MAGISTRATE'S

Poverty Bay Standard, Volume IX, Issue 1017, 29 December 1881, Page 4

MAGISTRATE'S

■ 1 ’ >1 ■ fl 3; 7 7'"- ■ ■ ■ L- <.+■•’<■.-.i rt np|.ie;>re'l), Ho- "!; ('KiAndcd by . John Martin (de-B'.liAL-y). and F 11. Hr Mr Gordon Alien) Guilty ” to a eiiarge ou the 30'11 November P art isi a sweepstake. cmiH|HWt.)e Gaming and Lotteries Mr E. Shaw appeared on the police, and tersely exthe offence, which was comou the Hutt racecourse on the mentioned, -Detective Chrystal present, and 'was invited by Mr ■.yon to witness the drawing of a sweep Kn connection with -the Hack (Hurdle Eace, 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 question arose, what was a sweepstake? He (Mr Shaw) had seen in the latest edition of Webster’s Unabridged Dictionary that the word was defined as meaning one that swept the board. He (Mr Shaw) held the opinion that a sweepstake constituted a lottery under the Act. The defendants were to all intents partners to a money prize being drawn for by lot, although probably it would be argued for the defence that there was no communi y of interest. After a request by Mr Allen that the •evidence should be taken in full, which the Bench 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 as the Hack Hurdle Race took place for a money prize. Mr E. Pearce was next examined, and affirmed that 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 put 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 the 30th November last, and when in the enclosure of the grand stand he was invited by Mr Lyon to witness the drawing of a sweepstake joined in Uy the defendants. Sir William Fitzherbert drew No. 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 Fitzherbert. Mr Martin at the time remarked to the witness that they got up the sweep in order to have a test case, as they considered the Act only applied to large sweeps got up after the style of North’s. In answer to Mr Buckley, witness said he held the hat after the sweep was drawn, but that he did not consider himself in any way a party to the transaction. The sweep was drawn in the ordinary manner, By placing four pieces of paper in a hat, and each shareholder drawing one of the papers. Mr Pearce, re-called, said that 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 the charge was not of a • heinous nature, he would ask if a conviction was obtained that a nominal penalty be imposed, the result of the prosecution in that 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. It was aimed at gaming houses and large lotteries, where persons were unsuspectingly led to subscribe. He did not consider the alleged offence came within sections 18 and 19, and that the fact of a few gentlemen indulging in a harmless sweep did not 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 that the prosecution had failed to establish a case, on the ground that no partnership had been proved, and that the 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 it might be inferred that the defendants were partners. He quoted a number of authorities in support of this 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 one person reaps any benefit by the result of the transaction. Mr Fitzherbert .argued on broad grounds that the Act did not apply to the present charge. It was clearly intended to reach regularly organised sweeps, where the promoters, and those who disposed of the tickets, participated in the profits. Mr Gully

was of opinion that the facts of the case might have been admitted, as the gist lav 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.” It was an Act framed to protect the public against extensive lotteries, by which thay were frequently victimised. The Bench retired to consider their decision, and, after an absence of forty-three minutes, returned, and Mr Hardcastle delivered in writing the following judgment:—“The Magistrates think they must convict the defendants. They think the facts as alleged are proved, and that they are prohibited by law. They think that in eases like this persons likely to commit the prohibited act would think it prohibited by nothing but the law ; and, therefore, as the only deterrent is the money loss, that should also be especially substantial to deter. In this special case, they think that the 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 £lO each. From this decision the 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 bueiness '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 J. Young, H. Marks [who did not appear], E. Hankins, J. Mandel, A. King and J. Tinian. 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 the Gaming and Lotteries Act, 1880. Mr Grimstone, Secretary to the Racing Club, gave evidence to the 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 hat. Mr Mandel drew two pieces, and handed one to Mr Ziman. Mr Young asked if he would take their names down, and witness replied that he would. Mr King was standing near, but he, witness, did not see him draw anything from the hat. He saw Mr Hankins draw one of the pieces of paper. [A legal argument here ensued betwen Mr Shaw and counsel for the defence as to witness giving the 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 was no direct evidence against the defendants Hankins, King, and Ziman, he would leave it to the Bench to decide whether the information against them might be withdrawn. The Bench decided that 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 it with another person’ Mr Stafford having addressed the Court at some length, the Bench were of opinion that the facts of the case were established, but 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.