R.M. COURT, WELLINGTON.

Daily Telegraph (Napier), Issue 3271, 27 December 1881, Page 4

R.M. COURT, WELLINGTON.

Ebiday, Dacamber 23,

(Before Messrs E. Hwdcastle, R.M., B. Toomath Hon. J. Johnston, _nd Le Grand Campbell.) " Sweeps."—Sir William Fifczherberfc (for whom Mr H. S. Eitzh«rberfc appeared), Horatio McCulloch Lyon (defended by Mr Gully), Hon. John Martin (defended by Mr Buckley), and F. H. B»U (defended by Mr Gordon Allen) pleaded " Not Guilty" to a charge that they did, on the 30th November ultimo, take part in a .weepstake, contrary to the Gaming and Lotteries Act, 1881. Mr E. Shaw appeared on behalf of the police, and tersely explained the offence, which was committed on the Hutt racecourse on the date mentioned. Detective Chrystal was present, and wa3 invited by Mr Lyon to witness the drawing of a sweep in connection with the Hack Hurdle Race, on the plea that they wished to promote a test case. Chrystal complied with the request, and subsequently reported the facts to his superior officer, which resulted in the present proceedings being instituted. Sir William Fitzherbert had, with the usual luck of a novice, won the pool. The information was laid under the 18th and 19th sections of the Act, and the que.tion arose, what was a sweepstake ? He (Mr Shaw) had seen in tho latest edition of Webster's Unabridged Dictionary the word was defined as one thafc swept the board. Ho (Mr Shaw) held the opinion that a sweeptake constituted a lottery under the Act. The defendants were to all intents partners to a money prize being drawn for by lot, although probably ifc would be argued for the defence that there was no community of interest. After a request by Mr Allan that the evidence should be taken down in full, which the Bemh did not consider necessary, the first witness, Mr A. E. Grimstone, Secretary of the Wellington Racing Club, was called. His evidence was merely to the effect that a race known a3 the Hack Hurdle Race took place for a money prize. Mr E. Pearce was next examined, and affirmed thafc a certain race on which the sweep was drawn was run, and that he as the Judge named the winner. In answer to a question pufc by Mr Shaw as to the proper definition of the term sweepstake, and to which objections were taken by Mr Buckley, but overruled, the witness explained the mode of getting up a sweep. Detective Chrystal deposed that he was on duty at the Hutt races on November 30 last, and when in fche enclosure of the grand stand he was invited by Mr Lyon to witness the drawing of a Bweepstake joined in by fche defendants. Sir William Fitzherbert drew Wo. 1, the Hon. Mr Martin, No 3 ; Mr Lyon, No. 4, for himself ; and No. 2 for Mr Bell. The amount of the stake was £2, which he was afterwards told was won by Sir William Eifczherberfc. Mr Martin afc the time remarked to witness thafc they got up fche sweep in order to have a test case, as they considered the Act only applied to large sweeps got up after the stylo of North's. In answer to Mr Buckley, witness said he held the hat after the sweep was drawn, but thafc he did nofc consider himself in any way a party to the transaction. The sweep was drawn in tho ordinary manner, by placing four pieces of paper in a hat, and «ach shareholder drawing one of the papers. Mr Pearce, re-called, said thafc the mode explained by the previous witness was what he usually understood to mean a sweepstake. This closed the case for the Crown. Mr Shaw expressed himself willing to accept the explanation that the offence was committed merely to create a test case, and as fche charge was nofc of a heinous nature, he would ask if a conviction was obtained thafc a nominal penalty be imposed, the result of the prosecutien in thafc case being a sufficient warning to the public. Mr Gordon Allen, on behalf of his client, argued that the Legislature never intended that the present Act should apply to ordinary sweeps on a racecourse. Ifc was aimed afc gaming houses and large lotteries, where persons were unsuspectingly led to subscribe. He did nofc consider the alleged offence came within sections 18 and 19, and thafc the fact of a few gentlemen indulging in a harmless sweep did nofc establish a partnership between them, because there was no consideration as defined by the Act. After citing several matters in support; of his view, Mr Allen was of opinion thafc the prosecution had failed to establish a case, on fche ground thafc no partnership had been proved, and thafc fche sweep had not been prompted by mutual hope of gain. Mr Buckley took exception to the information, and argued that no such construction could be placed on law by which ifc might be inferred thafc tho defendants were partners. He quoted a number of authorities in support of tUis view. The intention of the Act was clearly to meet circumstances of lotteries established after the example of North and Co. The present Gaming and Lotteries Act could not apply to an innocent sweep on a racecourse, where only ono person reaps any benefit by the result of the transaction. Mr Eitzherbert argued on broad grounds that the Act did not apply to the present; charge. Ifc was clearly intended to reach regularlyorganised sweeps, where the promoters, and those who disposed of the tickets, participated in fche profits. Mr Gully was of opinion that the facts of the case might have been admitted, as the gist lay in the construction put on the Act. He argued that the proper construction of the clause depended on the definition of the terms "establishing a lottery," and "or have an interest in." Ifc was an Act framed to protect the public against extensive lotteries, by which they were frequently victimised. The Bench retired to consider their decision, and after an absence of fortythree minutes, returned, and Mr Hardcastle delivered in writing fche following judgment: —" The Magistrates think they must convict the defendants. They think the facts as alleged are proved, and thafc they are prohibited by law. They think that in cases like this persons likely to commit tbe prohibited act would think it prohibited by nothing but the law ; and, therefore, as the only deterrent is the money loss, thafc should also be especially substantial to deter. In this special case they think that eminence of the position of the defendants, and the publicity and deliberation of the act, call for vindication of the law. The defendants are fined £10 each. Erom this decision tho Hon. J. Johnston dissents." Counsels for the several defendants then gave notice of appeal, and the Court adjourned till 2.30 p.m., when the business was resumed before the same Justices, except Mr Le Grand Campbell, who was absent. Similar charges for indulging in a sweepstake on the same date as in the previous case were then heard against John Young, Henry Marks (who did nofc appear), E. Hankins, Joseph Mandel, Alfred King and Jacob Ziman. Mr Stafford appeared for Hankins, Mr Gordon Allen for Ziman and Mr Edwards for Young. Mr E. Shaw again conducted the proceedings on behalf of the police, and explained that the informations were similar in character to the previous case, and were brought under sections 18 and 19 of fcho Gaming and Lotteries Act, 1880. Mr Grimstone, Secretary to the Racing Club, gave evidence to fche race in connection with which the sweep was drawn having been won by " Grand Duchess." Detective Benjamin deposed to having seen the defendants join in a sweep. Mr Young had his hat off and he saw each of the defendants draw small pieces of crumpled paper out of the hut. Mr Mandel drew two pieces, and handed ono to Mr Ziman. Mr Young asked if he would take their names down, and witness replied thafc ho would. Mr King was standing near, but he (witness) did nob sec him draw anything from tho hafc. ITo saw Mr Hankins draw ono of the pieces of paper. (A legal argument here ensued between Mr Shaw and counsel for the defence us to witness giving fche names of the other parties who joined in the sweep with Mr Young. The Bench ruled that the answer was not admissible). Mr Young admitted to him that seven persons went into the sweep, and he (Young) won the money. The defendant Mandel admitted to him (witness) that

he had joined in the sweep. Mr Shaw now stated that as there vra» now no direct evidence against the defendants Hankins, King, and Ziman, he would leave it to tho Bench to decide whether the information againtt them might be withdrawn. The Bench decided thafc no defence would be asked from them, and they accordingly left the Court. Mr Edwards pointed out that as the remarks Mr Young had made to Detective Benjamin, according to the latter's evidence, were in confidence, the words could not now be used against him. The objection was allowed, and the information against Young withdrawn. The only other defendant was Mandel, who had admitted having taken two tickets in the sweep, and was a partner in ifc with another person. Mr Stafford having addressed the court afc some length, fche Bench were of opinion that the facts of the case were established, but as the counsel for the Crown did not press for a heavy penalty, the charge against Mandel would be met by a fine of 40s, and costs of one witness, ss.