as the present case was concerned, tho main amendment of the Act of 1881 (by tho Act of 1907) was the provision which now appeared as Section 10 of tho Act of 1908, which enacted that every game of chance was declared unlawful. His Honour thought there could be no doubt that tho torm "common gaming house" — as used in the statute—meant, prima facie, a gaming house which would have, been indictable at common law as a nuisance. Tho question then seemed ta be:—(1) Whether the premises in question would have been so indictable? (2) If they were not, was thero anything in the statute which made keeping them punishable, although keeping them might not havo bcon indictable as an offeu.ee at common law? After quoting various opinions as to what constituted a common gaming house, his Honour went on to say that, in an indictment at common law, it would bo for tho jury to find whethor, in the particular circumstances, a nuisance had been created. If, in the present case, the appellant had bepn indicted,at common law for (and the ■ facts as stated Hart beon : 'uh'c,bntr'adicte'd); .would it have been tho duty of the judge , to tell.tbo jury , that they must find a verdict of "guilty," irrespective of all other considerations than the fact that gaming (according to the technical meaning of tbo' word) had been carried on? Ho did not think so. The games that were played wero tho various forms of the ga:rio of billiards. Tho premises were licensed bv the proper authority for playing such games. The games, therefore, were not only not unlawful games, but games which tho law expressly recognised lawful. Ono class of games was not played for a stake at all. Other games yore played for a very trifling stake. Tho practice of playing in that way in licensed billiard rooms had been carried on for many years without objection by anyone. There was nothing from which it could bo inferred that playing in this way had been, during those years, or was now, detrimental to public morals. If the appellant had been indicted at common law tor a nuisance for keeping a common gaming house, his Honour did not think that there would have been .anything to justify a jury in convicting him. He arrived at this conclusion from k consideration of the judgment of tbo learned judges in Jonis v. Turpin. Our legislation differed from the English legislation in two respects only: Firstly; The substitution of the word "or" for "and" in Section 5 of our Act; and, secondly, Section 10 of our Act, which makes every game of chance au unlawful game. The result of the English legislation was given in "Stephen's Digest of Criminal I.aw" (fifth edition, page 143), where a common gaming-house was defined. The definition was as follows :—

"A common gaming-Tiouse is any louse, room, or place kept or used for tbo purposo of unlawful gaming therein, by any considerable number of persons. 'Gaming' means playing at •games either of cliance, or of mixed

• chanco and skill. "'Unlawful' gaming means gaming carried on in such a manner, or for such a length of time, or for such stakes (regard bein? had to the circumstances of the players) that it is likely to bo injurious to the morals of those who

j game. "All gaming is unlawful in which (1) a bank is kept by one or more of the players, exclusively of the others; or (2) in which any game is played, the chances of which art not alike favourable to all the players, including among the players the"banker or other persons by whom tho game is managed, or against whom tho other players stake, play, or bet." A note stated that the definition appeared to tho author to be established bv tho interpretation put by Jeaks v. Turpm on, niter alia, 17 and 18 Vict., c. 38, section 4. Xhat was, in effect, the same conclusion which he had drawn. If that conclusion was correct, tho premises now in question were not within the definition of a common gaming house. He thought Stephen's definition might be taken as authoritative. Kor did he think that our own legislation made these premises a common gaming house. Section 5 of our Act enacted that promises kept, or used, for playing at any unlawful gaino were deemed to be a common gaming house. Tho game played, however, must first be shown to bo unlawful. The different games of billiards were not unlawful unless they were made unlawful by Section 10 of the Act of 1008, as being games of chance. This section appeared in the Gaming and Lotteries Amendment Act, 1907. At the time of the passing of that Act, tho Criminal Code Act of 1893 was in force. Section 143 of tho Code made tho keeping of a common gaming house (as defined by the Act) au indictable offence punishable Ly two years' imprisonment, with hard labour. Section 105, which contained tho definition of a common gaming house, expressly drew a distinction between a game of chance, and a mixed game of chance and skill. The Legislature, at the time of the passing .of the Act of l!) 07, had expressly recognised— in flealins with a subject in pan' materia —that a mixed game of chance and skill was not a game of chance. There was no strict legal definition of a tramo of chance. The average man was (piit* as capab'e of deciding what was or was 'not a game of chance as the most learned lawyer. In ordinary language, billiards and pool were not games of chance. If anyone thought that they wore, let him go and play them for a stake, and ho would promptly discover his error. His Honour thought the appe-al should lie allowed. Justices Denniston. Edwards, and Chapman concurred with Sir Joshua Williams, tho Chief Justice dissented. The conviction was quashed'