BETTING IN A PUBLIC PLACE.
By 5 George IV., c. 83, section 4, any person playing or betting in any street, road, highway or other open or public place, at or with any table or instrument of gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond.
Instruments of gaming.
In Watson v. Martin[[424]] it was held that tossing for halfpence was not within the statute. To supplement this defect in the statute, by 31 & 32 Vict., c. 52, section 3, the words “coin, card, token or other article used as an instrument or means of such wagering or gaming,” are added so as to include pitch and toss. But in Hirst v. Molesbury[[425]] it was held that the latter statute did not apply to a deposit of money by a person in the hands of another, in a public place, to abide the event of a wager.
In Tollett v. Thomas,[[426]] defendant was on a race course, and had a machine called a pari-mutuel. This machine had on it numbers, beside each of which were three holes, and behind these holes were figures which by a mechanical contrivance were made to shift on the turning of a key, so that any number from 0 to 999 would be exhibited behind these holes. On the top of the machine was the word “total,” and beside it were holes in which could be exhibited in similar manner figures shifting on the turn of a key. The defendant appropriated each of these numbers to designate a horse about to run in a race. Any person who wished to bet on a particular horse, deposited with the appellants half-a-crown, and received a ticket with the number of the horse. The defendants then by a turn of the key altered the figures, increasing the sum indicated alongside that number by one, and the same turn of the key increased the figure beside “total” by one.
After the race had been run, the holders of tickets with the numbers of the winning horse had divided among them all the half-crowns deposited, less 10 per cent. which defendants retained as their profit.
Held (1) That this was an instrument of wagering or gaming within the Act. (2) That as the amount to be won depended on an event other than the issue of the race (i.e., it varied according to the number of persons who backed a particular horse), it was a game of chance. It was like a lottery, which (semble at p. 514) would be a game of chance within the act.
It was left open whether a horse-race was a game of chance (but see post as to games of chance).
What is a public place?
An omnibus[[427]] is a public place at any rate for some purposes.
In Turnbull v. Appleton,[[428]] colliers and their families were allowed by a company to use a large field of 30 acres for recreation. Strangers were also allowed to go and play there. On one occasion defendant played pitch and toss in the field. Held that this field was a place to which the public had access.
It has lately been decided that a railway carriage is a public place while in the course of a journey.[[429]]
So, too, a race course. See Tollett v. Thomas (ubi sup.).
36 & 37 Vict., c. 94.
The Statute 36 & 37 Vict., c. 94, repeals the Act of 1868 and provides “that any person playing or betting, by way of wagering or gaming, in any street, road, highway or other open and public place, or in any open place to which they have or are permitted to have access, at or with any table or instrument of gaming, or any coin, card, token or other article used as an instrument or means of such wagering or gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond” within the meaning of the Act of George IV., and punished under the provisions of that Act (i.e., three months’ imprisonment), or may be fined 40s. for a first offence and £5 for a subsequent offence.
It would seem that this statute is wide enough to take in a case like Doggett v. Catterns[[430]]—where it will be remembered a man had a table in Hyde Park for betting purposes.
Games of chance.
We have now to consider what really is comprehended in the term “game of chance” as used in this Statute. The writers are not aware that the exact term has been used in any other statute, though the converse expression, “game of skill,” is to be found in the Act of 1845. It is, however, to be found in various cases such as Turpin v. Jenks[[431]] and Dyson v. Mason[[432]] (see Table of Cases). In Tollett v. Thomas (ubi sup.) that a pari-mutuel was an instrument of wagering on a game of chance, although the owner was not betting himself with the depositors on the ground, that the amount which each depositor could win was a matter of uncertainty, until it was finally ascertained how many in the total had backed such depositor’s horse; the result being entirely independent of his skill.
It is submitted that the true test of whether or not a game is a game of chance, including in the term a game partially of skill and partially of chance is, whether according to the rules or scheme of the game any material part of or step in the game is determined by chance. But the term “chance” must be used in a more definite and limited sense than mere uncertainty, or even the possibility of uneven luck. The idea of chance seems to be the same as that of lot, e.g., the dealing of cards, the throwing of dice, or the spinning of a teetotum. Uncertainty is the essence of every game even if of skill; and frequently inequality of luck is an important factor. Thus in billiards or pool every stroke is an effort of skill both as to the stroke itself and the placing of the balls for next stroke; and probably (with ordinary players) few games of skill are more influenced by luck; yet in Dyson v. Mason, billiards was assumed on all sides to be a game of skill. Again, the design and scheme of a horse-race is a contest involving a trial of the speed and staying power of the horses, and the skill and nerve of the jockeys; though doubtless attended by uncertainties which need no enlargement. Still, what was assumed in Dyson v. Mason supports the view that mere uncertainty is not tantamount to chance; and if so, the question which was reserved in Tollett v. Thomas, viz.: whether or not horse-racing was a game of chance must be answered in the negative.
In Metropolis.
30 & 31 Vict., c. 134, section 24, provides that three or more persons assembled in the streets in the Metropolis for betting purposes may be fined £5 as for an obstruction.