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JAYAWARDANA v. DON THOMAS et al.P. C., Tangalla, 9,456.
Criminal Procedure Code, e. 207—Misjoinder of accused— Unlawful gaming—Keeping a common gaming house—Evidence—Ordinance No. 17 of 1889.
It is a misjoinder to try a person charged with the offence of keepinga common gaming-house along with one changed with unlawful gaming.
The essence of the offence of unlawful gaming under OrdinanceNo. 17 of 1889 is the publicity which attracts idlers of all sorts tovarious forms of public nuisance. It is therefore incumbent on theprosecution, on a charge of unlawful gaming, to prove that the housein which the gaming was carried on was a common gaming-place.
If a man choose to allow the public access to his house, with orwithout payment, to play with cards for money, be uses it as a commongaming-house. But any number of a man’s friends or acquaintancesmay play in his house every day with cards for money withoutoffence being committed against the Ordinance.
N appeal against a conviction nnder the Ordinance No. 17 of1889—
Domhorat, for appellants, contended that the proceedings wereirregular. Unlawful gaming and keeping a common gaming-housebeing two distinct offences, the 14th accused who was chargedwith keeping a common gaming-house should not have been putupon his trial together with the other accused who were chargedwith unlawful gaming. This court had held so in 23,756, P. C.,Mitara (11th July, 1895). And there was no evidence of unlawfulgaming.
Drieberg, heard contra.
5th November, 1895. WITHERS, J.—
The fourteenth accused in this case has been convicted ofkeeping a common gaming-house, and the other accused ofunlawful gaming.
The fourteenth accused should have been tried separately fromthe others in accordance with section 207, Criminal ProcedureCode. The offence of keeping a gaming-house is quite distinctfrom the offence of unlawful gaming.
In any case I should quash the conviction against the fourteenthaccused. But having heard the whole case laid^ before me bycounsel, I come to the conclusion that the conviction cannot besustained againBt any of the appellants.
As I have often said before, the policy of the Gaming Ordinanceis to prevent people from betting or playing games for a stake ina public place, and to prevent them from turning private housesinto public gaming-places. The real essence of the offence is the
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publicity which attracts idlers of all sorts to various forms ofpublic nuisance. Before any of these appellants could be con-victed, it was incumbent on the prosecution to prove that thehouse in which the accused were evidently playing with cards formoney is a common gaming-place.
The house, in thiB case, is the private dwelling house of thefourteenth accused, and if a man chooses to allow the publicaccess to his house, with or without payment, to play with cardsfor money, he uses it as a common gaming-house.
Any number of a man’s friends or acquaintances may play inhis house every day with cards for money, without an offencebeing committed against the Ordinance.
I have no doubt the Magistrate is right iu his finding thatseveral people were playing with cards for money on the night inquestion, including the fourteenth accused and the second accused.That does not of itself constitute unlawful gaming. It is for theprosecution to prove that on the night in question anybody mighthave come to the house and join in the game played, whether hepaid for the privilege or not. Accordingly, the prosecution isbound to prove that the house was open to the public on thatnight; of this there is really no evidence to my mind. Accordingly,I must set aside the conviction and acquit and discharge all theaccused.
JAYAWARDANA v. DON THOMAS et al