[CROWN CASE RESERVED.]

1894.

Nov. 10, 17. S THE QUEEN v. BROWN.

Gaming Betting-House-"Resorting thereto "-Betting-House Act, 1853 (16 & 17 Vict. c. 119), s. 1-Defendant Electing to be Indicted-Charges in Indictment.

The resorting to a betting-house for the purpose of betting must be actual and physical. Sending letters and telegrams is not a 66 resorting thereto" within section 1 of the Betting-House Act, 1853. Where a defendant summoned for keeping a bettinghouse elects to be indicted instead of being summarily dealt with, the indictment may contain any charges, beyond the offence charged in the summons, which are justified or covered by the evidence in the depositions taken before the Court of summary juris

diction.

This was a Case stated for the opinion of the Court for the Consideration of Crown Cases Reserved as follows:

"At the Midsummer quarter sessions for the borough of Plymouth held before me, Henry Mason Bompas, the Recorder of the said borough, a true bill was found by the grand jury against Charles Thomas Brown for misdemeanour. The indict

ment, a copy of which is annexed to, and forms part of this Case, after reciting that the defendant had been summoned before the magistrates, and upon being asked had elected to be tried by a jury, contained four counts for offences under the 1st section of the Betting-House Act (16 & 17 Vict. c. 119) (1). Before the defendant pleaded it was objected that the in

(1) 16 & 17 Vict. c. 119, s. 1: "No house office, room, or other place shall be opened, kept or used for the purpose of the owner, occupier, or keeper thereof, or any person using the same, or any person procured or employed by, or acting for or on behalf of such owner, occupier, or keeper, or person using the same, or of any person having the care or management or in any manner conducting the business there of betting with persons resorting thereto; or for the purpose of any money or valuable thing being received by or on behalf of such owner, occupier, keeper, or person as aforesaid, as or for the consideration for any assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse-race, or other race, fight, game, sport, or exercise, or as or for the consideration for securing the paying or giving by some other person of any money or valuable thing on any such event or contingency as aforesaid; and every house, office, room, or other place opened, kept, or used for the purposes aforesaid, or any of them, is hereby declared to be a common nuisance and contrary to law."

B

THE QUEEN v. BROWN, C.C.R. dictment was bad, because each count in it alleged a different offence from that with which the defendant was charged before the magistrates, or because it contained counts for other offences than that for which the defendant was charged before the magistrates. It was proved that the defendant was summoned before the magistrates (a copy of the summons is annexed to and forms part of this Case). The defendant, having appeared to the summons, was asked by the magistrates if he wished to be tried by a jury, and he elected to be so tried. The magistrates proceeded to hear the evidence on the charge. The charge in the depositions was stated as follows: "That he the said Charles Thomas Brown, on the 17th and 18th days of April, 1894, at the borough of Plymouth aforesaid, being then occupier of a certain house situate at No. 11 Alfred Street there, unlawfully did use the said house for the purpose of betting with persons resorting thereto upon certain events and contingencies of and relating to certain horse-races, contrary to the statute in that case made and provided and against the peace of our Lady the Queen, her crown and dignity.'

"The evidence taken before the magistrates was sufficient to support all the four counts in the indictment. I held that the indictment was good, but agreed to state a Case for the opinion of the Court for Crown Cases Reserved.

"The defendant then pleaded not guilty, and was tried before me. It was proved that the defendant was occupier of the house 11 Alfred Street, Plymouth, and that he used the house for the purpose of betting with any persons who wrote or telegraphed to him asking him to bet with them.

It was also proved that he used the house for the purpose of money being received on his behalf, as and for the consideration for an agreement to pay thereafter money on the event of a horse-race. There was no evidence that any person had actually gone to the house for the purpose of betting with the defendant other than those who had gone to pay money under the circumstances described in the second count of the indictment. It was objected that there was no evidence

of the defendant having betted with persons resorting to the house. I directed the jury that it was not necessary for a

conviction under the first count of this indictment that the defendant's house should have been used for the purpose of betting with persons who physically came to the house, but that if the house was used by the defendant as an office to which any person who wished to bet with him were to send their communications, and if persons were in the habit of sending letters and telegrams to him there, directing him to make bets with them, such persons resorted to the house within the meaning of the Act, and the jury might find the defendant guilty of using the house for betting with persons resorting thereto; and I directed the jury to give their verdict separately upon the first and second counts.

"The jury found the defendant guilty upon the first count and also upon the second count. I sentenced the defendant to a fine of 3007. on the first count, and to a fine of 1007. on the second count, and I respited the judgment till the Case to be stated by me should be heard by the Court for Crown Cases Reserved or till the 1st day of January, 1895, whichever should first happen. It was objected on behalf of the defendant that I had no jurisdiction to sentence the defendant to a greater fine than 1007. or to more than one penalty.

"The questions for the Court are —

"1. Whether the indictment was bad for not alleging the same offence as that in respect of which the defendant had claimed to be tried by a jury, or for containing more than one count, or for containing a count differing from the charge upon which the defendant had been brought before the magistrates.

"2. Whether the defendant could be guilty of using his house for betting with persons resorting thereto although such persons only sent letters and telegrams to the house, and did not personally come there.

"3. Whether I had jurisdiction to fine the defendant more than one penalty of 1007.

"If the Court shall answer the first

THE QUEEN v. BROWN, C.C.R. question in the affirmative, the judgment is to be reversed, and the defendant acquitted.

"If the Court shall answer the first question in the negative, and either the second or third question also in the negative, the defendant is to be acquitted on the first count, and judgment is to stand upon the second count that the defendant be fined 1007."

Copy of Summons.

"To Charles Thomas Brown, of 11 Alfred Street.

"Information has been laid this day by Joseph Davidson Sowerby for that you, on the 17th and 18th days of April, 1894, at the borough aforesaid, being then occupier of a certain house situate at 11 Alfred Street there, unlawfully did use the said house for the purpose of betting with persons resorting thereto upon certain events and contingencies of and relating to certain horse-races, contrary to the form of the statute in such case made and provided.

"You are therefore hereby summoned to appear before the Court of summary jurisdiction sitting in the Petty Sessional Court House at the Guildhall in the said borough of Plymouth, on Friday, the 27th day of April, 1894, at the hour of eleven in the forenoon, to answer to the said information.

"Dated the 21st day of April, 1894."

Copy of Indictment.

"Borough of Plymouth, to wit.-The jurors for our Lady the Queen upon their oath present that Charles Thomas Brown was charged before a Court of summary jurisdiction holden at the Petty Sessional Court in the Guildhall of the borough of Plymouth in the county of Devon, on the twenty-eighth day of April, in the year of our Lord One thousand eight hundred and ninety-four, with offences-to wit the offences hereinafter in several counts charged and stated; and did then on appearing before the said Court of summary jurisdiction, and before the said charges were gone into, claim to be tried by a jury.

"First count. And the jurors aforesaid, upon their oath aforesaid, present that

the said Charles Thomas Brown was the occupier of a house and rooms in the said house numbered 11 Alfred Street in the said borough of Plymouth, and that the said Charles Thomas Brown, being such occupier as aforesaid, on the seventeenth and eighteenth days of April, in the year of our Lord One thousand eight hundred and ninety-four, unlawfully did open, keep, and use the said rooms in the said house for the purpose of betting with persons resorting thereto, to the great damage and common nuisance of all the liege subjects of our Lady the Queen there inhabiting, being, residing, and passing, to the evil example of all others in like case offending, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

"Second count.-And the jurors aforesaid, upon their oath aforesaid, do further present that the said Charles Thomas Brown was the occupier of a house and rooms in the said house, to wit a house numbered 11 Alfred Street in the said borough of Plymouth, and that he the said Charles Thomas Brown, being such occupier as aforesaid, on the seventeenth and eighteenth days of April, in the year of our Lord One thousand eight hundred and ninety-four, unlawfully did open, keep, and use the said rooms in the said house for the purpose of money being received by and on behalf of him the said Charles Thomas Brown, then being the said person occupying the said house as aforesaid, as and for the consideration for an undertaking, promise, and agreement to pay thereafter money on the contingency of and relating to horse-races, to the great danger and common nuisance of all the liege subjects of our Lady the Queen there inhabiting, being, residing, and passing, to the evil example of all others in like case offending, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

"Third count-And the jurors aforesaid, upon their oath aforesaid, do further present that the said Charles Thomas Brown, being a person using a certain