No. 32.1 381 NEW ZEALAND POLICE GAZETTE. PUBLISHED BY AUTHORITY. WELLINGTON, WEDNESDAY, AUGUST 1G, 1911. NOTICE.— For instructions as to the manner in which reports are required to be furnished for the com- pilation of the Police Gazette see Gazette No. 1 of this year. The arrest of offenders described in the Police Gazette, or respecting whom crime reports have been forwarded for insertion in the Gazette, should be promptly notified by the member of the Force effecting the arrest. When notifying the arrest of persons charged with theft or suspected of theft, it should be stated whether the pro perty stolen, or any portion of it, has been recovered. A description of property supposed to be stolen, found in the possession of offenders, for which owners cannot be found, shall be furnished for insertion in the Gazette. All communications concerning this Gazette should be addressed to the Commissioner of Police, Wellington, and the envelope marked " For Gazette." Members of the Force in charge of out- stations will forward them direct. PERSONS WANTED. AUCKLAND.— Stewart Good, wanted on warrant for theft of registered letters : Offender is under sentence at Sydney for stealing from a dwelling. ( See Police Gazette, 1911, page 301.) ( 11/ 1355.) >, 7 WANGANUI.— 9th instant, that he may be induced to pay t £ 33 12s. arrears for maintenance of his children, inmates of f St. Mary's Industrial School, Nelson, Albert Treves, or J Trebes, age thirty - two, height 5 ft. 7 in., sawmill hand, • native of New Zealand, medium build, dark complexion and I hair, small brown spot between eyes, clean- shaved ; generally dressed in greenish - coloured suit and black hard hat. Inquiry is at the instance of the Education Department. LEVIN. — 6th ultimo, on warrant of commitment to Wellington Prison for seven days in default of paying £ 2 7s. 6d. fine and costs for procuring liquor for a prohibited person, Samuel Mason, age fifty- nine, height 5 ft. 5^ in., labourer, supposed native of New Zealand, medium build, sallow complexion, brown hair and moustache turning grey ; fond of drink. He is supposed to have gone to Mangaweka. WELLINGTON.— 20tb June last, on warrant for false pre- tences, G. Findlay ( may be fictitious), age about twenty- five, height 5 ft. 10 in. or 11 in., supposed canvasser, medium build, fair complexion and hair, blue eyes, thin features, clean- shaved ; dressed in dark- grey suit and black hard hat. Offender obtained 2s. 6d. ( six months' subscription in con- nection with the supply of the " New Idea " magazine) from Mrs. C. B. Bowie, Karaka Bay, by falsely representing that ha was an authorized agent of Gordon and Gotch, wholesale newsagents, & c. Other charges are pending. He is supposed to be pursuing a similar course of conduct in the South Island in connection with the supply of " Life " and other magazines published in Melbourne. WELLINGTON.— 26th April last, that he may be compelled to contribute towards the maintenance of his four children, in- mates of the Wellington Receiving Home, Aubrey Elling- ford, age thirty- eight, height 5 ft. 8 in., labourer, native of New Zealand, medium build, pale complexion, black hair turning grey, dark eyes, four front teeth missing; dressed in dark suit and cap. He was employed at the Stratford Railwav Works, and was last heard of at Inglewood. His father is living in Papanui Road, Christchurch. Inquiry j is at the instance of the Education Department. MOUNT COOK ( WELLINGTON).— 5th June last, that he may be compelled to provide for the maintenance of his children, inmates of the Wellington Receiving Home, William Henry Johnston, alias Johnson, age forty - eight, height 5 ft. 8 in., coach- painter, native of New Zealand, fresh complexion, brown hair turning grey, grey eyes, star, " N. E." and compass and square on left forearm, ring on left little finger; generally dressed in blue- serge suit and black hard hat. ( See Police Gazette, 1910, page 297.) Arrears to 5th June last, £ 97. Inquiry is at the instance of the Education Department. GBEYMOUTH,— 26th ultimo, on warrant of commitment to Hokitika Police Gaol for fourteen days in default of pay- ing £ 5 3s. 6d. fine and costs for selling adulterated milk, Harry Mumford, age about twenty- seven, height about 5ft. 6 in., dairyman, native of England, slight build, fair complexion, dark hair, clean shaved ; generally dressed in dark- tweed suit and black bard hat. TIMARU. — 5th instant, on warrant for wife- desertion, Alan Keen, age thirty- two, height 5 ft. 8in., farm labourer, native of Nelson, New Zealand, slight build, pale com- plexion, sickly appearance, dark hair, vision of right eye defective, reddish moustache only ; dressed in black suit, dark- tartan tie, and grey overcoat. Complainant, Margaret Keen, care of Mrs. Bell, Bank Street. 382 N E W Z E A L A N D P O L I C E G A Z E T T E. i AUG. 16 DUNEDIN.— 11th instant, that he may be compelled to support his child, an inmate of Caversham Industrial School, Hope Michael, age twenty- eight, height 5 ft. 9Jin., native of New Zealand, medium build, fair com- plexion, brown hair and moustache; fond of drink; generally dressed in brown or grey suit and black hard hat. He was last heard of in December, 1910, at Dunedin. Arrears to 9th instant, £ 19 4s. Inquiry is at the instance of the Education Department. DUNEDIN.— 4th April last, on warrant for committing a grossly indecent act in a public place, George Rackley, age fifty- three, height 5 ft. 5Jin., labourer, native of Eng- land, medium build, fresh complexion, brown hair, light- brown eyes, star, " G. R.," and wreath on right arm, " M. R.," anchor, cross, hearts, & c., on left arm. ( See Police Gazette, 1911, page 192.) INVERCARGILL. — William Spriggins, alias Mc- Alister, wanted on warrant for theft: Other charges are pending. ( See Police Gazette, 1911, page 368.) APPREHENSIONS, PERSONS FOUND, ETC. AUCKLAND.— Robert John Galbraith, default of fine and costs, has been arrested by Constable Anniss, Eden Ter- race. ( See Police Gazette, 1911, page 341.) AUCKLAND.-- Robert John Galbraith, cruelty to a horse, has been served with a summons by Constable Anniss, Eden Terrace polioe. ( See Police Gazette, 1911, page 341.) WANGANUI.— Lucinda McFadden, default of main- tenance of her ohildren, has been served with a notice of the maintenance order by Constable Minogue, Palmerston North polioe, on information supplied by Constable Lister, Marton police. ( See Police Gazette, 1910, page 460.) PETONE.— William McKinstry, breach of his pro- hibition order, has been served witn a summons by Con- stable Mullooly, Wellington police. ( See Police Gazette, 1910, page 192.) WELLINGTON.— T. Watson, deserting the s. s. " Otaki," has been arrested by Acting - Detective Carney, Lyttelton police. ( See Police Gazette, 1911, page 2.) CHRISTCHURCH.— Arthur Edward Lupton, failing to provide his wife and child with adequate maintenance, has been arrested by Constable Connor, Wanganui polioe, on in- formation supplied by Acting- Detective Mason, Wellington police. ( See Police Gazette, 1911, page 368.) ASHBURTON.— Charles Luxon, theft, has been arrested by Aoting- Detective Mason and Constable Steevens, Welling- ton police. ( See Police Gazette, 1911, page 342.) TIMARU.— William Recular Clausen, alias John- ston, failing to provide his wife and children with ade- quate maintenance, has been arrested by Constables Brien and McGregor, Oamaru police. He had assumed the name William Harris. ( See Police Gazette, 1911, page 352.) TIMARU. — Joseph Patrick Corcoran, failing to pro- vide his wife and children with adequate maintenance, has been arrested by Constable Hilliard, Glenavy police. ( See Police Gazette, 1911, pages 324 and 334.) INVERCARGILL.— James McMillan, default of fine and costs, has been arrested by Detectives Ward and Gibson, Christchurch police: Amount paid. ( See Police Gazette, 1911, page 352.) PROPERTY STOLEN. AUCKLAND.— About 30th June last, from the bedroom of JOHN MONCUR FORBES, Alexandra Hotel, a gentlemen's silver open- face Rotherham watch, with " J. M. F." on back of case ; value, £ 12 12s. Identifiable. WAIPUKURAU.— Between 7th and 21st ultimo, from the Tavistock Hotel, the property of HERBERT WHITE, auctioneer, a gentlemen's 24 in. frame black - enamelled Velox bicycle, free wheel, slightly upturned handles, black grips, plated rims, cable brake, baok wheel buckled, rat- trap pedals ; value, £ 7. Identifiable. OTAKI.— About 1st instant, from the Otaki Railway Road, the property of VICTOR NOBLE, dairy- farmer, a gentle- men's blaok- enamelled bioycle, No. 9180, E. Reynolds's transfer, upturned handles, rat- trap pedals; value, £ 5. Identifiable. LOWER HUTT.— 17th ultimo, from the dwelling of CHOW SING, gardener, a gentlemen's silver hunting English lever watch, No. 26087 ; and a gentlemen's silver hunting engine- turned watch, with dent in case : total value, £ 7 10s. Identifiable. TIMARU.— 3rd instant, from outside the Herald Office, the property of HENRY JOSEPH HEATHCOTE KENNEDY, manager for Fuller and Sons, a gentlemen's 83- gear Royal Swift bicycle, wide upturned handles, rat- trap pedals ; value, £ 6. Identifiable. INVERCARGILL.— About 8th instant, the shop of ALFRED MASTERS AND SON, Dee Street, was broken into, and the following article stolen therefrom: A gentlemen's double- breasted dark- brown checked- tweed motor- coat ( made to fit a person about 5 ft. 10 in. high), detachable green - leather lining, storm cuffs ; value, £ 8 18s. Identifiable. PROPERTY RECOVERED. » CHRISTCHURCH.— F. E. ORMANDY'S bicycle has been recovered : not stolen. ( See Police Gazette, 1911, page 344.) TIMARU.— DANIEL COSGROVE'S bicycle has been re- covered, and William Recular Clausen, alias Johnston, alias Harris, charged with the offence by Constables Brien and McGregor, Oamaru police. ( See Polite Gazette, 1910, page 485, and " Apprehensions," & c., this issue of Gazette.) DESERTERS FROM HIS MAJESTY'S SERVICE. • From H. M. S. " Pyramus." SYDNEY.— James Clarence Watt, age twenty- two, height 5 ft. 7 in., stoker, native of Hobart, Tasmania, dark- brown hair and eyes, fresh complexion, scar on right. forearm. Deserted 25th ultimo. Thomas Rumley, age twenty- nine, height 5 ft. 7 in., stoker, native of Ireland, dark- brown hair and eyes, dark oomplexion. Deserted 25th ultimo. A reward not exceeding £ 3 will be paid for the apprehen- sion of eaoh. MISSING. NAPIER.— Sinoe about 1895, Thomas Frank Spence, age forty- seven, height 5ft. 11 in., native of Scotland, strong build, dark complexion, dark curly hair ( probably now turn- ing grey); well educated ; addioted to drink. He was last heard of at Wellington, where he may be known to members of the legal profession. His father was a banker at Kirkwall, Orkney Isles. Inquiry by his brother, H. Spence, Sydney, through the Inspector of Polioe, Napier. MASTERTON. — Since 24th ultimo, James Kingdon, age twenty- eight, height about 5 ft. 5 in. or 6 in., wheelwright, native of New Zealand, slim build, sallow complexion, brown hair, clean- shaved ; fond of drink ; frequents billiard- rooms ; dressed in dark suit and green cap. Fears are entertained for his safety. Inquiry by his father, Samuel Kingdon, Queen Street. OTAKI.— Since 31st ultimo, Peter Smith, age about fifty- five, height about 5 ft. 5 in., fruiterer and confeotioner, native of Germany, thin build, pale complexion, haggard feeole appearance, very thin brown hair, weak eyes, wart or mole near right eye, high cheek- bones, one index finger de- formed, tattooed on both arms ; dressed in grey- tweed suit and light- felt hat. He was last heard of at Manakau. In- quiry by Charles Lindsey, bootmaker, Manakau. 383 N E W Z E A L A N D POLICE GAZETTE. i AUG. 16 WELLINGTON.— Since about 1901), John Edgar Hall, age about thirty- six, height about 5 ft. Tin., native of New Zealand, stout build, fresh inclined to bronzed oomplexion, brown hair, blue eyes, nose has been broken, erect gait, military appearance; a good fancy swimmer; fond of singing, dancing, am? the company of theatricals. He was last heard of at Auckland, at which time he was connected with the kauri- gum industry, and also with prospecting for gold in the northern part of Auckland Province. Inquiry by A. Hall, Police Department, Government Buildings. ( C. R. 11/ 330.) BLUFF.— Since 26th ultimo, Peter Neilsen, age twenty- seven, height 5 ft. 5 in., fisherman, native of Denmark, fair complexion and hair, blue eyes ; untidy appearanoe ; shabbily dressed. He is well known by the sobriquet " Little Peter" or " Peter the Dane." Fears are entertained for his safety. LIVERPOOL ( ENGLAND).— Inquiry is requested to ascertain the whereabouts of William Henry Young, age twenty- seven, labourer, native of England, thick- sec build, dark complexion, woman's bust on left forearm, portion of left little finger missing. He was last heard of in September, 1907, at Auckland, at which time and place he received cor- respondence addressed " Care of Post Office." Inquiry by George Young, 20 Arthur Street, Seaforth, through the Under- Secretary, Department of Internal Affairs, Welling- ton. ( 11/ 1593.) INQUIRIES, ETC., FROM OUTSIDE NEW ZEALAND. • MURWILLUMBAH ( NEW SOUTH WALES).— Inquiry is re- quested to ascertain the whereabouts of Frank Gelzinnis, age fifty- five, height over 6 ft., carpenter, dark- brown hair, reddish beard, slightly stooping gait. In May, 1910, he was employed at the Stratford- Ongarue Railway works. Inquiry by his wife, Anastasia Gelzinnis. ( 11/ 1628.) MISCELLANEOUS INFORMATION. Long- service Medals awarded. Long- service medals have been awarded in terms of Regu- lation No. 65 to the following members of the Force :— No. 800.— Sergeant William McNeely. No. 801.— Sergeant Frederick A. Waterman. No. 717.— Constable George Ludwig Rings. No. 797.— Constable James O'Halloran. No. 799.— Constable Donald McLeod. No. 802.— Constable Charles Henry Pratt. Appointments as Constables. 12th August, 1911. No. 1688.— McLennan, John. No. 1689.— Power, Michael. LAW REPORTS. (" New Zealand Law Reports," Vol. xxx, page 589.) [ S. C. IN BANCO. WANGANUI—( EDWARDS J.)— 21ST MARCH AND 13TH MAT. 1911.] HAYES V. BOURKE. Gaming—•" Hoop- la "—" Game of Chancc"— The Gaming Act, 1908, Section 8. The game of hoop- la ( as described in the judgment of Edwards, J.) is a game of chance. APPEAL on law and fact, under the Justices of the Peace Act, 1908, against a conviction of the appellant by William Kerr, Esq., Stipendiary Magistrate at Wanganui, of an offence under seotion eight of the Gaming Act, 1908. The facts and a description of the game hoop la appear from the judgment of Edwards, J. W. J. Treadwell for appellant. D. Hutton for respondent. Cur. adv. vult. EDWARDS, J.:— This is an appeal on law and fact, under the Justices of the Peace Act, 1908, against a conviotion of the appellant by William Kerr, Esq., Stipendiary Magistrate at Wanganui, of an offence under section eight of the Gaming Act, 1908— to wit, that the appellant, on the 29th day of September, 1910, in a public place, to wit, the Wanganui Raoecourse, did by means of a certain table and rings play at a game of chance " contrary to the form of the statute in such case made and provided " ( seotion 8, Gaming Act, 1908.) No objection bas been taken to the form of the informa- tion. The facts proved are that on the day charged in the information the appellant was playing upon the Wanganui Racecourse with such members of the public as chose to patronize him a game whioh he sa> s is called " hoop- la" in Wellington and Auckland. It is not immaterial to notice that this cannot be called a known game, and that it has no known rules. It is a species of amusement designed to extract small sums of money from the pockets of the foolish — principally the young and foolish— who are visitors to racecourses and other like places of public amusement. In this game, as the appellant played it, he, as the owner, was provided with a shallow box divided into compartments. In each compartment there was placed some article of fancy goods or cheap jewellery. The whole box was closed with a lid of glass. Upon the inner surface of the glass, above each compartment, there was painted a oirole. These oircles varied in size from a little over 1 in. to 2 in. in diameter. The smaller circles were generally near the edge of the glass, the larger ones nearer to the centre. The com- partments beneath the smaller circles contained the less- valuable articles. The box thus prepared was placed upon a stand from 18 in. to 2 ft. from the ground. The appellant, as owner of the game, was also provided with a number of rings of light substance, each of which weighed 3 drams. These rings were 2^ in. in diameter, except two, the diameter of which was 2^ in. Upon payment of the sum of 6d., four, and of Is., eight, of these rings were handed to the player. The game consisted of endeavouring to throw these rings upon the glass surface of the box so that the ring lay direotly over one of the circles painted upon the glass, show- ing the unpainted glass clear all round the outer edge of the ring. According to the evidence of Sergeant Bowden, the player stood at a mark about three yards distant from the box. The appellant says that the player was at liberty to stand as near to or as far from the box as be pleased, pro- vided he threw the ring and did not simply place it upon the glass. In my view it is immaterial which version is cor- rect. If it is material, I find as a fact that the sergeant's evidence is true as to what he saw done upon the Wanganui Raceoourse. There are no rules for such a pastime. The whole control is in the owner of the game, who may make his rules to suit himself at any time, even as the game is being played. Two contentions are raised on behalf of the appellant. First it is said that there is no evidence that the appellant was " playing or betting by way of wagering or gaming." " Gaming " is defined as playing any game, whether lawful or unlawful, for money or money's worth: Parsons v. Alex- ander ( 24 L. J. Q. B. 277), Fielding v. Turner ( [ 1903] 1 K. B. 867), Thompson v. Mason ( 20 T. L. R. 298), Roberts v. Harrison ( 25 T. L. R. 700). There is, in my opinion, no doubt that in the present case the appellant was playing by way of gaming. Then it is said that this is a game of skill, not a game of ohance, and that therefore the appellant does not oome within section 8 of the statute. For the pur- poses of this case I shall treat this question as one of faot, leaving expressly undecided the question as to whether or not a gp, me of mixed skill and chance is a game of chance within seotion eight. In Tollett v. Thomas ( L. R. 6 Q. B. 514) it was held by Cockburn, C. J., and Blackburn, Mellor, and Lush, JJ., that a game is a game of chanoe within 31 and 32 Vict., c. 52, s. 3 ( from which our section 8 is copied), if suoh game contains an element of ohance. It is, however, at least arguable whether by the context seotion 8 is not limited in its meaning to games of pure chance. It is in my opinion unnecessary, and if unnecessary oer- tainly undesirable, to express my opinion upon that point in the present case. It is in my opinion unnecessary, because I am satisfied upon the evidence before me that owing to the slippery nature of the glass, the lightness of the rings, the distance which players stood from the box, and the other surrounding circumstances, this game, as played by the appellant on the Wanganui Racecourse, was a game of pure ohance. It is within the bounds of possibility that if this game became a reoognized pastime, affording, like billiards, an opportunity for practice, a certain degree of skill might be attained by those who chose to practice it. But it is not a recognized game, and no one has an opportu- nity of practising it except upon such an occasion as that in the present oase. In these conditions the game is, in my opinion, a game of chance pure and simple. For these reasons I am of opinion that the decision of the Magistrate was right, and must be affirmed. The appeal is dismissed, with costs ten guineas. Conviction affirmed. Solicitors for the appellant: Barnicoat, Treadwell, and Gordon ( Wanganui.) Solicitors for the respondent: Marshall and Hutton ( Wa- nganui.) 384 N E W Z E A L A N D POLICE GAZETTE. i AUG. 16 (" New Zealand Law Reports," Vol. xxx, page 595.) [ S. C. IN BANCO. WELLINGTON—( COOPER, J.)-- 23RD DE- CEMBER, 1910, AND 4TH JANUARY, 1911.] BRIGHT V. THOMPSON. Licensinq — Application for License — Certificate of Fitness refused by Magistrate— Exercise of Discretion— Mandamus refused— The Licensing Act, 1908, Section 85. A Magistrate was applied to by an applicant for a license for a certificate of fitness under section 85 of the Licensing Act, 1908. After bearing the applicant's solicitor and evidence in support of the application he refused the certificate, upon the ground that the applicant's wife refused to reside with him, stating that he considered it " essential for the protection of the female servants, and in order that the house might be properly conduoted, that the licensee's wife should reside on the premises." The applicant applied to the Supreme Court for a man- damus directing the Magistrate to issue the certificate. Held, That the issue of the certificate was in the discre- tion of the Magistrate, and, as he had regularly heard and determined the application, mandamus could not issue. MOTION for mandamus to A. D. Thompson, Esq., S. M., at Palmerston North, directing him to issue to the plaintiff a certificate of fitness under section 85 of the Licensing Act, 1908. The Magistrate, after hearing the solicitor for the plaintiff in support oi the application, refused the certificate, upon the ground that the plaintiff's wife refusid to reside with him upon the hotel premises. Additional faots appear from the headnote and from the judgment of Cooper, J. Cur. adv. vult. COOPER, J.:— This is a motion for a mandamus to the defendant as Stipendiary Magistrate, Palmerston North, directing him to issue to the plaintiff a certificate of his fitness to hold the license of the Telegraph Hotel at Otaki. He applied for this certificate on the 25th of November, 1910, and the certificate was refused by the defendant after the defendant had heard the solicitor for the plaintiff and the evidence adduced by the plaintiff in support of his application. Under section 85 of the Licensing Act, 1908, an applicant for a license has, with his application, to deliver to the Clerk of the Licensing Committee testimonials as to his character and suitability for the particular premises applied for, accompanied by a certificate signed by a Magistrate, in the form in the Eighth Schedule to the Act, in respect to the fitness of the applicant to have a lioense. The certificate so prescribed is that the person applying is of good fame and reputation, and fit and proper to have granted to him a publican's license. There are two decisions of this Court upon this provision, both of them by Mr. Justioe Edwards. In Douglas v. Dyer ( 27 N. Z. L. R. 690 ; 10 Gaz. L. R. 647) His Honour held that it is the duty of a Magistrate, when an application for such a certificate is made to him, to hear the applicant and his witnesses, and that if he does not do so a mandamus will issue com- manding him to hear and determine in a proper manner the application, and if be does so in a proper manner he is under no obligation to state his reasons for refusing the certificate. In Martin v. Barton ( 11 G. L. R. 181) His Honour held that a Magistrate's decision as to the fitness of a person to hold a publican's license, if arrived at after an inquiry regularly and properly held, cannot be questioned in any proceeding whatever. In that case the Magistrate gave his reasons for refusing the certificate. Mr. Justice Edwards said, " In the present case the Magistrate has stated his reasons- The plaintiff's application is really a claim that I should review those reasons, and substitute myself for the Magistrate and deal with the case upon the merits. It is impossible that I can do so. There is no appeal from the decision of the Magistrate upon such a question ; nor, if that decision has been arrived at after an inquiry regularly and properly held, can it be questioned in any proceeding whatever." With this opinion I entirely agree. Mr. Young's contention is that the Magistrate, although he has regularly held an inquiry, has not exercised any dis- cretion in determining the application, but that, having held that the applicant was of good fame and reputation, he improperly refused the certificate because he followed, it is alleged, a general rule made, it is alleged, by him, that in no case would he grant a certificate of fitness to an unmarried man, or to a married man whose wife would not be resident in the hotel with the applicant. If a Magistrate, without taking into consideration the circumstances of a particular case, refused in that particular case a certificate merefy upon such a general rule, it may be that this Court would issue a mandamus directing him to hear and deter- mine the particular application upon its merits. This is not, however, the present case. Here, even taking the account put forward by the plaintiff of the proceedings before the Magistrate as a complete accurate account of what took place, the Magistrate did not state that in no case would he grant a certificate to a man of good fame and reputation merely because he was unmarried, or, if married, because his wife would not be resident in the hotel. According to the affidavit of the plaintiff's solicitor, what the Magistrate said was that he had made it a rule to refuse a certificate where the wife of the applicant would not reside in the hotel, except where there was exceptional circumstances. The affidavit of the Magistrate is, however, in my opinion, conclusive that he heard and determined the plaintiff's application upon its merits. The plaintiff is a married man of mature years. His wife was examined before the Magistrate, and she stated that she would not under any circumstances go to reside in the hotel at Otaki for the license of which the plaintiff was an applicant. The Magistrate states that he is Chairman of the Licensing Committee for the district in which the hotel is situate, that the license had been for some time held by a single man, and that the result had been unsatisfactory, and that he ( the Magistrate) considered ic " essential for the protection of the female servants, and in order that the house might be properly conducted, that the licensee's wife should reside on the premises, and that as the plaintiff's wife re- fused to do so he declined to grant the application." Now, the certificate which the Magistrate is required to give is not merely that the applicant is of good fame and reputa- tion, but that he is a fit and proper person to hold the license. This means that he is a suitable person to be licensee for the particular premises ( section 85, subsec- tion 1). What the Magistrate determined was that, because the applicant's wife definitely refused to reside in the hotel the applicant was not a suitable person to hold the license, although his fame and reputation were good. This was purely a matter for the Magistrate's discretion. He heard the application in a proper manner, ho considered it, and deter- mined it; and, to adopt the language of Mr. Justice Edwards in Martin v. Barton ( 11 G. L. R. 181), it is impossible that I can review these reasons, and substitute myself for the Magistrate and deal with the case upon its merits. The Magistrate | has already done so, and there is no appeal from his decision. The motion is dismissed, and there must be judgment for the defendant, with £ 7 7s. costs. Solicitors for the plaintiff: Page and Page ( Eketahuna). Solicitors for the defendant: The Crown Law Office ( Wel- lington). (" New Zealand Law Reports," Vol. xxx, page 673.) [ COURT OF APPEAL—( STOUT, C. J., WILLIAMS, J., DENNISTON, J., EDWARDS, J., COOPER, J., CHAPMAN, J.)— 10TH APRIL) 9TH MAY, 1911.] REX V. DA WE. Criminal Law— Manslaughter— Verdict—" Guilty " or " Not guilty:' Iu a trial of a tramway motorman for manslaughter caused by the accused letting his car collide with a lighted car standing stationary ou the line, which was about to be coupled to a broken- down car, such collision causing a person about to couple the cars to be crushed to death between the buffers, the jury returned the following written answer to the question whether the prisoner was guilty or not guilty : " We consider the accused guilty of neglect of duty caused by extenuating circumstances, but not gross neglect, and strongly recommend him to mercy." Held by the Court of Appeal ( Stout, C. J., Williams, Denniston, Edwards, Cooper, and Chapman, JJ.), That the verdict was a general verdict of " Guilty," with a strong recommendation to mercy. STOUT. C. J. :— In this case the prisoner was indicted in the usual form— " for that he did commit manslaughter." He was a motor- man on the tramway, and from the impact of the tram he was driving on another car a man who happened to be between two other cars was killed. The verdict of the jury was as follows : " We consider the acoused guilty of neglect of duty caused by extenuating circumstances, but not gross neglect, and strongly recommend him to mercy." Three questions are left to this Court, namely,— 1. Is the verdict of the jury a verdict of " Guilty " with a recommendation to mercy ? 2. Is it a verdict of " Not guilty " ? 3. Is it too inconclusive to be the one or the other ? To ascertain the liability of the accused, reoourse must be had to the Crimes Act, 1908. Section 171 lays down the duty of persons in charge of things animate or inanimate which, in the absence of precaution, may endanger human life. The section is as follows: " Everyone who has in his oharge or under his control anything whatever, whether animate or inanimate, or who erects, makes, or maintains anything whatever which, in the absenoe of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care 446 N E W Z E A L A N D POLICE GAZETTE. i AUG. 16 to avoid such danger, and is criminally responsible for the oonbequences of omitting without lawful excuse to perform such duty." By this section the Court is bound. It cannot, to my mind, as the section is not ambiguous, refer to cases that have been decided at common law as to what neglect when in charge of a motor- car enables a jury to declare that manslaughter has been committed. The cases do not seem to me to be all reconcilable : See, for example, the cases of Reg. v. Hughes ( 26 L. J. M. C. 202); Rex v. Pittwood ( 19 T. L. R. 37) ; Reg. v. Lowe ( 3 Car. & K. 123) ; Reg. v. Haines ( 2 Car. & K. 368) ; Reg. v. Nicholls ( 13 Cox C. C. 75); R- g. v. Spilling ( 2 Moo. & R. 107); Rex v. Long ( 4 Car. & P. 432 ). In the first four of these oases mere neglect of duty was held sufficient to warrant a finding of " Guilty." In the other oases there are statements that the negligenoe required was gross negligence; but these cases may be distinguished as not being guilty of a statutory legal duty, but doing of an act lawful in itself which led to fatal results. In Reg. v. Doherty ( 16 Cox. C. C. 306) Mr. Justice Stephen laid down the law as follows: " Manslaughter by negligence occurs when a person is doing anything dangerous in itself, or has charge of anything dangerous in itself, and oonducts himself in regard to it in such a careless manner that the jury feel that he is guilty of culpable negligence and ought to be punished. As to what act of negligence is culpable, you, gentlemen, have a discretion, and you ought to exercise it as well as you can. I will illustrate my meaning. Supposing a man performed a surgical operation, whether from losing his head, or forgetfuluess, or for some other reason, omitted to do s imething he ought to have done, or did something he ought not to have done, in such case there would be negli- gence. But if there was only the kind of forgetfulness which is common to everybody, or if there was a slight want of skill, any injury which resulted might furnish a ground for claiming civil damages, but it would be wrong to proceed against a man criminally in respect of such injury. But if a surgeon was engaged in attending a woman during her con- finement and went to the engagement drunk, and through his drunkenness neglected his duty, and the woman's life was in consequence sacrificed, there would be culpable negli- gence of a grave kind. It is not given to every one to be a skilful surgeon, but it is given to every one to keep sober when suoh a duty has to be performed." He did not use the word " gross." He spoke of " culpable negligence." Now, " oulpable " means simply " guilty." It is difficult to define the words " gross negligence." In Henderson v. Comptoir d'Escompte ( 42 L. J. P. C. 60) it is called " wilful blindness " ; and by Baron Rolfe, in Wilson v. Brett ( 11 M. & W. 115), " negligence with a vituperative epithet." In the case of Grill v. General Iron Screw Collier Compauy ( 35 L. J. C. P. 321, 325) Mr. Justice Erie said, " I advisedly abstained from using a word to which I can attach no definite meaning, and no one, so far as I know, ever was able to do so." He is referring to the words " grosB negligence." In this case the jury has found the prisoner " guilty of negleot of duty." This I think means guilty of such neglect of duty as led to the death of the person killed. The addition of the words " but not guilty of gross neglect " may mean only " but not guilty of wilful negligence." The summing- up of Mr. Justice Lush in Reg. v. Finney ( 12 Cox. C. C. 625) was, " To render a person liable for negleot of duty there must be such a degree of culpability as to amount to gross negligence on his part. If you accept the prisoner's own statement, you find no such amount of negligence as would come within this definition. It is not every little trip or mistake that will make a man so liable. It was the duty of the attendant not to let water into the bath while the patient was therein. According to the prisoner's own account, he did not believe that he was letting the hot water in while the deceased remained there. The lunatic was, we have heard, a man capable of getting out by himself and of understanding what was said to him. He was told to get out. A new attendant who had come on this day was at an adjoining bath, and he took off the prisoner's attention. ( His Lordship then read the statement.) Now. if the prisoner, seeing that the man was in the bath, had knowingly turned on the tap and turned on the hot instead of the cold water, I should have said there was gross negligence, for he ought to have looked to see ; but from his own account he had told the accused to get out, and thought he had got out. If you think that indicates gross carelessness, then you should find the prisoner guilty of manslaughter; but if you think it inad- vertence not amounting to culpability, or what is properly termed an accident, then the prisoner is not liable." He speaks, it will be observed, of " gross carelessness," and that its antithesis is what is " properly termed accident." Chief Justice Erie did not use the word " gross" negligence in Reg. v. Noakes ( 4 F. & F. 920). His summing up was as follows: " Erie, C. J., strongly put it to the jury that they ought not to call upon the prisoner for his defence, and that the case was not sufficiently strong to warrant them in finding the prisoner guilty on a charge of felony. They could not, he said, conviot on such a charge, unlesB there was such a degree of complete negligence as the law meant by the word ' felonious.' Now, no doubt there ought to be due care and caution in the dispensing of deadly drugs; but this was the case of a ohemist put out of his ordinary course by the customer sending bottles of his own. And although, no doubt, there was negligence in not observing the label on tho bottle, on the other hand it was the case of a customer who had for years been sending for aconite, and only rarely for henbane. Without saying that there might not be evidence of negligence in a civil action, he did not think that there was sufficient to support a conviction in a criminal case." He there spoke of " culpable " negligence. The way that Archbold put it in his text- book is as follows : " Where an act of omission or commission in itself lawful is at the same time dangerous it must appear in order to render an unintentional homicide from it excusable that the party who was doing the act acted without gross negligence, in that he used such a degree of caution as to make it improbable that any danger or injury would arise from it to others. If not, the homicide will be manslaughter at the least, the doctrine being well established that the act or omission arising from culpable negligence of duty and having a fatal result is man- slaughter." It appears to me that the words " gross negligence " did not when used by the jury mean that the driver had simply been guilty of an error of judgment or that tne affair was an aocident, but they found him guilty of neglect. As I read it, his action was a culpable neglect of his duty. As I have pointed out, the section of our Act does not introduce the word " gross," and, as I have also pointed out, many of the English authorities show that in leaving the case to the jury many Judges have not used the word " gross." As I under- stand from the Judge who gave the direction to the jury in this case, he pointed out to them that the prisoner would not be guilty if it was a mere accident— there must be neglect of duty; and I am of opinion that their verdict, by finding that he was guilty of neglect of duty, by their recom- mendation to mercy, by their mention of extenuating circum- stances, meant that he was guilty, but that in their opinion it was not a case in which any severe punishment should be inflicted. Looking at the evidence, I concur that this is not a case in which a severe punishment should be inflicted ; but the evidence was sufficient, in my opinion, to warrant the jury in coming to the decision that they did in the case, and I am of opinion that their finding does amount to a verdict of " Guilty." WILLIAMS, J. :— I have had the advantage of reading the judgments of the other members of the Court, and I agree with the findings at which they have arrived. DENNISTON, J. :— It is clear that the findings of the jury do not constitute a special verdict, which is a well- understood term of art. In Dawson v. The Queen ( N. Z. L. R. 3 C. A. 1), which was a suit for negligence, raising a question very similar to that raised in the present case, Richmond, J. ( after stating that the findings did not make a special verdict), said, " I think we are justified in looking at the whole conduct of the case and the evidence taken in order to construe the findings." We are entitled ( making allowance for the stricter standard of proof required in criminal cases) to apply the same method to tbe present case. The charge was one of negligence. Negligeuce is a breach of legal obligation to do or forbear from doing something whereby some person suffers. The jury were directed that it was the duty of the aocused to exercise that reasonable prudence aud diligence which ordinarily skilful drivers of motor- cars are aocustomed to use, and that proof of the neglect to exercise such reasonable prudence and diligence would call for a verdict of " Guilty." Having this direction the jury found the accused " guilty of neglect of duty." Standing alone, this would be held to be clearly a general verdict of " Guilty." Then, is this modi- fied or attentuated by the additional words " caused by ex- tenuating circumstances"? It occurred to me that this might be read as applicable to that part of the learned Judge's direction in which he qualified the language I have quoted by the words " unless there are proved circumstances which operate as a sufficient excuse." But " extenuating circumstances " are words of extenuation, not of justification or excuse, and are inconsistent with the accused having been guiltless of neglect. Then we have the words " but not gross neglect." There is, as far as appears in the case, nothing in the directions of the Judge on the question of gross negli- gence as distinguished from ordinary negligenoe. Even, therefore, had the case been decided by the law as it stood before the passing of the Criminal Code Act, 1893 ( now the Crimes Act, 1908), I think these words should, read with the previous words " guilty of neglect," have been taken to have been used in a popular sense, and is merely an extension of the words " extenuating circumstances." I think, however, that section 171 of the Crimes Act, 1908, disposes, and was 1 probably intended to dispose of in respect of all cases within 386 N E W Z E A L A N D POLICE GAZETTE. i AUG. 16 its purview, of the distinction between " negligence" and " gross negligence " which there is at least strong ground in contending has beeu established by a number of English decisions. The remaining words, " and strongly recommend him to mercv," are obviously consistent with a verdict of " Guilty," and do not suggest that the jury considered there was a reasonable excuse for what would, but for suoh excuse, have been a neglect of duty. I think the jury meant to find, and did find, that the accused failed to discbarge his duty as defined by the Judge, but did so under circumstances which greatly extenuated his offenoe and entitled him to the greatest leniency of the Court. EDWARDS, J. :— Counsel agree that in many criminal cases at common law the jury have been directed that to render a prisoner orimin- ally liable foi the consequences of his neglect it is necessary to establish a greater degree of negligence than would suffice in a civil aotion brought in respect of the consequences of the same Act, while in other criminal cases no such direction has been given. If the case before the Court had been ruled by the common law upon this subject there might, therefore, have been some difficulty in determining it. In my opinion, however, the Solicitor- General is right in his contention that the case is ruled by the 171st section of the Crimes Act, 1908. That section runs as follows: " Everyone who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, or maintains anything whatever which in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable care to avoid such danger, and is criminally re- sponsible for the consequences of omitting without lawful excuse to perform such duty." The direction given by the learned Judge to the jury was strictly in accordance with the law as so enacted. In the case reserved the learned Judge thus states that direction : " In summing up, I told them that in my opinion persons engaged in driving motive machines such as locomotive engines, electric tram- cars, motor- cars, and motor- buses are bound to exercise that reasonable prudence and diligence that ordinarily skilful drivers of such motive machines are accustomed to use, and that if, from the want of exercise of such reasonable prudence and diligence, a person is killed, the driver is guilty of man- slaughter, unless there are proved oircumstances which operate as a sufficient excuse, and that it was for the jury to determine whether the prisoner had without a reasonable exouse failed to exercise such reasonable prudence and dili- gence, and that if in their opinion there was such a failure they should convict him ; if not, that they should aoquit him." There is nothing abstruse either in the 171st section of the statute, or in the direction of the learned Judge founded upon it. The matter was one which any twelve men of the most ordinary intelligence could perfectly well understand. The jury, then, approached the consideration of the evidence before them understanding that if they thought that the prisoner had exercised reasonable prudence and skill in the management of the tram- car which he was driving, or if they thought that although he had failed to exercise such reason- able prudence and skill the circumstances were such as reasonably to excuse his lapse, it would be their duty to acquit him ; " but that if they thought that the prisoner had failed to exercise such reasonable prudence and skill, and that the circumstances were not such as reasonably to excuse his failure to do so, then it was their duty to find him guilty. So approaching the evidence, the jury returned the following verdict: " We consider the accused guilty of neglect of duty caused by extenuating circumstances, but not gross neglect, and strongly reoommend him to meroy." Now, it is plain that if the jury understood the direction of the learned Judge— and I think that they must be taken to have understood it— this verdict can mean nothing but that they found the prisoner guilty of neglect of duty in circumstances which did not reasonably excuse, but whioh to some extent palliated, that neglect, and that on account of the palliating circumstances they strongly recommended him to mercy. If the jury had thought that the oircumstances were such as to excuse the prisoner from the performance of the duty which otherwise lay upon him they would not have found him guilty of neglect of duty, but, following the direction of the learned Judge, would have acquitted him. That this certainly was not their intention is put beyond doubt by their recommending the prisoner to mercy. Dis- sected, the verdict of the jury finds two things— 1, neglect of duty ; 2, palliating oircumstances insufficient to reason- ably discharge the prisoner from the performance of that duty. That finding is a verdict of " Guilty," the seoond branch of the finding being added to enforce the strong recommendation to mercy which accompanied it. If the facts are looked at the meaning of the finding is quite clear, and the finding itself is quite reasonable. The prisoner is a motorman in the employ of the Electric Tram Company in Auokland. He bears an exoellent charaoter for care and competency. On the evening of the 29th of November last be was driving car No. 58. On that evening car No. 71 broke down in Hobson Street, upon the line which had to be traversed by the car driven by the prisoner, and all its lights went out. Car No. 71 was followed by car No. 70, which drew up in Hobson Street at a safe distance from car No. 71, and about 60 yards from the corner of Wellesley Street and Hobson Street. It was then arranged that car No. 70 should bo coupled to the disabled car No. 71 for the purpose of propelling that car to the Tram Company's Ponsonby sheds. While Thompson, the driver of the dis- abled oar No. 71, was stooping between that car and car No. 70 for the purpose of coupling those oars together, car No. 58, driven by the prisoner, came round the corner of Wellesley Street into Hobson Street, and, without stopping, proceeeded along Hobson Street at the rate of five or six miles an hour until it struck car No. 70, in which the lights were brightly burning, driving that car on to car No. 71. The result was that Thompson's head was caught between the buffers of cars Nos. 70 and 71, and he was killed instantaneously. It must be obvious that in this state of facts the prisoner was guilty of neglect of duty, unless he could show that there was something in the circumstances which reasonably excused him from the performance of that duty. The pri- soner gave three reasons for having failed to observe that car No. 70, in which the lights were burning brightly, was standing upon the rails. First, he said that about an hour and a half earlier he bad narrowly esoaped knocking down a drunken man, who had lurched in front of his car, and that this bad shaken his nerves. It might, however, be supposed that such an incident would have made the prisoner more, not less, vigilant in watohing what was on the line in front of his car. It is plain also that the accident did not happen through the prisoner's loss of nerve. Then he said that there is an optional stopping- place at the corner of Wellesley Street and Hobson Street, and that pursuant to one of the company's regulations, he was watching for passengers there as he rounded the corner from Wellesley Street into Hobson Street. In the view which I take of the matter this is no exouse at all. The breaoh of duty which renders the prisoner amenable to the criminal law has nothing whatever to do with his duty to conform to the company's regulations. It is a breach of duty to the public from which no regulations of his employers can absolve him. If the company's regula- tions had required him to disregard the safety of the public, then a higher duty required him to disregard the regulations. In truth, however, the company's regulations did not require its motormen to disregard the public safety, for it was proved that a notice was posted in a public position in the company's barn that " When a car is in motion the motorman must keep one hand on the controlling- handle, and must not look away from the direction in which the car is travelling." Lastly, the prisoner gave as his main excuse the fact that some person in the car had been persistently ringing the electrio bell, which was just over his head, and that shortly before he approached oar No. 70 he had turned his head to asoertain the cause of the per- sistent ringing. The electric bell is the passengers' bell: there is a separate hell for the conductor's signals. The ringing of the electric bell signifies that a passenger wishes to alight at the next stopping- place. The prisoner did not stop his oar at the stopping- place at the corner of Wellesley Street and Hobson Street. It would seem, there- fore, that the persistent ringing of the eleotrio bell must have begun after the prisoner's car had turned into Hobson Street, and after he ought to have seen the bright lights of car No. 70 stationary upon the line before him. Whether this is so or not, nothing less than a controlling cause could, in the eyes of reasonable men, exouse the prisoner from his manifest duty upon turning into Hobson Street, to exer- cise vigilance in seeing what was then upon the line in front of him. This is the instinctive act of every careful driver or rider, whatever may be the vehicle or animal he is driving or riding. The accident was caused by the prisoner's neglect to look along the line in Hobson Street when he had turned into that street. For this neglect there certainly was no reasonable excuse. The fact that a passenger was per- sistently ringing the electric bell certainly was none. The only meaning to the prisoner of that signal was that the passenger wished to alight. His duty then was to stop at the next stopping- place, and in the meantime to keep his eyes upon the road before him. The faot that the signal was unreasonably continued to his annoyance in no respect discharged him from that duty. The excuses made by the prisoner for his negleot of that duty, whether taken singly or together, are quite insufficient to absolve him from his responsibility for the aocident whioh it caused. This is in effect what the jury have found. They have found also, though it seems for different reasons, that there are palliating circumstances. They have given effect to that finding in 387 N E W Z E A L A N D POLICE GAZETTE. i AUG. 16 the only proper manner, by recommending the prisoner to mercy. In my opinion, the verdiot is a verdict of " Guilty," and the conviction should be affirmed. COOPER, J. : — I am also of opinion that the verdiot of the jury was a verdict of " Guilty " with a recommendation to mercy. An electrio tram- car is a machine which, carelessly driven, may endanger human life. The prisoner was in charge of the car, and had it under his control. While he was in charge and had such control he allowed the car to strike oar No. 70, and this, by causing that car to move forward, resulted in the death of Thompsou, who was coupling car 70 to car 71. In order in such a case to sustain an indictment for man- slaughter it is not necessary for the Crown to prove gross negligence. It is sufficient if it is established that the person charged with the offence has failed to take reasonable pre- cautions against, and has failed to take reasonable care to avoid, the danger. The jury have found that the prisoner was guilty of a neglect of duty, and therefore, although gross negleot has been negatived, the verdict means that the prisoner failed to take reasonable care while driving the car. As the death of Thompson resulted from such a failure or neglect of duty on the part of the prisoner, the verdict was one of " Guilty." The opinion of the jury that there was no gross neglect, and that there were extenuating circumstances, were treated by the jury as being palliative matters and not excusable, and therefore they recommended the prisoner to mercy. There may very likely be cases in which a higher degree of negligenoe than is sufficient to sus- tain an action at law may require to be proved in order to justify a conviction for manslaughter; but in my opinion this higher degree of proof is not necessary where a person who is in charge and has the control of a dangerous machine or animal causes, without lawful exouse, by a neglect to exercise reasonable precautions and care, the death of a human being. His breach or neglect of duty in such a case is the crime of manslaughter. CHAPMAN, J.:— I agree that the conviction should be affirmed. The jury have made it plain that they intended to find the prisoner guilty by reason of his neglect of duty. The finding that this neglect was not gross neglect is not sufficient to neu- tralize the finding of guilt. The term " gross neglect " has been at times somewhat loosely used, but here the sense in which it is used is to be gathered from the rest of the ex- pressions used by the jury. I wish, however, to guard myself against being supposed to express the opinion that every neglect of duty that would render a man liable in a civil action would, if the death of the person thereby injured ensued, render the negligent actor liable for manslaughter. That orime was a felony at common law, and it has fre- quently been said that the measure of liability in civil and criminal cases must differ: Reg. v. Longbottom ( 3 Cox C. C. 439) ; Reg. v. Franklin ( 15 Cox C. C. 163). It is not difficult to imagine cases in which very slight negligence oausing injury to another would give rise to a civil aation. It may be that tho Crimes Act gives a more stringent while giving a more precise definition of manslaughter by negligence than that recognized by the common law, but I do not find that the wording of section 171 necessarily excludes the distinction long observed between mere negligence and culpable negligence. That distinction is pointedly made by Sir James FitzJames Stephen in Reg. v. Doherty ( 16 Cox C. C. 306). In the various reported Nisi PriUB cases some of the Judges used the expression " gross negligence," others the ex- pression " culpable negligence." The Solicitor- General re- ferred to cases in whioh these expressions are not found, but neglect of duty is made the criterion. I do not, how- ever, think that there is any real conflict between these cases. Those in which the stronger expressions have been used have not been disapproved of by Judges or text- writers. In Reg. v. Salmon ( 6 Q. B. D. 79), where a boy was shot by one of three men who were recklessly firing at a mark placed high in a tree, Lord Coleridge, C. J., says, " If a person will, without taking proper precautions, do an act whioh is in itself dangerous, even though not an unlawful act in itself, and if in the oourse of it he kills another person, he does a criminal act which in law constitutes manslaughter." Field, J., says, " They had a duty not to use a weapon likely to cause death or injury in an improper place and without taking proper precautions to avoid injury." Stephen, J., says, " Manslaughter is unlawful homicide not amounting to murder. It is unlawful where caused by the culpable omission to discharge a duty tending to the preservation of life. There is a duty tending to the preservation of life to take proper precautions in the use of dangerous weapons and things. It is the legal duty of every one who does any act which without ordinary precautions is or may be danger- ous to numan life to employ those precautions in doing it." These expressions are in effect very much the same as the definition in sect: on 171. The reference there to " reason- able precautions" and " reasonable care" seems to me to give a discretion to the jury, and to leave it open to a Judge, in direoting a jury, to direct it in terms similar to those used six years later by the learned Judge last quoted, in Reg. v. Doherty ( 16 Cox C. C. 306). He speaks of a man who conducts himself in such a careless mannor " that the jury feel that he is guilty of culpable negligence and ought to be punished"; and addH, " As to what act of negligenoo is culpable, you, gentlemen, have a discretion, and you ought to exercise it as well as you can." The difference, therefore, between negligence and culpable negligence is not a matter to be defined, but, it is a diffeience which leaves some latitude or discretion to the jury. In this case the neglect of duty was not so reckless as in the case of Reg. v. Salmon ( 6 Q. B. D. 79), but what the jury have found is that the accused showed a want of reasonable care when he continued to run his car round the corner, where another car might be standing, without keeping a lookout, but there were extenuating circumstances. This verdict would probably be understood as a verdict of " Guilty " irrespective of the Crimes Act. Conviction affirmed. Solicitors for the Crown : The Crown Law Offioe ( Welling- ton). Solicitors for the prisoner: Reed and Bailey ( Auckland). " New Zealand Law Reports," Vol. xxx, page 690.) [ COURT OF APPEAL. — ( STOUT, C. J., DENNISTON, J., EDWARDS, J., CHAPMAN, J., SIM, J.)— 11TH MAY, 1911.] REX V. THOMPSON. Criminal Law— Abortion- Attemvting to procure Noxious Thing— Substantive Offence— Thing procured innoxious— The Crimes Act, 1908, Sections 93, 221, 823, 349. Section 223 of the Crimes Act, 1908, creates a sub- stantive offence, and a person may be indicted by virtue of section 93 for an attempt to commit the said offence. A person is guilty of the offence of attempting to pro- cure a noxious thing under the said sections even if the thing procured is innoxious. CASE stated by Stout, C. J., under seotion 442 of the Crimes Act, 1908, for the opinion of the Court of Appeal. The case was as follows :— The prisoner, who was tried on the 15th of November, 1910, was indicted as follows :— " The jurors for our Lord the King present that Ernest Edwin Tnompson, on or about the 15th day of October, in the year of our Lord 1910, at Palmerston North, in the Dominion of New Zealand, did attempt to unlawfully pro- cure a certain noxious thing knowing the same was intended to be unlawfully used with intent to procure the miscarriage of a woman then being with child— to wit, one M." The prisoner pleaded " Not guilty." The prisoner made a statement, which seemed to me to admit the offence. The statement was as follows: " I have known M. since about July last. I have been keeping company with her for about two or three months, and during that time I have frequently had sexual intercourse with her. About a month ago M. told me she thought she was in the family- way, and she hinted that she expected me to marry her. I told her that I was not in a position to do so. Since then she has repeatedly told me that she was in the family- way, and has told me to either marry her or get her some stuff, so that she could get rid of it. On either Wednesday or Thursday of last week she again asked me to get her some stuff, and I told her that I would go to Palmerston and try to get it. On Satur- day, the 15th of October, I went to Palmerston by the 2 p. m. train. On Saturday evening I went to a chemist's shop in Palmerston. My cousin went with me. I had told my cousin that the girl M. was in trouble to me. My cousin in my presence said to the chemist, ' Can you do me a favour 1' or words to that effect. The chemist asked what was the trouble, and my cousin said a young girl in trouble. The chemist asked how old she was, and my cousin said about nineteen years. The chemist said, on account of being young it will be hard to shift, but ho would give some medicine. The ohemist then went along the back of the counter, and returned in from three to five minutes. When the chemist returned he had a bottle of very dark medioine in his hand. As the chemist was wrapping up the bottle of medicine he told my cousin to cell the girl to take a dose three times a day after meals and to have a hot bath at night, and if that did not do any good to come back and try the second strength. The chemist said there were three strengths of that particular medicine. I then asked the chemist if it would hurt if she went out after taking the bath, and he said she had to go straight to bed after taking the bath. I also asked the chemist how long it would take the stuff to act, and he said twenty- four hours. My cousin paid the chemist 3s. 6d. for the bottle of stuff. I gave my cousin the money to pay for the stuff. We then left the chemist's shop, and as we were coming out of the door my 388 N E W Z E A L A N D POLICE GAZETTE. i AUG. 16 couain handed me the bottle of medicine. I put the medicine in my pocket, and returned to Shannon on Monday afternoon, the 17th of October, and took the bottle of medicine with me. On arrival at Shannon I went to my sister's house and found M. there, and I told her I had a bottle of medicine for her. I was going to give her the bottle of medicine, but she told me that her father was in Shannon and wanted to see me on account of this. I thought I had better keep the medicine to myself. I then left M., and went to the house of another sister of mine, and shortly after the father of M. came to see me. He accused me of getting his daughter in the family- way, and asked me to marry her. I told him I was not in a position to do so. He then warned me not to give her any stuff to take to get rid of it. I told him I had already bought a bottle of stuff for that purpose, and he asked me where it was, and I told him inside my coat- pocket. I told him that I would give it to him and not get any more, and he would know she had not got it. I then went into the house and got the bottle of medicine and handed it to him. Before I gave the medicine to him I took it out of the wrapper and examined it. There was no label on it. I have had this statement read over to me by Detective Andrews. It is true." The evidence was in accordance with the statement, and counsel for the Crown admitted that the stuff found in the bottle had been analysed, and that the mixture could not have the effect of procuring a miscarriage, and was quite innocent. I directed the jury that this did not affect the guilt of the accused under the indictment, and they found a verdict of " Guilty." I reserved the question of whether the accused was guilty according to law. The evidence, if necessary, can be referred to. Fell, for the acoused :— The indictment is under section 223 of the Crimes Act, 1908. The accused is not guilty of attempting to procure a noxious thing, for the thing procured was not noxious. [ CHAPMAN, J.— Was not the attempt made when the chemist wns asked for the thing?] That is only preparation for an attempt. Further, the thing must be noxious : Reg. v. Isaacs ( L. & C. C. C. 220). The offence charged in Rex v. Austin ( 24 N. Z. L. R. 983) was " attempting to supply," and the prisoner there believed the thing was noxious. The word " procure " means to pro- cure with effect: Winsmore v. Greenbank ( Willes, 582). [ DENNISTON, J.— You cannot be guilty of procuring unless the thing is noxious, but you may be guilty of attempting to prooure.] The Solicitor- General, for the Crown :— It is possible for the prisoner to contend that an attempt to commit an attempt is not indictable: American and English Encyclopaedia of Law ( 2nd ed. Vol. iii, 251, n. 5; 253, n. 2) ; Rex v. Butler ( 6 Car. & P. 368). Section 221 creates the complete offence, and section 223 gives statutory expression to the offence of the attempt to commit the offence set out in section 221. The New Zealand cases are Rex v. Austin ( 24 N. Z. L. R. 983), which decided the thing need not be noxious where the offence is attempting to supply; Rex v. Nosworthy ( 26 N. Z. L. R. 536) decides " knowing" means " believing." See also Reg. v. Brown ( 63 J. P. 790.) STOOT, C. J. :— When I reserved this case at the trial I did not see how it could be distinguished from the decision in the case of Rex v. Austin ( 24 N. Z. L. R. 983), which was a decision of the Court of Appeal, coupled with the decision in the case of Rex v. Scully ( 23 N. Z. L. R. 380). In my opinion the only point that can now be raised is the point that has been referred to by the Solicitor- General. Mr. Fell has done all that could be done on behalf of his client. The point that the Solicicitor- General has now raised was not, however, raised in either of the pre- vious cases. In my opinion a new or separate offence is created by section 223 of the Crimes Act, 1908, different from that in section 221, which deals with procuring abor- tion. It is made a separate offence to supply means for procuring abortion; and, as it is made a separate and sub- stantive offence, an attempt to commit that substantive offence is a crime under section 93 of the Crimes Act, 1908, and punishable as stated under section 349. In my opinion this was an attempt to procure a noxious thing. It is true the attempt was unsuccessful, but only because the chemist supplied some stuff which was innoxious. There was, further, no attempt to deliver it to the girl, because of what she herself said, and because of what took place afterwards between the prisoner and the girl's father. My opinion is that, seeing we have this section in the Act, any argument based on the common law is disposed of. We have under section 93 stated that any attempt to commit a substantive offence is an offence of itself, and therefore there is no validity in the argument that an indictment for an attempt to commit the offence created by seotion 223 is an indict- I ment for an attempt to attempt to commit the offence set out in section 221, and is therefore bad. As I have said, section 223, in my opinion, creates a substantive offence, and, that being so, the accused was therefore properly con- victed. DENNISTON, J.:— I am of the same opinion. In many cases the code seems worded expressly with a view of meeting some of the subtle- ties which had arisen under the English common law. Un- lawfully supplying or procuring any poison or other noxious thing or instrument intending to use it for an unlawful pur- pose is doing an act for the purpose of accomplishing such object, and a person so doing is therefore guilty of an attempt to commit such unlawful act, and that whether it was possible to commit such unlawful act or not ( section 93). If section 223 is a substantive offence, the prisoner was properly convicted under it, although what he procured was in fact innoxious. I agree with the Chief Justice that it is a substantive offence. It is not merely ( if at all) an attempt to commit the offence defined by section 221, and therefore punishable under section 349, which provides for only two years' punishment. The offence under section 223 involves a possible three years, and, in the case where there had been a previous conviction, a life sentence. It is, therefore, not an attempt to attempt to commit the offence under sec- tion 221, but an attempt to commit the substantive offence under section 223. I agree that the conviction should be affirmed. EDWARDS, J. :— I agree. The Solicitor- General may be quite right in suggesting that, apart from section 223, the offence created by that section would have been an attempt to commit the crime under section 221, with the further result that in the present circumstances the prisoner could not have been indicted, on the ground that no indictment will lie for an attempt at an attempt. But in section 223 the Legislature has picked out distinct aots, and has enacted that to do any one of those acts shall be a substantive crime. If so, there may be an attempt under section 93 to commit the crime under section 223. CHAPMAN, J.:— I agree. Section 93 was enacted to get rid of a certain amount of confusion, especially in cases of stealing from the person, arising from conflicting views as to what constituted an attempt. Section 93 now formulates in distinct terms what is to be regarded as an attempt. The argument ad- dressed to us by the Solicitor- General that section 223 only represents an attempt to commit the offence described in section 221 may be quite correct. No doubt it is, logically speaidng, quite correct, but the Legislature has done here what it has done in section 93: it has, so to speak, cut the matter off at an earlier stage, and has determined to treat this offence of supplying or procuring as a substantive offence. The reasons for so holding have been given by other members of the Court, and with those reasons I agree. That really disposes of the argument that this offenoe is only in its nature an attempt. It mav be conceded that itjis truly in its nature an attempt, but it is by our Legislature made something more than an attempt— it is made a distinct offence. It must not be assumed that the Court merely made that assumption in Scully's case ( 23 N. Z. L. R. 380). I am quite satisfied that the Court carefully considered it and deliberately formed the opinion which it expressed, though possibly the question was not argued in that case. That case must therefore be regarded as embodying a deci- sion of this Court; but quite apart from that I am satisfied that that decision represents the intention of the Legislature. SIM, J.:— I agree that the effect of section 223 is to create a sub- stantive offence, although the acts there specified also amount to an attempt to oommit the offence specified in section 221. Seotion 223 having constituted the acts there described as substantive offences, there may be an attempt to oommit those offences under section 93. I think the conviction should be affirmed. Conviction affirmed. Solicitors for the Crown : The Crown Law Office ( Wel- lington). Solicitors for the accused: Casey and Moran ( Wellington). " New Zealand Law Reports," Vol. xxx, page 704. [ S. C. IN BANCO. WESTPORT—( DENNISTON, J.) — 22ND MARCH, 28TH APRIL, 1911.] DEW V. MARTIN RYAN. DEW V. PATRICK RYAN. Licensing— Offences— Christmas Day Jailing on a Sunday— Solemnized on Monday— Selling Liquor on Monday— The Public Holidays Act, 1910. Section 8— The Licensing Act, 1908, Sections 189, 190. 389 N E W ZEALAND POLICE GAZETTE. JULY 19 Where Christmas Day falls on a Sunday and is, by virtue of the Publ c Holidays Act, 1910, solemnized on the next succeeding Monday, it i- i an offence under the pro- visions of sections 189 and 190 of the Licensing Ant, 1908, for a licensee to sell intoxicating liquor in his licensed premises on the said Monday. APPEAL from the decision of E. Rawson, Esq., S. M., at Wesiport, dismissing an information under sections 189 and 190 of the Licensing Act, 1908, charging the respondent, Martin Ryan, the licensee of the Grauu Hotel, Westport, with selling liquor— to wit, beer— in his licensed premises at a time when such premises were directed to be closed by the Licensing Aot, 1908, and the Public Holidays Act, 1910. Christmas Day, 1910, fell on a Sunday, and was, by virtue of the Public Holidays Act, 1910, solemnized on the succeed- ing Monday, and the alleged sale took place on the said Mouday. An appeal was also brought in respect of the dis missal of a similar information against Patrick Ryan, tht licence of the Albion Hotel, Westport. The appeals were argued together. The selling was admitted in both cases. A. A. Wilson for the appellant. J. J. Molony for the respondent Martin Ryan. A. C. Cottrell for the respondent Patrick Ryan. Cur. adv. vult. DENNISXON, J.:— It was admitted at the hearing of these informations thai the. defendants ( now respondents) sold intoxicating liquor in their respective licensed premises on the ' 26th of December, 1910, betwetn the hours of 6 a. m. and 11 p. m. The Public Holidays Act, 1910 ( which came into force on the 3rd of December in that year), provides ( section 2) that " Where in any Act or in any award or industrial agreement reference is made ...( d) to Christmas Day or New Year's Day, such reference shall, when tnese days fail on a Sunday, hereafter be deemed to be the next succeeding Monday, and in that case any reference to Boxing Day shah be deemed to be the next succeeding Tuesday." Section 189 of the Licensing Act, 1908, subsection 1, provides that ail licensed premises shall ba closed on " Saturday night from 11 o'clock until 6 o'clock on the following Monday morn- ing " : and ( subsection 2) that -' All such premises shall be closed on Christmas Day and Good Friday, and on the days preceding Christmas Day and Good Friday respectively, as if Christmas Day and Good Friday were respectively Sunday, and the preceaing days were respectively Saturday; but this provision shall not alter the hours during which sucn premises snail be closed on Sunday when Christmas Day immediately precedes or follows Sunday." This last proviso is obviously only intended to protect the closing on the actual Sunday beiug affected by the constructive Sunday created by the Act. The 25th of December, 1910, fell on a Sunday. Tnere is in the section I have quoted a reference to Christmas Day. If, therefore, the Public Holidays Act applies to the Licensing Act, the provision as to closing licensed premises on Christmas Day must apply to and govern Monday, the 26th of Decem- ber, 1910. Counsel for the defendants have contended, in a very full and able argument, that, looking at the title and subject- matter of the Public Holidays Act, it does not apply to the Licensing Act. They argue that " any" is a term whicn has in many cases been restricted ; that in no case has the sale of alcotiolic liquor been forbidden on any holiday other than Christmas Day and Good Friday ; that in both of these cases it is because oi the analogy to Sunday in the sacred character attributed by most Christian members of the com- munity to these two days— because they are holy- days, and not because they are holida) s— that the prohibition is due, aud that the object of the Public Holidays Act is to provide for extra holiua\ s aud not for an extra holy- day. All the other days the subject of the Act are, it is pointed out, secular holidays, on none of which is there any prohibition against selling liquor; and no statutory alteration of Christmas for merely holiday purposes would transfer to such constructive Christmas Day the religious observances and sentiment which would still be observed on. and remained attached to, the actual day. When the 24th or 25th of December fall re- spectively on a Sunday and Monday there are, of course, two successive holy- days, and both are consequently closed under the statute. The Act, it was argued, is entitled and is to be dealt with as " An Act to make better Provision for the Ob servance of certain Days as Public Holidays." There is abundant authority for nolding thrft in a proper case " any statute " may be interpreted as excluding a par ticular statute. But the governing principle is that stated by the Judicial Committee in At torney General of Ontario v. Mercer ( 8 App. Cas. 767, at p. 778): " It is a sound maxim of law that every word ought, prima facie, to be construed in i s primary and natural sense, unless a secondary or more li- mited sense is required by the subject or the context." Now, the considerations urged by counsel tor the respondent may • 2— P. G. make it a plausible conclusion that if these had been present to the minds of those who passed the Bill they might have exempted the constructive Christmas Days from tha lestric- tions imposed upon the actual ones. But it is a long step from this to assume an implied intention on the part of the Legislature, notwithstanding the general language of the Public Holidays Act, to exclude the Licensing Act from its operation. To do so it is admitled that I must read into the Public Holidays Act, after the words " Wheie in any Act," the words " relating to public holidays," or something to that effect. I do not think that thi- i should be done unless it is clear that such a limitation must be assumed to have been intended. In many cases the literal construction of the language of a statute leads to anomalies and hardships, but as a general rule the remedy ( if any) for such lies in an amendment of tne Act. The appeals will be allowed, with £ 5 5s. costs in each case. Appeals allowed. Solicitor for the appellant: A. A. Wilson ( Westport). Solicitor for the respondent Martin Ryan : J. J. Molony ( Westport). Solicitors for the respondent Patrick Ryan: Free and Cottrell ( Westport). [ COURT OF APPEAL ( STOUT, C. J., WILLIAMS, DENNISTON, EDWARDS, AND CHAPMAN, JJ.), 21ST JULY, 1911.] SCOTT V. JACKSON. APPEAL under the Justices of the Peace Act, 1908, from the decision of E. C. Cutten, Esq., S. M., at Auckland, on an information under the Gaming Act, 1908, for keeping a common gaming- house. Solicitor for the appellant: F. Earl. Solicitor for the respondent: The Solicitor- General. WILLIAMS, J. :— The appellant was charged on an information laid by a detective police officer, under the 4th section of- the Gaming Act, 1908, with keeping a common gaming- house, and was convicted by the Magistrate. The present appeal is from that conviction. The appellant is the proprietor, keeper, and licensee of a public billiard- room in Auckland licensed by the Auckland City Council under its by- laws for playing every variety of the game of billiards. In that room the ordinary game of billiards and the different kinds of pool are habitually played. It. is admitted by the case that all those games are games of skill combined with an element of chance of varying degree, but in no case does the element of chance approach in importance the element of skill. The game_ mo st usually played is the ordinary game of English billiards. In that game no stake is played for, but the general custom is that the loser pays for the use of the table. The games of pool are round games in which a number of players take part, each staking such sum as the players have mutually agreed upon, and which is generally 6d. but occasionally Is, and never more than Is. Out of the money so staked the pro- prietor of the room is paid the prescribed charge for use of the table, and which varies according to the variety of the game played, and is from 2d. per player upwards. The winner of the game is entitled to the stakes less the amount paid for the use of the table. It is admitted by the inform- ant that these games have been played in public billiard- rooms in New Zealand for the past thirty- five years under the above conditions without challenge by any constituted authority til) 1907, and that he believes they have been so played in New Zealand and other parts of the British Do- minions for a much longer period than thirty- five years. The question is whether in the above circumstances the appellant's billiard- room was a common gaming- house within the meaning of the Gaming Act, 1908. The first, legislation on the subject in New Zealand was the Gaming and Lotteries Act, 1881. This Act was amended by the Gaming and Lotteries Amendment Act, 1907, and the two Acts were con- solidated by the Gaming Act, 1908. The provisions of the Act of 1881 relating to gaming- houses which were re- enacted by the Act of 1908 were adapted from the English Acts 8 anil 9 Vict., c. 109, and 17 and 18 Vict., c. 38. Sections 3, 5, 6, 7, 55, 61, 08, and 69 respectively of our Act of 1908 represent sections 2, 5, 8, 14, 9, 17, and 18 of 8 and 9 Vict., c. 109. Section 75 of our Act represents the conclusion of section 4. Section 4 of the Act of 1908 represents section 4 of the 17 and 18 Vict., c. 38. Sections 56, 57, 58, 59, and 60 of the former Act represent respectively sections 1, 2, 3, 5, and 0 of the latter. Sections 63 and 69 represent sections 17 and 18. Section 75 of the Act of 1908 differs, however, from section 2 of 8 and 9 Vict, in that the word " or " in the fourth line is substituted for " and," so that under our Act on an information for keeping a common gaming- house it is suffi- cient to prove that premises are kept or used for playing at 390 N E W Z E A L A N D P O L I C E GAZETTE. JULY 19 any unlawful game. So far as the present ease is concerned, the main amendment of the Act of 1881 by the Act of 1907 is the provision which now appears as section 10 of the Act of 1908, which enacts that every game of chance is declared to be an unlawful game within the meaning of the Gaming Acts. This provision does not appear in the English Acts. Apart from section 10 and the different wording of section 5 above referred to, the Act of 190S makes our law in sub- stance identical with the law of England as it appears in the Acts of 8 and 9 and 17 and 18 Viet.- In none of these Acts is there any definition of the term " common gaming- house." A common gaming- house is assumed to be something which is known to the law and which it is unnecessary to define. I think there can be no doubt that the term " common gaming- house " as used in the statute means prima facie a gaming- house which would have been indictable at common law as a nuisance. The question then seems to me to be, first, whether the premises in question would have been so indictable, and, secondly, if they were not, is there anything in the statute which makes keeping them punishable, although keeping them might not have been indictable as an offence at common law ? The question of what constitutes a common gaming- house was discussed by the learned Judges Hawkins and Smith, • I. J., in the case of Jenks v. Turpin ( 13 Q. B. D. 505). It was there decided that certain premises known as the Park Club came within the definition of a common gaming- house. The club was a proprietary club, Jenks being the proprietor. The usual accessories of an ordinary social club were pro- vided. The club consisted of three hundred membei'S, who paid an entrance fee and subscription. The game of baccarat, a game of chance, was habitually played there, and large sums changed hands every night. Jeuks received consider- able sums by way of commission from the players. It was held that the house was really kept for the purpose of gaming at baccarat as its main and principal object, and not as a mere social ciub to which gaming was ancillary. Hawkins, J., however, goes on to say that if the house had been kept open for a double purpose— viz., an honest social club for those who did not desire to play, as well as for the purpose of gaming for those who did— it would none the less be a house opened anil kept for the purpose of gaming. Hawkins, J., quoting from " Russell on Crimes," says that the principle alleged upon which common gaming- houses are punishable as nuisances is said to be that they are detrimental to the public, as they promote cheating and other corrupt practices, and incite to idleness and avaricious ways of gaming property great numbers whose time might otherwise be employed for the good of the community. In dealing with the particular ease- before him the learned Judge says: " After a careful consideration of the facts and of all that has been so ably addressed to us upon the subject, I have come to the con- clusion that there was an abundance of evidence that in all its essential characteristics the Park Club was a common gaming- house, and that as such the keeper of it might have been indicted as for a nuisance at common law. Its per- nicious tendency cannot be doubted, and the learned Magis- trate expressly finds that the game played at this house is one which promotes idleness and avaricious ways of getting money, and that it unfits persons for the performance of their duties in life." The learned Judge goes on to say that it does not make any difference that the use of the house and the gaming therein was limited to the subscribers and members of the club, and that it was not open to all persons who might be desirous of using it. He points out that if this could be set up as a defence to an indictment, any indictment for keeping a common gaming- house might be defeated. A. L. Smith, J., in the same case, defines a common gaming- house to be a house kept or used for playing therein any game ol chance or any mixed game of chance and skill 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 ol which are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed and against whom the other players stake, play, or bet. The learned Judge found that the Park Club came within that definition. The judgments of the learned Judges appear to me, however, to demonstrate that it is not every kind of gaming that will make a house where it is car- ried on indictable as a nuisance at common law, but only such gaming as in the opinion of the jury would render the house a nuisance by reason of the gaming carried on there being injurious to public morals. It. is gaming to play a game even of pure skill for any stake, however small, but the judgments do not suggest that a house where such a game is played is indictable as a common gaming- house. Hawkins, J., says the fact that cxcessivo gaming is habitually carried on in a house kept for the purpose of gaming is a cogent piece of evidence to be offered to a jury or other tribunal called on to determine whether the house is a common gaming- house so as to make the keeper of it liable to be indicted for a nui- sance at common law. A. L. Smith, J., says : " Can it be said that, as to the point whether particular gaming hail or had not a tendency to injure public morals, it was immaterial whether it was played for counters of no value or for hundreds or thousands of pounds ? It seems to me that it cannot. The tribunal before which each case comes will have to deter- mine, if it bccomes necessary, whether the stakes played for, the position of the parties, and the circumstances under which they are played for, have or have not a tendency to injure public morals." Both the learned Judges refer to the rules of the Park Club that no dice shall be used in the club, that the points at whist shall not exceed £ 1, and that all games shall be played for ready money. Hawkins, J., says, " One could almost imagine that these rules were framed expressly in order that they might be set up, if necessity arose, to vindicate the status of the club as one of non- gambling character, where a gentleman might dine and enjoy his rubber of whist if he pleased, but would not be permitted under any circumstances to gamble." The word " gamble " here means, of course, to play for excessive stakes. A. L. Smith, J., says, " Could anything be a greater farce in an establishment such as this was, when it was possible to lose £ 1,000 in some twenty minutes, than to have one of its rules ( and it was suggested that these rules showed that it was nothing but a bona fide club with an ordinary card- room) that ' the points at whist should not exceed £ 1 ? ' When the learned counsel who argued for the appellants sought to liken the Park Club to Brookes's, White's, ami other well- known proprietary London clubs, they sought to liken it to subject- matters to which it had no resemblance, and had nothing in reality in common excepting that each had a proprietor and each was called a club, in the one case, a gambling- liouse pure and simple was kept ; in the others, this certainly was and is not the case." Now, playing whist for money is certainly gaming, yet it is perfectly clear from these judgments that if the members of the Park Club had not played baccarat, but had confined themselves to whist and had kept within the points pre- scribed by the club rules, the learned . Judges could not have considered the club to be a common gaming- house. The learned Judges evidently considered that to play at whist, a game of mixed skill anil chance, for such amounts as, con- sidering the position of the parties, we're not excessive had not any tendency to injure public morals. Premises, there- fore, where such a game was habitually played by members of a club would not be indictable as a common gaming- house, although, if, instead of whist, a game of chance had been habitually played by the members for an excessive amount it would have been indictable. In an indictment at common law it would be for the jury to find whether in the particular circumstances a nuisance hail been created, if in the pre- sent case the appellant has been indicted at common law for a nuisance, and the facts as stated hail been uncontra- dicted, would it. have been the duty of the Judge to tell the jury that they mast find a verdict of " Guilty '' irrespective of all other considerations than the fact that gaming accord- ing to the technical meaning of the word had been carried on ? I do not think so. The games that were played were the various forms of the game of billiards. The premises were licensed by the proper authority for playing such game. The games, therefore, were not only not unlawful games, but games which the law expressly recognized as lawful. One class of games was not played for a stake at all. Other games were played for a very trifling stake. The practice of playing in that way in licensed billiard- rooms hail been carried on for many years without objection by any one. There is nothing from which it can be inferred that playing in this way bail during those years, or is now, detrimental to public morals. If the appellant had been indicted at common law for a nuisance for keeping a common gaming- house I do not think there would have been anything to justify a jury in convict- ing him. I arrive at this conclusion from a consideration of the judgment of the learned Judges in Jenks v. Turpin, and apart from the definition of a common gaming- house given by A. L. Smith, J., above quoted. If, indeed, that is the true common- law definition of a common gaming- house, it is manifest that the appellant's premises are not covered by that definition. That definition corresponds almost exactly with section 145 of the Criminal Code Act, 1893, and sec- tion 103 of the Crimes Act, 1908. Before the Act of 1893 a common gaming- house was indictable as a nuisance at com- mon law. Section G of the Act of 1893 prevented an indict- ment being preferred at common law, but section 143 made keeping a comi ion gaming- house an indictable offence, and section 145 defined a common gaming- house. When the Legislature did away with the procedure at common law, did it intend to do away with what was the common- law offence and substitute a different offence, or did it intend in defining the offence to define the offence which theretofore had been indictable at common law ? if A. L. Smith, J.' s, definition is correct our statutory definition is a definition of what con 391 N E W Z E A L A N D POLICE GAZETTE. i AUG. 16 stituted the common- law offence. If, therefore, the pre- mises could not have been indictable at common law as a common gaming- house, is there anything in the Act of 1908 which makes premises a common gaming- house which at common law would not have been a common gaming- house ? As I have said, our legislation differs from the English legislation in two respects only— first, 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 an unlawful game. The result of the English legislation is given in Stephen's Digest of Criminal Law ( 5th ed., p. 143), where a common gaming- house is defined. The definition is as follows: " A common gaming- house is any house, room, or place kept or used for the purpose of unlawful gaming therein by any considerable number of persons. ' Gaming ' means playing at games either of chance, or of mixed chance and skill. ' Unlawful gaming' means gaming carried on in such a manner, or for such a length of time, or for such stakes ( regard being had to the circumstances of the players), that it is likely to be injurious to the morals of those who 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 are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play, or bet." A note states that the definition appears to the author to be established by the interpretation put by Jenks v. Turpin on, inter alia, 17 and 18 Vict., c. 38, section 4. That is, in effect, the same conclusion which I have drawn from that case. If that con- clusion is correct, the premises now in question are not within the definition of a common gaming- house. I think Stephen's definition may be taken as authoritative. A recent writer says, " Stephen's Digest of the Criminal Law is probably one of the best English law- books in existence, if not absolutely the best " ( Law Quarterly Review, Vol. 27, page 310) ; and this praise is, I think, not undeserved. Nor do I think that our legislation makes these premises a common gaming- house. Section 5 of our Act enacts that premises kept or used for playing at any unlawful game are deemed to be a common gaming- house. The game played, however, must first be shown to be unlawful. The different games of bil- liards are not unlawful unless they are made unlawful by section 10 of the Act of 1908 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 the Criminal Code Act of 1893 was in force. Section 143 of the Code makes the keeping of a common gaming- house as defined by the Act an indictable offence punishable by two years' imprisonment with hard labour. Section 105, which contains the definition of a common gaming- house, expressly draws 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 1907 had expressly recognized in dealing with a subject in pari materia that a mixed game of chance and skill was not a game of chance. There is no strict legal definition of a game of chance. The average man is quite as capable of deciding what is or is not a game of chance as the most learned lawyer. In ordinary language, billiards and pool are not games of chance. If any one thinks they are, let him go and play them for a stake and he will promptly discover his error. I think the appeal should be allowed. DENNISTON, J. :— I have had the opportunity of reading the judgment which was delivered by Mr. Justice Williams, with which I agree. I have very little to add. The case for the respondent depends upon the meaning of the words " game of chance." in section 10 of the Gaming Act, 1908. The words have not acquired a meaning as a term of art: they have to be inter- preted as ordinarily used and understood. The Solicitor- General claims that this must be read as including every game in which there is an element of chance, however slight. There are games of pure skill— chess, for example— and games of pure chance, such as pitch- and- toss or blind hookey. These would be described in ordinary language as games respectively of chance and as games of skill. Billiards is admittedly a game of skill. The game which was the subject of this information is ordinary billiards with the addition of a method of differentiating in the case of each player, to an extent known only to such player, the score on which his winning or losing depends. The effect of this is in practice inappreciable, as any apparent advantage from a higher number is counteracted by corresponding disadvantages. Would any one in ordinary language describe the latter game as a game of chance ? In chess, the right to begin, which theoretically will, between absolutely equal players, decide the game, is generally determined by lot. That surely does not make it a game of chance. 3— P. G. But the Legislature has, it appears to me, made in that portion of the Crimes Act, 1908, dealing with the same sub- ject- matter as the Gaming Act the distinction which is relied on by the appellant. By section 103 of the Crimes Act, 1908, a common gaming- house is declared to be a house, room, or place kept by any person for gain, to which persons resort for the purpose of playing therein at any game of chance or any mixed game of chance and skill, in which certain elements mentioned exist. That is a distinct recognition of, and dis- tinction between, the two classes. As is pointed out by His Honour Mr. Justice Williams, the provision for making any game of chance an unlawful game appears first in the Gaming and Lotteries Act Amendment Act, 1907, where the definition of a common gaming- house as in the Crimes Act had been enacted. I cannot see any reason why, in a highly penal Act, the words " game of chance " should not receive the same construction as in an earlier Act in pari materia, where they are used as distinct from " a mixed game of chance and skill." The only other observation I desire to make on the con- struction of section 10 of the Gaming Act is that if the ex- pression " game of chance " there used is to be read so as to include every game in which there is an element of chance, however small, it must undoubtedly be so read in section 5 of the same Act. But if that were intended, the imme- diately following wolds " or that a bank is kept there by any one or more of the players exclusively of the others, or that the chances of any game therein are not alike favourable to all the players," would be superflous. I am of opinion that the appeal should be allowed. CHAPMAN, J.:— I think that this appeal should be allowed, and I agree substantially with the reasons given by His Honour Mr. Justice Williams. I am satisfied that the real purpose of this part of the statute is to define and to provide for the proof of what was a common- law offence detrimental to public convenience, and not to create a new offence out of what was previously an innocent act. Of the three things which may be adduced under section 5 to prove that a house is a common gaming- house or place for gaming, the second and the third relate to keeping a bank or something analogous to one. These do not apply in this case, but it is argued that it is here proved that the premises are kept or used for playing therein at an unlawful game within the first of this indicia. Apart from any statutory definition, I cannot suppose that the proceeding here described is an unlawful game. Sec- tion 10 declares that every game of chance is an unlawful game, and this is relied on as governing this case. I do not, however, think that this can mean every game in which either prior to its commencement or at some point in its progress a slight element of chance is apparent. A question of substance has to be put and answered : Is the game of pool here described in any of its forms a game of chance ? Put in this simple form, the answer must always be in the negative. If that negative answer can in any way be quali- fied it must be qualified by referring to the circumstance that section 163 of the Crimes Act, 1908, recognizes the existence of games which are not games of skill and are not games of chance, but are mixed games of chance and skill. I do not see why we should not look at this Act if it throws any light on the question. Such games are included among the indicia of a common gaming- house under that Act, but only where a bank or something of the sort is kept. In order to make out that a practice which has prevailed and has been regarded as an innocent practice for many years both before and since this legislation was first enacted is unlawful it must be clearly shown to be within the language of the penal enactment relied on. The wording of the Crimes Act affords at least some reason for doubting this. It shows that the answer to the above question must in any case be in the negative. In reading this penal enactment the same result must be reached without this aid. The answer must be " No, this is not really a game of chance," or " No, sub- stantially this is not a game of chance." It may be pointed out that there are other indications in the same direction, such as the extremely severe penalty attached to the act of advancing or lending money for the purpose of gaming or betting with persons resorting to any common gaming- house ( section 4). This was not intended to include the case of a player simply lending another a few shillings to enable him to continue playing such a game as this. Yet that case would be included if this were found to be a common gaming- house. Further, an examination of sections 7 and 8, relating to evidence of gaming and instruments of gaming, may also be taken as indicating what is really meant by a game of chance in a criminal sense. EDWARDS, J.:— In this ease we have had the advantage of a very full and interesting argument by the Solicitor- General in which he 392 NEW ZEALAND POLICE GAZETTE. i AUG. 16 has traced the history of the legislation with reference to the law applicable to the case under consideration, and has also discussed the common law dealing with the same subject. The Solicitor- General admits, however, that in the result the question before the Court is merely a question of the construction of certain provisions of the Gaming Act, 1908. The information is under section 4 of the Act, which renders every person who opens, keeps, or uses any premises as a common gaming- house liable to a fine not exceeding £ 100, or to imprisonment for a period not exceeding three months. The provisions of the statute which were principally dis- cussed are sections 5 and 10. These sections are as follows :— " 5. ( 1.) In default of other evidence proving any premises to be a common gaming- house or place for gaming, it shall be sufficient in support of the allegation in any indictment or information 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, or that the chances of any game played therein are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play, or bet. " ( 2.) Such premises shall be deemed a common gaming- house or place for gaming such as is contrary to law, and for- bidden to be kept by all Acts containing any provision against unlawful games or gaming- houses." " 10. Every game of chance is hereby declared to be an unlawful game within the meaning of the Gaming Acts." The Solicitor- General admits that no game was unlawful at common law, and that the words " unlawful game " in section 5 mean a game made unlawful by statute. He admits also that the only statutory prohibition applicable to the present case is that contained in section 10. It is incum- bent, then, upon the respondent to satisfy the Court that the games played upon the respondent's premises are games of chance within the meaning of the statute. From the statement of facts agreed upon by the parties it appears that the games so played are " the ordinary game of English billiards, and all varieties of such game, such as snooker pool, muff pool, devil's pool, black pool, and general pool " ; and that " all games are games of skill with an element of chance of varying degree, but in no case does the element of chance approach in importance the element of skill." To support the contention of the Solicitor- General it would therefore be necessary to hold that every game in which there is an element of chance, however small, is by section 10 made an unlawful game for the purposes of the statute. This construction is inconsistent with the provi- sions of section 5 of the Act. To prove that premises are used as a common gaming- house it is under that section necessary to establish one of three things : ( 1) That the premises are used for playing therein at any unlawful game ; or ( 2) that a bank is kept there by one or more of the players, exclusively of the others ; or ( 3) that the chances of any game played therein are not alike favourable to all the players. It is plain that the Legislature has here recognized that there may be games which involve an element of chance, and which are yet lawful for the purposes of section 4. The Solicitor- General admits this, but he says that this part of section 5, which appeared originally in the Act of 1881, No. 10, must be taken to have been nullified by section 10, which appeared first in the Act of 1907, section 65. In other words, the Solicitor- General contends that we must construe sections 5 and 10 of the Gaming Act not in the sense in which those sections must be construed if we confine our attention within the four corners of the Act, but in the sense in which he contends that the Act of 1881 should have been construed after the Act of 1907 was passed. I do not think that this mode of construction is admissible. Upon this point I said all that I have to say in the Minister of Customs v. McParland ( 12 G. L. R. 230 ; 29 N. Z. L. R. ( C. A.) 279), and I do not propose to repeat it. It is by no means clear, how- ever, that, even if the prior legislation could be invoked for the purpose of construing the Act of 1908, the words " game of chance" in the Act of 1907, No. 65, section 11, should have the wide meaning for which the Solicitor- General con- tends. That Act was an amending Act. It left section 5 of the Act of 1881 ( section 5 also in the Act of 1908) un- touched. In ordinary language, no one would call a game in which the principal element is skill of a high character a game of chance merely because there is some small element of chance in it. In my opinion it is extremely improbable that the intention of the Legislature, in section 11 of the Act of 1907, was indirectly to give to section 5 of the Act of 1881 a meaning so entirely different from the meaning which it had previously borne. These Acts create fresh offences, and are of a highly penal character. Such an enactment must be couched in clear language. In support of his contention as to the meaning of the words " game of chance " in the Act of 1908 the Solicitor- General has referred us to the case of Tollett v. Thomas ( L. R. 6 Q. B. 514 [ 1871].). This case was decided upon the Imperial Vagrant Act Amendment Act, 1868, which is the origin of section 8 of both the Act of 1881 and the Act of 1908, and which used the same words—" game or pretended game of chance." The Court of Queen's Bench ( Cockburn, C. J., and Blackburn, Mellor, and Lush, JJ.) held that the totalizator, under its then name of the " pari- mutuel," came within the prohibition of this section, because the dividend payable to successful investors upon that machine depended upon the number of those investors, and an element of chance was thus introduced into the matter. This enactment stood entirely alone, and there was nothing to qualify its meaning, as in the Act of 1908. The result of the introduction of this section into the Act of 1908, where it is associated with sec- tions 5 and 10, may be that in that Act it bears a meaning different from that which in Tollett v. Thomas it was held to bear as an isolated enactment. It cannot give to sections 5 and 10 a meaning which could not otherwise be ascribed to those sections. In my opinion the appeal should be allowed, and the con- viction quashed. STOUT, C. J. :— This is an appeal to the Supreme Court from the decision of Mr. Cutten, the Stipendiary Magistrate at Auckland. The charge against the defendant in the information was that, being the occupier of a billiard- room in Auckland, the defend- ant ( now the appellant), had kept the same as a common gaming- house. The appellant has admitted certain facts which are set out in the case. It is admitted that certain games were played in this billiard- room, that the game most usually played was the ordinary game of English billiards, and that there were such games as " snooker pool," " muff pool," " devil's pool," " black pool " and " general pool." Further, it is admitted, " All the games are games of skill combined with an element of chance of varying degree, but in no case does the element of chance approach in importance the element of skill." The Magistrate held the offence proved on the ground that in playing these games there was money staked on the result of the games. Paragraph 9 states, " The games of pool are round games in which a number of players take part, each staking such sum as the players have mutually agreed upon and which is generally 6d. but occa- sionally Is. and never more than Is. Out of the money so staked the proprietor of the room is paid the prescribed charge for use of the table and which varies according to the variety of the game played, and is from 2d. per player up- wards. The winner of the game is by the rules thereof entitled to the stakes less the amount paid for the use of the table." This the Magistrate held was gaming, and convicted the appellant. The information was laid under section 4 of the Gaming Act, 1908, which stated, inter alia, " Every person who being the owner or occupier or having the use of any premises opens, keeps, or uses the same as a common gaming- house," & c. What a gaming- house is is not parti- cularly defined in the Act. The interpretation clause states that a " ' gaming- house ' includes betting- house, and any premises where any lottery promoted in New Zealand, or any part of the business or operations of or connected with any lottery promoted elsewhere than in New Zealand, is conducted." Section 5 deals with what would be sufficient evidence of a gaming- house, and is as follows : " In default of other evidence proving any premises to be a common gaming- house or place for gaming, it shall be sufficient in support of the allegation in any indictment or information 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, or that the chances of any game played therein are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play, or bet." Sec- tion 10 may also be referred to. It states, " Every game of chance is hereby declared to be an unlawful game within the meaning of the Gaming Acts." Section 11 deals with the question of playing in a club. It is as follows : " For the purposes of the Gaming Acts any premises which would otherwise be a common gaming- house shall be deemed to be a common gaming- house notwithstanding the fact that they are open only for the use of subscribers or of members or shareholders of any particular club, company, or corporation, and are not open to all persons desirous of using the same : Provided that this section shall not apply to any club hold- ing a charter issued under the authority of the Licensing Act, 1908. It is clear from the case that the place is used as a place for gaming because money is played for in the games, at all events in the games of pool. The admission made is that pool is mainly a game of skill, but that in some kinds of pool there is an element of chance, but that the element of chance 393 N E W Z E A L A N D P O L I C E G A Z E T T E. i AUG. 16 does not approach in importance the element of skill. Two questions arise : ( 1) Suppose all the games are games of skill but are played for money and are therefore gaming in the strict sense of the term, will the conviction stand ? ( 2.) Sup- pose the games arc as is admitted, mostly skill but the element of chance is combined with skill, will the conviction stand ? Section 5 begins by stating, " In default of other evidence proving any premises to be a common gaming- house or place for gaming it shall be sufficient," & c. This section is copied, though not in the identical language, from section 2 of the English Gaming Act of 1845 ( 8 and 9 Vict., c. 109). The Imperial Act has a preamble to this section 2 which is as follows : " And whereas doubts have arisen whether certain houses alleged or reputed to be open for the use of the sub- scribers only, or not open to all persons desirous of using the same, are to be deemed common gaming- houses : be it declared and enacted that in default of other evidence proving any house or place to be a common gaming- house," & c. It will be noticed that our section has not a preamble and, further, the words are different. The words in the sec- tion of our Act are, " proving any premises to be a common gaming- house or place for gaming." It is obvious from sec- tion 5 that if there is evidence to prove that the premises are used as " a place for gaming," it is unnecessary to refer to the other part of the section, which goes on to declare what shall be sufficient evidence in support of the informa- tion. It appears to me to be clear that this billiard- room was used as a place for gaming. The games played are played for money, and that is gaming. That is the definition of gaming both in English and in New Zealand cases. In the case of Parsons v. Alexander ( 24 L. J. Q. B. N. S. 277), Lord Chief Justice Campbell said, and the other Judges concurred, " Billiards is a lawful game, but there may be gaming at a lawful game, and the evidence here shows that the money was lost by playing at billiards in the usual way, the players betting on successive games, and I take it that that is gambling. In the common understanding a man loses or wins money by gaming when money is so staked and lost or won." In Jenks v. Turpin ( 13 Q. B. D. 505), Lord Brampton ( then Mr. Justice Hawkins), in commenting on the Gaming Act of 1845, said, in quoting section 1 of the Act, " Nothing can more clearly indicate the intention of the Legislature to legalize to all persons and at all times mere games of skill, but to preserve in their integrity all the penalties which then attached to playing at unlawful games anywhere, or gaming at all, even at lawful games in common gaming- houses, and to deprive every person of the power to license such playing or gaming " ( see pp. 521, 522) ; and after pro- ceeding to show that baccarat was an unlawful game, he added, " and, having regard to what I have already said as to the house being a common gaming- house, I am of the opinion that the conviction might also be supported upon the ground that all gaming therein, even at lawful games, was unlawful gaming." It is clear from these two cases that if there be gaming, even in cases of games of skill, carried on at a public gaming- house, that is an offence. Now, there was evidence that this was a public gaming- house, because the admission in para- graph 9 which has been cited shows that games of skill, and games of skill with a slight element of chance, were carried on there with money stakes. This question as to what is gaming was considered in some cases in New Zealand. In the case of Marshall v. Crean ( 26 N. Z. L. R. 161) a question arose as to the meaning of the words in section 44 of the Licensing Acts Amendment Act, 1904, where the words were, " Every person who permits or connives at gambling or the playing of any unlawful game on his licensed premises is liable to a fine." It was held that the word " gambling " meant " gaming "-— that they were synonymous— and that if a person played a game for stakes, that was as much gaming if the game were a game of skill as if it were a game of chance. In that case it was the plain and ordinary game of billiards. I am of opinion, therefore, that, without referring to any of the definitions of what is sufficient evidence in section 5, it is clear that this room was used for gaming, and, being used for gaming, it is within the words of the Act, " a public gaming- house." Even supposing reliance is to be placed on the definitions in section 5 of what is sufficient evidence, then it is also clear to me that in the first alternative— namely, that " the premises were kept for playing therein an unlawful game "— the conviction should be upheld. The definition of an unlawful game is " a game of chance," and if there is chance in the game, that was held to be sufficient: See Tollett v. Thomas ( L. R. 6 Q. B. 514). The judgment of Chief Justice Cockburn and of Justices Blackburn, Mellor, and Lush, said, " There being then this element of chance in the transaction among the parties betting, we think it may properly be termed as amongst them a game of chance." It is not therefore necessary that there should be no skill in the game— it is sufficient that there is an element of chance to make it an unlawful game under section 10. But, as was said by Mr. Justice Hawkins in Jenks v. Turpin, it is not necessary to rely on section 10 of the Act and show that the game played was an unlawful game. Nor do I see how it can be said that the word " gaming " in the Gaming Act should receive a different interpretation from the word " gambling " in the Licensing Act. The case of Craig v. Bovan ( Ir. R. 1901, Vol. iij, and the cases of Bew v. Harston ( 3 Q. B. D. 454) and Dyson v. Mason ( 22 Q. B. D. 351), held that if pool is played for money it is gaming. It is true that these cases were under the Licensing Act, but that can make no difference. " Gaming," then, is playing a game of pool, if there is any money staked on the game ; and if a public place is kept for such kind of gaming, then in my opinion it becomes a gaming- house within the meaning of section 4. It has been urged that the third class mentioned in section 5 controls the interpretation of the word " gaming " and of the first class mentioned, and that, therefore, even playing at a game of chance with money stakes would not be un- lawful or not make a place a gaming- house. If that inter- pretation were accepted there is nothing to prevent playing bridge, or other games of cards in which there is skill and also chance, and for stakes for money. In my opinion the latter class mentioned in section 5 does not control or limit the meaning of the first class or of the word " gaming," and that if a place is used for gaming open to the public, that comes within the mischief of the statute, and the very words of the Act. If, however, this third class is to control the section, then I presume the only games of chance that will be unlawful will be those in which the chances are unequal. Are they unequal in playing dice or " two up " ? If not, can these games be played in a house open to the public ? Further, classes 1, 2, and 3 do not speak of " gaming "— that is, of money stakes. In class 1 playing at an unlawful game in a house open to the public is sufficient proof that the house is a gaming- house, and classes 2 and 3 deal with cases where there is what is called a " banker." A part of the section dealing with a game with a banker cannot control the other parts of the section. Reference was made to the Crimes Act of 1908, and it was urged that, as there was there a definition of a gaming- house, that definition must be accepted, and that the provisions of the Gaming Act must be read subject to that statute. I do not see how that can be contended. The Crimes Act is dealing with a different offence with a different punishment. It may be supplementary to the Gaming Act, but certainly it does not purport to repeal it. This was decided, and I think correctly decided, by the Supreme Court in the case of Rex v. Eager ( 23 N. Z. L. R, 522). To interpret the Crimes Act as defining an offence under the Gaming Act would be to construe a general Act as overruling or controlling a special Act. The Crimes Act deals only with indictable offences. The Gaming Act deals with summary offences. I fail to see why it should be assumed that the definition in one statute of a crime differently punished should be the definition of a minor crime. I am therefore of opinion that the conviction should be affirmed. EXTRACTS FROM NEW ZEALAND GAZETTE. ( From Gazette, 1911, pages 2485 and 2495.) Fixing Fees to be taken under the Licensing Act. ISLINGTON, Governor. ORDER IN COUNCIL. At the Government House, at Wellington, this seventh day of August, 1911. Present : His EXCELLENCY THE GOVERNOR IN COUNCIL. WHEREAS by section one hundred and forty- one of the Licensing Act, 1908, it is enacted that the fees mentioned in the Fifteenth Schedule thereto, or such other fees as the Governor in Council shall from time to time prescribe, shall and may be taken from every person making any application for a license, or a renewal, trans- fer, or removal thereof, under the said Act, or otherwise in respect of any matter in such Schedule mentioned :. Now, therefore, His Excellency the Governor, in pur- suance and exercise of the powers and authorities con- ferred upon him by section one hundred and forty- one of the Licensing Act, 1908, and of every other power and 394 N E W Z E A L A N D POLICE GAZETTE. [ AUG. 16 authority in that behalf enabling him, and acting by and with the advice and consent of the Executive Council of the Dominion of New Zealand, doth hereby order, pre- scribe, and declare that, on and from the first day of September, one thousand nine hundred and eleven, the fees heretofore fixed to be taken and paid under the Licensing Act, 1908, and Acts amending the same, shall be abolished, and in lieu thereof the fees specified in the Schedule hereto shall be the fees to be taken and paid in respect of the several proceedings, matters, and things mentioned and set forth in the said Schedule. SCHEDULE. £ s. d. FILING notice of application for a license where no license has been previously issued, or for removal of license, or filing application for a license for an old house by a new licensee ... 0 10 0 On the grant of a certificate for a license where no license has been previously issued, or for removal of license, or for a license on applica- tion for an old house by a new licensee Filing notice of application of renewal, transfer, or temporary transfer On the grant of a certificate of renewal, transfer, or temporary transfer On making any application for a permit, certifi- cate, or certificate of fitness to hold a license ... 0 5 0 On the grant of any permit, certificate, or certifi- cate of fitness On making application for a conditional license, in respect of each booth On the grant of a certificate for a conditional license, for every day for or over which the license is granted or extended ( for each booth) For every summons to a witness, including ser- vice thereof within two miles of the Court ... 0 2 0 Service of any summons, for every mile beyond two miles oi the Courthouse or place of attend- ance specified in such summons ( one way) For every oath administered [ or filing any affi- davit] For filing, lodging, or depositing any not otherwise provided for ... For any order as to payment of costs tions made ... Registering name of licensee, owner, gagee ( as provided by section 149) And where any order made by a Licensing Court shall be enforced by process, the like fees shall be payable in respect of any proceedings taken for that purpose as would be payable in like cases under the Justices of the Peace Act, 1908. Government officers are exempt from prepayment of the above fees. J. F. ANDREWS, Clerk of the Executive Council. locument on objec- or mort- Inspectors of Factories appointed. Department of Labour, Wellington, 5th August, 1911. HIS Excellency the Governor has been pleased to appoint Constable GEORGE BENNETT EDWARDS and „ JOHN THOMAS MORRIS to be Inspectors under the Factories Act, 1908. The appointments are dated the 3rd day of August, 1911. J. A. MILLAR, Minister of Labour. 0 10 0 0 5 0 0 5 0 0 5 0 0 5 0 0 5 0 0 10 0 1 0 0 3 0 0 2 0 0 1 0 Inspector of Factories appointed. Department of Labour, Wellington, 9th August, 1911. HIS Excellency the Governor has been pleased to appoint Sergeant WILLIAM MCNF. ELY to be an Inspector under the Factories Act, 1908. The appointment is dated the 7th day of August, 1911. J. A. MILLAR, Minister of Labour. Clerks of Courts, < L- c., appointed. Department of Justice, Wellington, 9th August, 1911. HIS Excellency the Governor has been pleased to appoint Constable PATRICK CASSIDY to be Clerk of the Magistrate's Court at Rakaia, and Clerk of the Licensing Committee for the District of Selwyn, from the 26th day of July, 1911, vice Constable J. P. Clarkson, transferred ; and Constable GEORGE BENNETT EDWARDS to be Clerk of the Mag; strate's Court at Kurow, from the 24th day of July, 1911, vice Constable P. Cassidy, trans- ferred. GEO. FOWLDS, Acting Minister of Justice. Licensing Officer under the Arms Act, 1908, appointed. Police Department, Wellington, 7th August, 1911. HIS Excellency the Governor has been pleased to appoint Sergeant WILLIAM MCNEELY, of the New Zealand Police Force, to be a Licensing Officer under the Arms Act, 1908. GEO. FOWLDS, Acting Minister of Justice. Return of Persons summarily convicted at Magistrates' Courts, but not sent to Oaol. Name of Offender. Where tried. When. Offence. Hanfling, Patrick Paeroa 3/ 8/ 11 Takopa Kimihanga, alias Opotiki 31/ 7/ 11 Hakopa Grenvill, George Reino Taupo 19/ 7/ 11 Curran, Clifford Harold Dannevirke .. 4/ 8/ 11 McCarthy, John Stratford 4/ 8/ 11 McKay, Patrick Joseph Petone 4/ 8/ 11 Flux, Augustus Petone 4/ 8/ 11 Watson, Thomas Okarito 1/ 8/ 11 Hodges, Ethlene imberley 7/ 8/ 11 Orr, William Amberley 7/ 8/ 11 Donohow, Michael Andersen Timaru 8/ 8/ 11 Jackson, Henry Waimate 18/ 7/ 11 Crawford, Harry Inveroargill 4/ 8/ 11 obscene language theft theft attempting to oarnally know a girl under 16 assaulting railway guard wilful damage insufficient means of support insufficient means of support insulting language threatening behaviour theft ( 2 charges) obscene language obscene language wilful damage theft Sentenoe. Native of Trade. Born. A bf a Com- plexion. Hair. Noee. ft. in. fine or 7 days N. Zealand miner 1884 5 5 fair light brown blue Roman fine or 1 month N. Zealand labourer 1881 5 5| copper.. dark brown .. flat fine or 7 days Canada labourer 1892 5 6 fair fair blue large sent to Weraroa N. Zealand sohoolboy .. 1897 4 3 fair fair blue medium Training Farm fined £ 5 N. Zealand labourer 1885 5 8 dark, dark dark .. medium to pay damage sallow medium to come up if Ireland hawker 1867 5 4 fresh .. light brown blue oalled on to come up if N. Zealand hawker 1868 5 4 sallow .. brown blue straight called on to pay costs .. Scotland .. miner 1861 5 7 fair light brown blue medium to pay costs to come up if N. Zealand domestic 1886 5 6J pale light brown grey .. large called on and m Army Home for 2 years fined £ 2 & costs N. Zealand baker 1886 5 10 fair light brown blue snub fine or 14 days Russia labourer 1851 5 6J ( resh .. grey blue broken fined £ 1 and N. Zealand contractor .. 1881 5 10 fresh .. fair grey .. costs and to pay damage fineor 1 month Tasmania.. bootmaker .. 1859 5 10J ruddy .. g^ y hazel .. large Distinguishing Marks, kc. Large mouth. See Police Gazette, 1909, page 32. Scar under chin. 1 p. o. for drunkenness. Very thin features. See Police Gazette, 1910, page 62. 1 p. o. for wilful damage. Scar on back of neck ; bald on top of head. F. P. ( See Police Gazette, 1905, page 380.) 2 ft csi ft > HH L > 2 O T? O Q ft Q [ S! ft H (- 3 ft oo CO o* RETURN OF PRISONERS REPORTED AS DISCHARGED FROM GAOLS DURING THE WEEK ENDED 5TH AUGUST, 1911. Remarks, and Previous Conviotions. 15 p. c. F. P. Photographed at Waiotapu, 13/ 12/ 08. ( See Police Gazette, 1911, page 209 ) Scar on right wrist. F. P. 4 p. c. F. P. Photographed at Auckland, 27/ 9/ 10. Arrested 20/ 7/ 11. ( See I'olice Gazette, 1911, page 51.) 2 p. c. F. P. Photographed at Auckland, 4/ 7/ 11. Sentences cumulative. ( See Police Gazette, 1908, page 416 ) 1 p. c. Large scar on right side of neck; upper teeth artificial. Arrested 28/ 7/ 11. 6 p. o. F. P. Photographed at Auckland, 13/ 9/ 08. ( See Police Gazette, 1909, page 403.) 12 p. c. F. P. ( See Police Gazette, 1911, page 329.) 6 p. o. ( See I'olice Gazette, 1911, page 363.) Three dots between right thumb and finger. Ship on right forearm and chest; anchor, cross in heart, eagle, and snake on left forearm. 6 p. c. F. P. Photographed at Auckland, 1/ 8/ 11. ( See Police Gazette, 1911, page 270.) Heart, clasped hands, and emblem on right forearm. F. P. 2 p. c. F. P. Photographed at Auckland, 1/ 8/ 11. ( See Police Gazette, 1908, page 368.) Scar on right thumb ; first joint of left middle finger has been injured. F. P. Photographed at Auckland, 1/ 8/ 11. ( See Police Gazette, 1907, page 341.) head. E'. P. Photographed at Waiotapu, 11/ 4/ 11. '. P. Photographed at Waiotapu, 11/ 4/ 11. 3/ 8/ 11 Scar on right jaw. p. c. F. P. Photographed at Napier, 1/ 8/ 11. ( See Police Gazette, 1911, page 170.) ! luo spot on left hand; scar over right ear; left little finger contracted. F. P. Auckla 11 tl Dix, John Myer, Edward, alias Myers Stevens, Arthur Wallis, John, alias Waters, Isaac Power, James .. Brantwood, Whitely Taylor, Isaac Lewis, Henry Warren .. Brady, James Nicholas Bell, John .. .. 1 McLeod, Angus Neill .. Milne, John, alias Millane Edwards, Edward John Cunningham, John Davis, Harry, alias Den- nett, Henry Edward, alias Topping, Thomas Anderson, George Waiotapu— Choat, James Herbert, Victor Charles Gisborne— Kelly, Michael Napier Maxwell, Alexander McCarthy, William, alias Carthy, alias Brown, James Bain, William RETURN OP PRISONERS REPORTED AS DISCHARGED PROM GAOLS DURING THE WEEK ENDED 5TH AUGUST, 1911 - continued. Saol, and Name of Prisoner. Where tried When. Offenoa. Sentence. Native of Trade. Born jtj ' 5 ta Com- plexion. Hair. Byes. I Nose. When dis- charged. CO Wellington Mcintosh, Cecilea McHugh, Margaret Sullivan, Daniel Mcintosh, Kate, alias Edwards, alias Watsou, alias Wilson, Ellen, alias Johnston, Mary Caulton, Bert Harry, alias Howden, alias Turner, Albert Jackson, George William Long, Robert, alias Lowrie, Reginald, alias Lowrey, alias Johnson Dunn, Annie Winifred, alias Jones Stevens, William Cornish, William McAlear, Terence, alias Cameron, alias Mc- Kenna, alias Brown, Edward, alias Grey Mathieson, Roderick .. Hansen, Alfred Nelson — Brosnahan, Patrick Williams, George Frederick Clay, Thomas .. Noldstrom, Oscar Wellington M. C. Wellington M. C. Wellington M. C. Wanganui M. C. Wellington M. C. PalmerstonN. M. C. Wellington M. C. Nelson M. C. Wellington M. C. Wellington M. C. Wellington M. C. Wellington M. C. Wellington M. C. Wei I ington M. C. Nelson M C. Nelson M. C. Nelson M. C. Nelson M. C. Mathieson, Melten .. Nelson M. C. Hanmer Springs- Sharp, John .. .. Dunedin S. C. Remarks, and Previous Convictions. ( F. P. indicates thai finger- impressions have been taken.) 1/ 7/ 11 drunkenness 1 month Sootland .. nook 1878 ft. in. 5 0 fresh .. brown dark br. medium 31/ 7/ 11 24/ 2/ 11 vagrancy 6 months Australia .. prostitute .. 1877 5 5 fair red hazel .. long 31/ 7/ 11 2/ 6/ 11 obscene exposure 2 months England .. cook 1880 5 3 dark .. grey brown .. large 1/ 8/ 11 2/ 5/ 11 vagrancy drunkenness 3 months fine or 48 hours N. Zealand prostitute .. 1881 5 5J fair dark brown brown .. medium 1/ 8/ 11 1/ 5/ 11 maintenance.. 2 months N. Zealand printer 1880 5 7 fair fair grey .. medium 2/ 8/ 11 31/ 5/ 11 drunkenness 1 month 3/ 7/ 11 drunkenness 1 month England .. seaman 1848 5 7 fresh .. brown blue medium 2/ 8/ 11 11/ 4/ 11 theft 4 months Canada miner 1877 5 7 fair light brown grey .. medium 3/ 8/ 11 4/ 7/ 11 drunkenness 1 month Eugland .. nurse 1864 4 9| fair grey grey • • long 3/ 8/ 11 21/ 7/ 11 breach of a prohibition order fine or 14 days N. Zealand tailor 1877 5 5 lresh .. grey .. brown .. medium 3/ 8/ 11 13/ 7/ 11 6/ 5/ 11 failing to register under the Defence Aot, 1909 vagrancy breach of prohibition order ( 2 charges) fine or 21 days 3 months fine or 7 days on each England .. Sootland .. bookbinder fireman 1893 1872 5 5 5 71 fair dark .. auburn brown grey .. brown .. broad medium 3/ 8/ 11 5/ 8/ 11 7/ 7/ 11 drunkenness 1 month Scotland .. seaman 1876 5 8i dark .. brown blue medium 5/ 8/ 11 18/ 7/ 11 breach of a prohibition order fine or 14 days N. Zealand labourer 1882 5 6* fresh .. dark grey .. medium 5/ 8/ 11 13/ 7/ 11 vagrancy remanded Ireland labourer 1847 5 5 sallow.. grey grey .. medium 28/ 7/ 11 22/ 7/ 11 procuring liquor fine or 14 days Ireland miner 1867 5 2 dark .. dark dark .. medium 4/ 8/ 11 25/ 7/ 11 refusing duty on ship 24 hours England .. fireman 1888 5 9 fair fair blue medium 26/ 7/ 11 25/ 7/ 11 refusing duty on ship 24 hours Sweden fireman 1880 5 9i fail- fair grey .. medium 26/ 7/ 11 25/ 7/ 11 refusing duty on ship 24 hours Denmark .. fireman 1886 5 6 fair fair grey .. medium 26/ 7/ 11 20/ 8/ 06 oarrially knowing a girl 7 years under 11 N. Zealand labourer 1878 5 7i fresh .. brown hazel .. large 2/ 8/ 11 5 p. c. Artificial teeth. 4 p. c. Scar on forehead and neck. Dancing- sailor and clasped hands on right fore- arm ; anchor, several dots, and J. MORRISON on left forearm. F. P. 5 p. c. Three moles on right cheek. F. P. ( See Police Gazette, 1911, page 52.) Arrested 5/ 6/ 11. 143.) ( See Police Gazette, 1911, page 9 p. c. Numerous miles on body ; scar on fore- head. P. P. Photographed at Wellington, 20/ 5/ 11. 17 p. c. Burn- mark on neck, left shoulder, and both wrists. 6 p. c. Scar on palm of left band, right little finger, right ihigh, and left leg. P. P. ( See Police Gazette, 1911, page 35.) Mole on right forearm, right shoulder, and right jaw. F. P. Arrested 14/ 7/ 11. 27 p. c. Bracelet on wrists, scar on left cheek, and back of head. P. P. ( See Police Gazette, 1911, page 210.) cheek, and near right nostril, p. c. Pour dots on left arm. 24/ 7/ 11. Dancing- girl and bird with letter in beak on right forearm ; emblem and clasped hands on left forearm. Square chin. Hanmer Springs, 21/ 4/ 11. 3 tei ts f> t> 52S « • d o t- 1 i— i o M Q f> IS) H 1- 3 to CD RETURN OF PRISONERS REPORTED AS DISCHARGED FROM GAOLS DURING THE WEEK ENDED 5TH AUGUST, 1911— continued. Baol, sod Name of Prisoner. Where tried When. Offence. Senfce ce. Native of Com- plexion. Hair. Eyes. Nose. When dis- charged. Jtemarks, and Previous Convictions. ( F. P. indicates thai finger- impressions have been taken.) Lyttelton— Breen, James .. Myers, Isaac Hadling, Lena, alias Headland, alias Gunn- will Purcell, John .. Whitty, John, alias Craig, Michael, alias Walsh, alias Woodham, alias Hogan, John S. Dunedin — Austin, George Robertson, Walter Harrington, Francis, alias Preston, alias Delaray, alias Daly, alias Bailey Wallis, Bridget Ede, Arthur Ernest, alias Arthur Montgomery, John Invercargill— Sutcliffe, John Lawton Jackson, William George Lyttelton M. C. Christchurch M. C. Christchurch M. C. Christchurch M. C. Christchuroh S. C. PalmerstonN. S. C. Dunedin M. C. Dunedin M. C. Ophir M. C. .. Gore M. C. .. 4/ 5/ 11 Dunedin M. C. 7/ 4/ 11 Dunedin M. C. 12/ 4/ 11 Invercargill 3/ 6/ 11 M. C. Invercargill 4/ 8/ 11 M. C. 18/ 7/ 11 1/ 5/ 11 3/ 7/ 11 stowaway idle and disorderly procuring liquor 7/ 6/ 11 assault 8/ 6/ 11 breach of by- law 17/ 8/ 08 forgery and uttering .. 8/ 9/ 08 forgery default of maintenance 24/ 2/ 11 2/ 5/ 11 3/ 7/ 11 drunkenness .. obscene language idle and disorderly keeping liquor for sale default of maintenance ft. in. 1 fine or 14 days England .. seaman 1863 5 florid .. grey grey .. long 31/ 7/ 11 3 months N. Zealand preSBer 1889 5 6ft dark .. dark brown .. long 31/ 7/ 11 fine or 1 month Scotland .. domestic .. 1850 5 04 sallow .. grey hazel .. broad 2/ 8/ 11 2 months N. Zealand bootmaker .. 1867 5 94 fair brown blue long 5/ 8/ 11 fine or 48 hours 3 years N. Zealand tailor 1875 5 6i fair brown blue .. medium 5/ 8/ 11 4 years 6 months N. Zealand sawmill- 1886 5 5ft fresh .. brown blue medium 31/ 7/ 11 labourer fine or 24 hours N. Zealand labourer 1874 5 7 fresh .. brown hazel .. large 2/ 8/ 11 fine or 3 mo's 30 days America .. labourer 1863 5 6J fresh .. brown grey .. medium 1/ 8/ 11 3 months Ireland domestic .. 1868 5 24 florid .. dark brown grey .. broad 3/ 8/ 11 4 months England .. labourer 1872 5 6i fair brown grey .. medium 5/ 8/ 11 4 months N. Zealand carpenter .. 1887 5 5 fresh .. brown grey .. broad 4/ 8/ 11 2 months N. Zealand labourer 1851 5 10J fresh .. grey It. grey large 3/ 8/ 11 48 hours England .. old- age pensioner 1846 5 24 fair grey grey .. pointed .. 5/ 8/ 11 Girl, flag, heart, ballet- girl, orossed hands, and heart on right forearm ; flower on right hand ; sailor, flag, anchor, bracelet, man, and woman on left forearm. F. P. Horse, hand, and flower on light arm; soar on right thumb. F. P. Repeatedly convicted. F. P. ( See I'olice Gazette, 1911, page 282.) ( See Police Gazette, 1911, page 145 ) 4 p. c. P. P. Photographed at L\ ttelton, 4/ 8/ 11. Portion of sentence remitted. ( See Police Gazette, 1908, page 335.) Scar on right leg. F. P. F. P. Numerous p. c. Woman's bust on left forearm ; scar on forehead and left thumb. F. P. ( See Police Gazette, 1909, page 263.) Three upper front teeth broken. Numerous p. c. Large scat under left foot. ( See Police Gazette, 1910, page 144.) Scar on right ring- finger-}' dimpled ohin. F. P. 7 p. c. ( S e Police Gazette, 1911, page 212.) 8 p. c. Weak eyes. E'. P. ( See Police Gazette, 1910, page 75.) By Authority: JOHN MACKAY, Government Printer, Wellington.