THOMPSON v. MASON. 1904. the slot, pulls a knob, and on releasing such knob the penny flies up into one of five compartments. If the penny goes into either of two compartments it is returned to the person using the machine; if it goes into either of the two others it is retained in the machine; but if it goes into the fifth he receives a ticket by which he can have a 3d. cigar or its value at his option. machine- It was established by evidence that dexterity could be acquired to some extent by the operator by practice, but the magistrate came to the conclusion that it was not proved that the chances were alike favourable to the appellant and the operator. Gaming Automatic Game of chance or skillGaming House Act, 1854-17 & 18 Vict. c. 38. 1 Held, that T. was properly convicted of permitting the shop to be CAS At the date of the alleged offence, and for some time prior thereto, the appellant carried on the business of a tobacconist in the shop in question, and kept therein for the use of persons who frequented the shop an automatic machine worked on the penny in the slot system, and supplied by the Northern Automatic Company Limited. The working of the machine was this described: Having placed a penny in the slot, title operator pulls down a spring by means of a knob and then suddenly releases the mob, whereupon the spring flies up, and the penity is projected into one of five compartments. If in the coursuit of its flight the penny finds its way into either of two compartments it is returned to the operator; if it goes into either oanf two other compartments it is retained in the machine and is lost to the operator. If the penny falls into the fifth (the centre) compartment, the operator receives a ticket entitling him to receivee appellant a 3d. cigar or its value at his option. il from the he user of It was contended on behalf of the appellant that td from a the machine constituted a game of skill as distinguish of skill, game of chance, or, at all events, was a game partly practice. inasmuch as dexterity in the play could be acquired by Evidence In support of that contention it was established by ecquired before the magistrate that such dexterity could in fact be ar with to some extent by continuous practice with the machine q machines of similar construction. inion ง 3; The magistrate, however, on this contention was of opily that the judgment in Fielder v. Turner (89 L. T. Rep. 27 (1903) 1 K. B. 867) was conclusive against the contention, seei that the construction of the machine described in that case an its operation (so far as the mode of play was concerned) were in d all respects similar to the construction and operation of the THOMPSON machine in use on the appellant's premises. It was further contended for the appellant that even if the game played were one of chance and not of skill, yet the gaming was not unlawful gaming, inasmuch as it was not proved that the chances were not alike favourable to the operator and to the appellant, and that the decision in Fielder v. Turner (sup.) was adverse to the appellant in that case, because the chances of the game played were obviously not alike favourable to him and to the operator, there being four compartments (out of seven) in which the coin was lost to the operator. No evidence was offered by the appellant to prove that the construction and physical condition of the machine in his shop and the force and adjustment of the spring were such that it was an absolutely even chance that the penny would fall into any one of the five compartments, and the magistrate was of opinion (except on such an assumption of fact) it could not be established that the chances were alike favourable to the appellant and to the operator. If that assumption were made, the magistrate was of opinion, as a matter of arithmetic (though no evidence was tendered on the point), that the expectation of the value emerging from the machine on the insertion of a penny into the slot would on the average be 3d. + (0d. x 2) + (1d. × 2) =1d. That is to say, the result in the long run, after a vast series of experiments by the same customer, would be that neither party would win or lose. There was, however, no proof that this assumption was in fact well founded. It was urged on behalf of the respondent that, if indeed it were well founded (seeing that practice with the same machine would admittedly give an operator a greater chance of success than he would enjoy on the first occasion), it would follow that the user of the machine by different customers, many of whom frequently operated and acquired dexterity, must in the long run result in loss to the appellant, and it was contended that if this were so the machine could be retained by him only for the purpose of inducing custom by encouraging a spirit of gambling. It was further contended for the respondent that playing at any game of mere chance may amount to unlawful gaming, and reference was made to the observation of Hawkins, J. in Jinks v. Turpin (50 L. T. Rep. 808; 13 Q. B. Div. p. 513), that regard must be had to the illegality of the gaming, not merely to the illegality of the game, and it was also contended that the observations of the Court in Fielding v. Turner (sup.) had reference to the facts of that particular case, and were not intended to lay down as a principle of law that there could be no unlawful gaming where the chances of the game as played were v. MASON. 1904. GamingAutomatic machineGame of chance or skillGaming House Act, 1854-17 & 18 Vict. c. 38. THOMPSON alike favourable to all the players, and that if it were otherwise a shopkeeper might habitually play pitch and toss with his บ. MASON. 1904. Gaming- machine- chance or skillGaming House Act, 1854-17 & 18 Vict. c. 38. customers. It was contended on behalf of the appellant that using the machine in the manner described did not amount to unlawful gaming. The magistrate came to the conclusion that it was not proved that the chances were alike favourable to the appellant and to the operator, and that in any event the user of the machine in the circumstances mentioned constituted the offence alleged in the information, and he accordingly convicted the appellant. Danckwerts, K.C. and Llewelyn Davies for the appellant.The conviction here was wrong, for this is not a game of mere chance within Jenks v. Turpin (50 L. T. Rep. 808; 13 Q. B. Div. 505). The present case is very different to Fielder v. Turner (89 L. T. Rep. 273; (1903) 1 K. B. 867), for there the chances were four to three against the player, but here they are three to two in his favour. M. Lush, K.C. and E. O. Simpson for the respondent.-The findings of the magistrate show that this was a game of pure chance. Mere dexterity acquired after practice cannot make a game of chance a game of skill. Fielding v. Turner really disposes of this case. Lord ALVERSTONE, C.J.-If the magistrate here had not found the facts in this case, but had merely held that the facts in Fielder v. Turner were binding on him, I think we should have had to send the case back to him; but he has not done that. In this case the elements of chance were of the same kind as in Fielder v. Turner; but it was contended that there was more evidence in this case that it was a game of skill and not of chance, and that it was not proved that the chances were not alike favourable to the operator and the appellant. I think here that the magistrate meant to find that this was a game of chance, and that the element of skill involved in it was of the same kind as in Fielder v. Turner. I do not think that there is anything in this case to turn the game of chance into a game of skill, and it cannot be said that if a person goes on long enough and so becomes more successful after a time that that prevents the game being a game of chance. WILLS and KENNEDY, JJ. concurred. Appeal dismissed. KING'S BENCH DIVISION. Thursday, March 3, 1904. (Before Lord ALVERSTONE, C.J., WILLS and KENNEDY, JJ.) BEARDSLEY (app.) v. GIDDINGS (resp.) (a) Sale of food and drugs-Institution of prosecution—Laying of information-Service of summons-Sale of Food and Drugs Act, 1899 (62 & 63 Vict. c. 51), s. 19 (1). A prosecution is instituted within sect. 19 (1) of the Sale of Food and Drugs Act, 1899, at the date on which the information is laid and the summons is issued, and not on the date when such summons is served. CASE stated on an information preferred by the appellant against the respondent for that on the 23rd day of June, 1903, he unlawfully sold milk not of the nature, substance, and quality as that demanded by the purchaser, but deficient in milk fat to the extent of 15 per cent. The information was laid by the appellant on the 18th day of July, 1903, and the summons was issued and signed by a justice of the peace and left by the appellant with the police for service on the same day. The summons, however, was not served upon the respondent until the 22nd day of July, 1903. The summons was returnable at the petty sessions held on the 18th day of August, 1903. Sect. 19, sub-sect. 1, of the Sale of Food and Drugs Act, 1899 (62 & 63 Vict. c. 51) is as follows: (1) When any article of food or drug has been purchased from any person for test purposes any prosecution under the Sale of Food and Drugs Acts in respect thereof, notwithstanding anything contained in sect. 20 of the Sale of Food and Drugs Act, 1875, shall not be instituted after the expiration of twenty-eight days from the time of the purchase. At the hearing of the summons the solicitor for the respondent took the preliminary objection that the proceedings had not been instituted within the time specified under the above section, the alleged offence having been committed on the 23rd day of June, 1903, and the summons not served until the 22nd day of July following, the summons therefore being served after the expiration of twenty-eight days from the date of the alleged offence. The respondent's solicitor contended that the laying of the information and issue of a summons was not the (a) Reported by W. DE B, HERBERT, Esq., Barrister-at-Law, v. BEARDSLEY institution of the prosecution and that the prosecution was not instituted until the service of the summons, and that as the summons had not been served until after the expiration of twenty-eight days it must be dismissed. GIDDINGS. 1904. Sale of Food and Drugs Acts- Procedure Institution of prosecution Information or summons The appellant contended that the date when he laid the information was the date from which the commencement of the prosecution was to be calculated, and as the information was laid and summons issued within the twenty-eight days the prosecution was instituted within the time limit. The justices were of opinion that the time from which the institution of the prosecution was to be calculated was the date 62 & 63 Vict. of the service of the summons, and not the date of the laying of c. 51, s. 19 (1). the information, and they therefore held that the proceedings had not been instituted within the twenty-eight days from the date of the alleged offence. They therefore held the objection made by the respondent's solicitor to be good and dismissed the summons. J. R. Randolph for the appellant.-The institution of the prosecution under sect. 19 (1) of the Sale of Food and Drugs Act, 1899, means the institution of the prosecution by the prosecutor, and that is done when he lays the information. When he has done that, he can do no more, as the summons is issued by the justices, and when so issued is served by the police. In Thorpe v. Priestnall, (1897) 1 Q. B. 159, it was held that the prosecution was instituted when the information was laid. The justices appear to have considered Cowling v. Taylor's Drug Company (66 J. P. 11), where it was decided that a prosecution under the Sale of Food and Drugs Acts is not instituted until the summons has been served as binding upon them. That case certainly does not bind this Court, and I submit that it was wrongly decided. J. A. Simon for the respondent.-Thorpe v. Priestnall (sup.) was decided under the Sunday Observance Act, 1676, but in order to find out whether the institution of proceedings refers to the laying of the information or the service of the summons, it is necessary to look at the whole scheme of the Sale of Food and Drugs Acts. The reason for giving a limited time under these statutes, which deal with articles of a more or less perishable nature, is to let the person who sold the food or drug know within a reasonable time that proceedings are going to be taken against him. Under sect. 10 of the Sale of Food and Drugs Act, 1879, it was provided that the service of the summons, if the thing was perishable, was to be within twenty-eight days. That section is now repealed, and, if the contention of the appellant here is right, the seller, for whose protection these sections were inserted, is really in a worse position, and this could not have been intended. In Ditcher v. Denison (11 Moo. P. C. 324) the service of a citation was held to be the institution of the proceedings. He also referred to Yates v. The Queen (52 L. T. Rep. 305; 14 Q. B. Div. 648). |