FIELDING, APPELLANT v. TURNER, RESPONDENT. Gaming-Unlawful Gaming-Common Gaming-house-Shop containing Automatic Machine-Gaming House Act, 1854 (17 & 18 Vict. c. 38), s. 4. The appellant, a shopkeeper, had in his shop an automatic machine which was worked on the following principle: A person desiring to use it put a penny in a slot and pressed and released a spring. According to the force with which this was done the penny fell into one or other of seven compartments. If it fell into either of two compartments it was automatically returned to the sender, and if it fell into the centre compartment he received from the machine a ticket entitling him to twopennyworth of articles sold in the shop. If, however, the penny fell into any of the other compartments it was retained by the machine. It having been proved that a number of boys and men had used the machine on certain days and had lost and won money by means of it, the appellant was convicted under s. 4 of the Gaming House Act, 1854, of having opened, kept, and used his shop for the purpose of unlawful gaming being carried on therein : Held, that the conviction was right. CASE stated by justices. The appellant, who was the occupier of a shop in. Manchester Road, in the borough of Oldham, was convicted under the Gaming House Act, 1854, s. 4, for having unlawfully opened, kept, and used the shop for the purpose of unlawful gaming being carried on therein on the 12th, 19th, and 22nd days of April, 1902. The facts were as follows. The appellant kept a shop wherein he sold sweetmeats, herbs, and herb-beer, and on the days in question he had on his shop counter an automatic machine working on the penny-in-the-slot system. The working of the machine was thus described in the case: "A person desiring to work the machine puts a penny in the slot, and then pulls down a spring by means of a knob, and then lets the knob go suddenly, and the spring flies up, and the penny is thus sent on its journey and may go into one of seven compartments. If it goes into either of two compartments the penny is returned to the sender. If it goes into one of four compartments the penny is retained in the machine and the 1903 April 1, 8. บ. TURNER. 1903 sender gets nothing for it. If the penny goes into the centre FIELDING compartment (the bull's-eye, as it is called) the sender receives from the machine a ticket entitling him to receive from the appellant twopennyworth of sweets, or it may be cigars or cigarettes." It was proved that on the days in question a number of boys and some men put pennies into the machine with varying fortunes, sometimes winning and more often losing. In cross-examination some of the boys who gave evidence admitted that there was some skill in working the machine, and that a person who was accustomed to it might win as often as he lost. The question for the opinion of the Court was whether the appellant was rightfully convicted. (1) Llewelyn Davies, for the appellant. This was not a game. A game cannot be played unless there are at least two players, and a person cannot play a game against an automatic machine. But if it is a game it is a game of skill. The evidence shews that by constant use of the machine the person putting the penny in it can ascertain and use the proper amount of force requisite to send the penny into the winning compartment. But even if what the boys did amounted to " gaming," it was not "unlawful gaming" within the meaning of the section. In Jenks v. Turpin (2) Hawkins J. pointed out that in order to constitute "unlawful gaming" there must either be playing at games which are unlawful per se, i.e., games which have been declared unlawful by statute, or the game must be played in a common gaming-house. It has no doubt been decided that playing a game for money is gaming: Dyson v. Mason (3); but to make such gaming unlawful-if the game be not one of those specified-the game must be played in a common (1) By s. 4 of the Gaming House Act, 1854 (17 & 18 Vict. c. 38), “ Any person being the owner or occupier or having the use of any house, room, or place who shall open, keep, or use the same for the purpose of unlawful gaming being carried on therein. . . . may on summary conviction thereof before any two justices of the peace (2) (1884) 13 Q. B. D. 505. gaming-house: Russell on Crimes, vol. i. p. 291 (6th ed.). A common gaming-house has never been completely defined, but it seems clear that there must be circumstances of enormity and extravagance about it, such as the drawing together of disorderly crowds and causing great temptations to idleness: Hawkins P. C., bk. 1, c. 75, s. 6 (7th ed.); Rex v. Rogier (1); Blackstone Comm. vol. iv. c. 13, s. 8, p. 171 (8th ed.); Russell on Crimes, vol. i. p. 741 (6th ed.). In order to constitute a common gaming-house the gaming carried on in it must be excessive: Jenks v. Turpin. (2) This This was not one of the specified games made unlawful by statute. The first Act on the subject was 33 Hen. 8, c. 9, which made it unlawful for persons of humble rank to play at certain named games, which included some games of skill. The 16 Car. 2, c. 7, and the 9 Anne, c. 14, both of which are now repealed, dealt with excessive or fraudulent gaming. Then came three Acts of George II.-12 Geo. 2, c. 28, 13 Geo. 2, c. 19, and 18 Geo. 2, c. 34-each of which prohibited certain specified games. In 1845 the 8 & 9 Vict. c. 109 was passed "to amend the law concerning games and wagers." Act repealed so much of 33 Hen. 8., c. 9, as prohibited games of mere skill, and by s. 2 defined the evidence necessary in default of other evidence to prove a house to be a common gaming-house-that is to say, that such house must be kept or used for playing therein at an unlawful game, and that a bank is kept there by one or more of the players, 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. That definition in every respect excludes this case. The game, such as it was, was one into which skill entered; there was no banker, or person in the position of a banker; the chances of all the players were equal; and, finally, the house was not kept for the purpose of playing the game, but it was a shop in which this machine was only a casual piece of furniture. Every one putting a penny in the machine would enter the shop as a customer, and if he won (1) (1823) 1 B. & C. 272; 2 D. & R. 431; 25 R. R. 393. (2) 13 Q. B. D. 505. 1903 FIELDING V. TURNER. 1903 FIELDING v. TURNER. he only got a ticket entitling him to some of the products sold in the shop. R. B. D. Acland, for the respondent. Whatever may have been the main object of the house, it is within the section if unlawful gaming was permitted there. [LORD ALVERSTONE C.J. We only require to hear you on the question whether what was done amounted to unlawful gaming.] Gaming is unlawful either because it takes place in a gaminghouse or because it is of such a nature that it is contrary to good morals. The amount of the stakes, or even the fact of winning or losing money, is not material. The Act of Henry VIII. prohibited even games of skill on the ground that they prevented people from attending to their duties to the State, such as practising archery; and although games of mere skill were allowed by the Act of 8 & 9 Vict., the principle of the Act of Henry VIII. still applies. In this case skill had no part in the game, since proficiency even if attained with one automatic machine would be of no avail with another in which the strength of the spring might be different. The case falls clearly within s. 2 of 8 & 9 Vict. c. 109, because, although there may have been no bankers, the other clause of the section is satisfied, and the chances of the players, including amongst the players the person against whom the persons putting pennies in the machine staked (that is to say, the appellant), were not equal. On the circumstances, what was done tended to demoralise the boys, and was therefore unlawful. Santongeli v. Neilson (1) has no application to this case, although the facts are similar, as that decision turned on the construction of another Act of Parliament. Llewelyn Davies replied. Cur. adv. vult. April 8. The judgment of the Court (Lord Alverstone C.J., Wills and Channell JJ.) was read by LORD ALVERSTONE C.J. This was an appeal from a conviction by the Oldham magistrates, by which the appellant (1) (1900) 3 F. (Just. Cas.) 13. was convicted under s. 4 of 17 & 18 Vict. c. 38 of keeping and using a house for the purpose of unlawful gaming. [His Lordship stated the facts as already set forth, and proceeded :-] It was argued before us that the conviction was wrong on the ground that there was no evidence of unlawful gaming within the section. The first ground on which this contention was founded was that, if a game at all, the use of the automatic machine in question constituted a game of skill. We are clearly of opinion that this contention cannot be maintained. In the proper sense of the word, skill has no effect upon the act done by the person who puts the penny into the slot. No doubt continuous practice with the same machine might enable a person to acquire knowledge as to the strength of the particular spring, and thereby enable him to be more successful in making the penny fall into the centre compartment than in the case of a person who had not the same practice of the machine. On the first and probably on many occasions it is a pure question of chance into which compartment the penny will fall; no aim can be taken, and it is not unimportant to observe, in connection with another part of the case, that there are four compartments into which it can fall with no return to the person inserting it, as against one into which if the penny falls it will enable the person inserting it to receive a ticket of the nominal value of twopence. It was then argued that there was no unlawful gaming because there was no individual who competed or played a game with the person who inserted the penny in the slot. This, we think, involves a fallacy. There are many lotteries and games of chance in which only the persons who actually stake take part; but here the holder or owner of the machine may be said to back his chance of the money falling into one of the four compartments, in which case it will be retained without return, as against the centre compartment, out of which alone any prize can be drawn. The keeper or owner of any such machine backs his chance against the person who uses it. Subsidiary contentions were raised that the keeping of such a machine in a shop was not keeping or using a room 1903 FIELDING V. TURNER. Lord Alverstone |