By section 6: “In any proceeding against any person under this Act, such person and his wife, or husband, as the case may be, may, if such person thinks fit, be called, sworn, examined, and cross-examined as an ordinary witness in the case.” Scotland is not excluded from the Act.
Welshing.
The oft-disputed question of whether “welshing” is a penal offence has been set at rest by Reg. v. Buckmaster.[[398]] It was there held that it amounted to larceny by trick, on the ground that there being no intention on the prisoner’s part when he took the prosecutor’s money of paying the prosecutor if he won his bet, there was no real contract between the two which could pass the property in the money paid by the prosecutor to the prisoner.
PROCEDURE.
Procedure.
We now come to treat of the procedure whereby the laws against gaming and betting houses can be enforced. It will be observed that it differs in some important respects from the ordinary procedure in criminal cases, in being more drastic and to a great extent less considerate to the liberty of the subject owing to the great difficulty of detecting the offences and the facility with which the law might be evaded if ordinary forms had to be observed.
The procedure is slightly different in the case of gaming and betting houses, so they must be treated separately.
Gaming houses.
I. As to gaming houses, by 25 George II., c. 36, ss. 5 and 6, it was provided that if any two inhabitants of a parish should give notice to a constable of any person keeping a gaming house, the constable should take such persons before a justice of the peace; that the justice should, on the sworn information of such persons, bind them over to prosecute at the Assizes or Sessions, and issue a warrant for the arrest of the person accused and bind him over to answer any indictment that might be found against him. It seems that the section leaves the magistrate no discretion as to granting a warrant[[399]]; but as it only applies to proceedings preliminary to indictments it is, in practice, superseded by the procedure prescribed in the more modern Statutes. This procedure is different according as the house is situated in the Metropolis or out of that district. |In the Metropolis.| In the Metropolis, by 2 & 3 Vict. c. 47, section 48, power was given to the Commissioners of the Police Force, on the report of any superintendent, that there were good grounds for believing that any house within the district was used as a common gaming house, and on two witnesses making oath before a magistrate, to empower the superintendent and other constables to enter the house, arrest all persons found therein,[[400]] and destroy all tables, instruments of gaming, money, and securities for money. By 8 & 9 Vict., c. 109, section 6, the Commissioners are invested with the same powers, except that the necessity of two witnesses making oath before a magistrate is dispensed with; and the power to seize (and not destroy) instruments of gaming is given.
This latter section does not empower Metropolitan magistrates to issue such warrant as the Betting House Act does.