THE KING v. ANDREE et al

122-NLR-NLR-V-42-THE-KING-v.-ANDREE-et-al.pdf


495
The King v. Andree.
1941Present: Howard C.J. and Soertsz J.
THE KING v. ANDREE et al.
54-56—D. C. (Crirn.) Colombo, 128.
Conspiracy—Elements of offence—Agreement to commit an offence not essential—Acting together with a common purpose sufficient to establish offence—Conviction based on evidence of accomplice—Failure of judge to com-ment on rule of evidence—Power of Supreme Court to examine evidencein support of the rule—Penal Code, s. 113 (a).
In a charge of conspiracy under section 113 (a) of the Penal Code it isnot necessary to prove an agreement to commit an offence either directlyor inferentially. It is sufficient to prove that the accused acted togetherwith a common purpose for or in committing an offence.
Where a Judge in acting on the evidence of an accomplice does riotactually say in his judgment that he is not unmindful of the rule withregard to corroboration of such evidence, it is open to the Supreme Courtin appeal to examine the evidence to see whether there was corroborationof the evidence in material particulars and connecting each of the accusedwith the offence of which they have been convicted.
The fact of the existence of a relationship of- master and servantbetween the first accused on the one part and the second and thirdaccused on the other does not negative any inference of conspiracy.
T
HE three appellants were tried on two counts before the District Courtof Colombo.
On the first count it was alleged that they at Colombo with others didagree to act together with a common purpose for committing an offence,viz., receiving or negotiating bets on horse races, other than taxable bets,an offence under section 10 of the Betting on Horse Racing Ordinanceand thereby committed the offence of conspiracy under section 113b ofthe Penal Code.
In the second count the charge against them was that in pursuance ofthe said conspiracy they received or negotiated with a person unknown abet, which said bet was other than a taxable, bet and that thereby theycommitted an offence punishable under section 10 of the Betting on HorseRacing Ordinance.
The learned District Judge acquitted them of the charge on the secondcount and convicted them of the charge on the first count.
H. V. Perera, K.C. (with him E. B. Wikremanayake), for the accused,appellants.—In the first count of the indictment the three accused werecharged with agreeing to act together with a common purpose for com-mitting the offence of receiving illegal bets. The agreement is a definiteact and was alleged to have taken place at a point of time within a certainperiod. Later the indictment was amended to extend the period of time.This extension of the period was improper and unfair to the accusedbecause it enabled a whole series of offences to be vaguely strung together.
There has been a good deal of misconception in this case regarding thecharge of conspiracy. Section 113 of the Penal Code has to be analysedcarefully. It differs from the corresponding section 120a of the IndianPenal Code in that the latter deals with conspiracy with reference to anillegal act ”. Similarly the English law speaks of conspiracy in relationto an “ unlawful act ”. In our law, however, conspiracy must be inrelation to “ an offence ”. The offence alleged in' the present case is thatof receiving bets under section 10 of the Betting on Horse Racing Ordi-nance (Cap. 36). But not a single act of receiving a bet was proved, for
496
HOWARD C.J.—The King v. Andree.
the accused have been acquitted on count 2 of the indictment. The mostthat can be said to have been proved in this case was the keeping, by thefirst accused, of premises for the purpose of receiving illegal bets. Butthat is not an offence under the law, and the conviction cannot stand.
Section 113 deals with various kinds of conspiracy, viz., (1) agreeing tocommit an offence, (2) agreeing to abet an offence, and (3) acting togetherwith a common purpose for committing or abetting an offence. In thiscase the subject-matter of the charge is that the accused did agree to acttogether with a common purpose for committing the offence of receivingor negotiating illegal bets. Agreement is the gist of the offence. Thereis no legal evidence in this case of an agreement to act together with acommon purpose. The offence of conspiracy is not complete until theagreement is complete. The gist of the offence lies in the forming of thescheme or agreement between the parties. The substance of the agree-ment must be an undertaking by each of the co-conspirators to dosomething towards the commission of an offence. There must be an actpromised by each of them. This is the effect of the words “ did agree toact together ”. See Russell on Crime (9th ed.), p. 1430. The second andthird accused are the employees of the first accused. If the former canbe convicted even a sweeper engaged to keep clean the premises occupiedby the first accused could have been charged as a co-conspirator.Employees acting on the mandate of their master cannot be said to beconspiring with him. The conduct of the second and third accused is notreferable to an agreement to act together with the first accused in thecommission of an offence. There is no evidence of joint action by thefirst, second, and third accused. There is no case at all against the secondand third accused. If that is so, the first accused alone cannot beconvicted of conspiracy.
The evidence of H. O. Fernando is clearly that of an accomplice. TheDistrict Judge has not directed himself correctly in regard to the necessityfor corroboration of his evidence by independent testimony. It wouldappear that he accepted Fernando’s evidence and based his verdict on itsolely because he was much impressed with the manner in which thewitness gave evidence. The leading case on the point of corroboration isRex. v. Baskerville
S. J. C. Schokman, C.C. (with him H. W. R. Weerasuriya, C.C.), for theCrown, was not called upon.
Cur. adv. vult.
July 21,1941. Howard C.J.—
I agree. It is correct as pointed out by Counsel for the appellants thatthere is one fundamental difference in the law of conspiracy as known tothe Common law in England as compared with the definition of theoffence in the Ceylon Penal Code. In England the crime of conspiracy is' committed when two or more persons agree to do an unlawful act, or todo a lawful act by unlawful means. Section 113a (1) of the Ceylon PenalCode, however, is worded as follows : —
“ If two or more persons agree to commit or abet or act together
with a common purpose for or in committing or abetting an offence,
1 L. R. 1916, 2 K. B. 658.
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HOWARD C.J.—The King v. Andree.
whether with or without any previous concert or deliberation, each ofthem is guilty of the offence of conspiracy to commit or abet thatoffence, as the case may be.”
The English law is, therefore, wider in one sense inasmuch as it createsthe crime of conspiracy not only when there is an agreement to commit anoffence, but also any unlawful act. As long, however, as this distinctionis borne in mind the law, as laid down by various English authorities withregard to the proof of conspiracy, applies in Ceylon. In Mulchay v. R.',a definition of the offence was given by Willes J., on behalf of all theJudges and accepted by the House of Lords, as follows : —
“ A conspiracy consists not merely in the intention of two or more,but in the agreement of two or more to do an unlawful act, or to do alawful act by unlawful means. So long as such a design rests inintention only, it is not indictable. When two agree to carry it intoeffect, the very plot is an act in itself, and the act of each of the parties,promise against promise, actus contra actum, capable of being enforced,if lawful, punishable if for a criminal object or for the use of criminalmeans, and so far as proof goes, conspiracy, as Grose J. said in Rex. v.Brissac *, is generally a matter of inference deduced from certaincriminal acts of the parties accused, done in pursuance of an apparentcriminal purpose in common between them.”.
I have had the opportunity of reading the judgment of my brotherSoertsz J., and agree with him that the evidence of the principalwitness, H. O. Fernando, who was quite properly treated by theDistrict Judge as an accomplice, establishes that each of the threeappellants were accepting bets at 33, Canal road, in contravention ofthe provisions of section 10 of the Betting on Horse Racing Ordinanceand that they thereby committed an offence. Moreover there wascorroboration of the evidence of this witness. It is contended byCounsel for the appellants that, even if satisfactory .proof of theiracceptance of bets is forthcoming, the appellants are not guilty ofconspiracy having regard to the relationship of master and servant thatexisted between the first accused on the one part and the second andthird on the other. The fact that the second and third accused wereperforming certain acts on race days would not in view of this relation-ship lead to an inference that they were engaged in a conspiracy tocommit an offence against the Ordinance. He seemed to suggest thatthis relationship of master and servant negatived any inference ofconspiracy. In R. v. Kohn* a ship’s carpenter was indicted for conspiring .with the owner master and mate of a ship to cast away or destroy thevessel with intent to prejudice the underwriters. It appeared that theaccused had by the captain’s orders and with the connivance of the mateat Ramsgate cut a piece out of the ship’s side and bored holes in her' andthen plugged them. Afterwards when at sea and in hailing distance of aship in a position to rescue the crew he had taken out the plugs so as tolet the water in. The prisoner was acquitted because it was not esta-blished that, although he took part in scuttling the ship, he was a partyin England to a previous conspiracy to that end. The fact that he was. a1 L. R. 3 H. L. 306.* 4 East 171.> 176 E. R. 470.
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SOERTSZ J.—The King v. Andree.
servant obeying the orders of his master was not pleaded as a bar to hisbeing charged with taking part in a conspiracy to scuttle the vessel.
I do not, therefore, consider that the fact of the services of the secondand third accused being procured by the first accused on a hiring basisso as to establish a relationship of master and servant was in any wayinconsistent with the three of them entering into a conspiracy to contra-vene the provisions of the Betting on Horse Racing Ordinance. In thisconnection I would also refer to the following passage from the summing-up of Coleridge J., in it. v. Murphy 1 : —
" You have been properly told that this being a charge of conspiracy,if you are of opinion that the acts, though done, were done withoutcommon concert and design between these two parties, the presentcharge cannot be supported. On the other hand, I am bound to tellyou, that although the common design is the root of the charge, it is notnecessary to prove that these two parties came together and actuallyagreed in terms to have this common design, and to pursue it bycommon means, and so to carry it into execution. This is not necessarybecause in many cases of the most clearly established conspiracies 'there are no means of proving any such thing, and neither law norcommon sense requires that it should be proved. If you find that thesetwo persons .pursued by their acts the same object, often by the samemeans, one performing one part of an act, and the other anotherpart of the same act, so as to complete it, with a view to the attainmentof the object which they were pursuing, you .will be at liberty to drawthe conclusion that they have been engaged in a conspiracy to effectthat object. The question you have to ask yourselves is, ‘ Had theythis , common design, and did they pursue it by these common meansthe design being unlawful ? ’ ”
It may, of course, be that the idea of running a bucketshop emanatedfrom the mind of the first accused alone. It is not clear at what period oftime the second and third accused began to participate in the affair. As,however, the evidence establishes that at the relevant times they wereparticipating, they are, having regard to the words “ whether with orwithout any previous concert of deliberation” which occur in section 113a(1) Of our Penal Code, guilty of conspiracy.
I am in agreement with the other conclusions reached by Soertsz J.The appeals must, in these circumstances, be dismissed.
Soertsz J.—The three appellants were tried on an indictment whichcontained two counts. In the first count, as amended on October 21, 1940,it was alleged that “ on or about the months of April, May, June, Julyand August, 1939, at Colombo” they “ with others did agree to act togetherwith a common purpose for committing an offence, to wit-: Receivingor negotiating bets on horse races, other than taxable bets, anoffence under section 10 of the Betting on Horse Racing Ordinance (Cap.36), and thereby committed the offence of conspiracy punishable undersection 113b of the Penal Code In the second count, the charge laidagainst them was that “ in pursuance of the said conspiracy ”, they“ received or negotiated with a person unknown a bet, to wit, six trebles
1 173 E. R. SOS.
HOWARD C.J.—The King v. Andree.
499
on horses 7, 8, and 9 of the races run …. "on August 3, 1939,which said bet was other than a taxable bet, and that ” they “ havethereby committed an offence punishable under section 10 of the Bettingon Horse Racing Ordinance (Cap. 36) ”.
The learned trial Judge acquitted all the appellants of the charge inthe second count, and there is nothing more to be said in regard to thatmatter. But he convicted them on the charge in the first count, andsentenced the first appellant to a fine of Rs. 1,000, and each of the secondand third appellants to a fine of Rs. 500. The appeals are against theseconvictions and sentences.
Conspiracy is defined in section 113a of the Penal Code as follows : —
“ If two or more persons agree to commit or abet or act together witha common purpose for or in committing or abetting an offence, whetherwith or without previous concert or deliberation, each of them is. guiltyof conspiracy to commit or abet that offence, as the case may be. ”
This section takes conspiracy a stage further than that in which it is leftby section 100 of the Penal Code. Under section 100 those conspiringare treated as abettors, whereas section 113 makes them liable to be dealtwith either as abettors or as principal offenders.
The definition of conspiracy in section 113a may, conveniently, bebroken up thus : —
If two or more persons agree to commit or abet an offence, each of
them is guilty of the offence of conspiracy to commit or abetthat offence ;
If two or more persons act together with a common purpose for or
in committing or abetting an offence, whether with or withoutprevious concert or deliberation, each of them is guilty of theoffence of conspiracy to commit or abet that offence.
The Indian Penal Code defines criminal conspiracy as follows : —
“When two or more persons agree -to do or cause to be done (1) anillegal act, or (2) an act which is not illegal by illegal means, such anagreement is designated as criminal conspiracy ” (section 120a) .
In England, there is no statutory definition of this offence. Thedefinition generally adopted is that of Willes J. in Mulchay v. R.1: —
“ A conspiracy consists not merely in the intention of two or more,but in the agreement of two or more to do an unlawful act or to do alawful act by unlawful means. ”
It will be observed that the Indian Penal Code adopts the definition ofWilles J. except that it speaks of an “ illegal act ” and “ illegal means ”instead of “ unlawful act ” and “ unlawful means ”. Section 113a ofour Penal Code, however, differs in two material points. Firstly, in thatit is not merely an illegal or unlawful act, but an offence that must be incontemplation. In that respect, our definition is more limited in scope.Secondly, our definition makes it criminal conspiracy for two or morepersons to act together with a common purpose for or in committing orabetting an offence whether with or without previous concert or deliberation,and in that way, is. wider than the English and Indian definitions. It
L. B. 3 H. L. 317.
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SOERTSZ J.—The King v. Andree.
attaches criminal responsibility to person acting together in the commis-sion or abetment of an offence without previos agreement, in the sameway as is does to those acting in pursuance of an agreement.. The result,as it appears to me, is that in our law, an acting together in the mannerindicated is sufficient to support a charge of conspiracy, without referenceto any agreement between the parties, whereas under the English andIndian law, such an acting together will suffice only if an agreementbetween the parties acting together can, reasonably, be inferred from itWilles J. makes this quite clear when he goes on to say in the case,already referred to : —
“ And so far as proof of conspiracy goes, as Grose J. said in R. v.Brissac, it is generally a matter of inference deduced from certain actsof the parties accused done in pursuance of an apparent criminal purposein common between them. ”
Kenny puts the matter thus in Outlines of Criminal Law at p. 340 :—“As to the evidence admissible, the principles are just the same as forother crimes. But, owing to two pecularities in the circumstances towhich those principles are applied, it often seems as if there were anunusual laxity in the modes of giving proof of an accusation of con-spiracy. For (a) it rarely happens that the actual fact of the conspiringcan be proved by direct evidence, since such agreements are usuallyentered into both swiftly and secretly. Hence they can ordinarily beproved only by a mere inference from the subsequent conduct of theparties, in committing some overt acts which tend so obviously towardsthe alleged unlawful result as to suggest that they must have arisen froman agreement to bring it about. Upon each of the several isolated doings aconjectural interpretation is put; and from the aggregate of theseinterpretations an inference is drawn ….(b) by the fact that
each of the parties has, by entering into the agreement adopted all hisconfederates as agents to assist him in carrying it out.”
The main contention of Counsel for the appellants was that there wasno evidence in the present case of an agreement between the appellantsand that, if all the> evidence for the prosecution were accepted, there wasnothing more than a case of master and servants, the master giving ordersand the servants carrying them out.
In regard to this contention, under our law the position appears to be,as I have pointed out, that it is not necessary to prove agreement, eitherdirectly or inferentially. It is sufficient to prove that the accused actedtogether with a common purpose for or in committing an offence. Butassuming that an agreement has to be established, there is abundantevidence in this case from which an agreement among the accused can beinferred. In regard to the three accused, having acted together with acommon purpose for taking non-taxable bets, the evidence is overwhelm-ing. The fact that they were acting one as the master and others asservants or employees can make no difference.
The next submission of the appellants’ Counsel was that the learnedtrial Judge misdirected himself into accepting the evidence of the witness,H. O. Fernando, who, on his finding, was in accomplice with a strong
SOERTSZ J.—The King v. Andree.
501
bias against the first accused. In making this submission of misdirectionCounsel relied on the following passage in the judgment of the trialJudge:—
“ I have, therefore, very carefully considered the evidence of H. O.Fernando with a view to forming an opinion as to whether his evidenceis worthy of credit. From the manner in which he gave evidence of thevarious details both in examination-in-chief and cross-examination, itseems to me that he has, in the main, made a true disclosure of thevarious activities which were carried on by the accused and others at33, Canal Row, Fort. I have, therefore, no hesitation in accepting andacting on his evidence for the purpose of ascertaining whether hisevidence furnishes the requisite proof to establish a charge of conspiracyagainst the accused.”
Counsel submits that the learned Judge does not appear to haveappreciated the fact that it is a rule of practice which has now the forceof a rule of law that juries and Judges must be told, or must bear in mind,that the evidence of accomplices is not accepted unless corroborated inthe manner stated in the leading case of Rex v. BaskervilleIn thisinstance, Counsel contends, that the trial Judge overlooked this principleand accepted H. O. Fernando’s evidence because of his demeanour in thewitness box, and because he was able to give a circumstantial account ofthe various activities at 33, Canal Row. Counsel concedes that, if theJudge, keeping the rule as to corroboration in mind, was prepared to acton the evidence of this witness even if it was uncorroborated, there isnothing he can urge against that.
The question then is, whether the Judge had in mind the requirementin regard to corroboration. It is true that he has not said so in so manywords, but from a perusal of the judgment as a whole, it seems clear thatthe Judge was not oblivious of the rule of corroboration. At any rate,this trial was a trial by a Judge without a jury, and with the evidencenow before us, it is open to us to examine it to see whether there wascorroboration of the evidence of this witness, in material particulars, andconnecting each and everyone of the accused with the offence of whichthey have been convicted.
1 propose now to examine the evidence under two heads : —
(a) The evidence that goes to establish that bets other than taxablebets were received or negotiated at 33, Canal Row, the premisesin question ; and
(i>) The evidence that goes to establish the complicity of the first,second, and third accused in these transactions.
In regard to (a) H. O. Fernando says: —
“ I was employed under the accused …. from April, 1933,to June 8, 1939 …. Whenever there were races in Colomboor India, bets were accepted on races, treble, all-on, and straight betswere accepted. A large number of punters came to 33, Canal Row…. There were no social meetings even on race days at Canal
Row …. There were no office-bearers of the social club.There is no social club in existence there.”
1 L. R. 1916, 2 K. B. 658.
502SOERTSZ J.—The King v. Andree.
This evidence is corroborated by a considerable volume of independentevidence both oral and documentary.
Inspector Mohamed says : —
“ I myself passed 33, Canal 9ow> often on racing days from partic-ularly April, 1939 up to the day of the raid. I passed it for thepurpose of making my observations. I have seen people going in andcoming out …. I have seen a large crowd going inside thepremises and coming out of them.”
Police Sergeant Kulatunga says : —
“ I was instructed to count the number of persons entering thepremises …. It was on July 8 (1939) that I went to CanalHow with P. S. Wickremaratne and counted the number of persons.
. . . . From 10.55 to 12.30 I counted 609 persons . . . .When the people came and while going away as well as those enteringI noticed they had betting slips and race books in their hands.”
He goes on: —
“ I was ordered to keep watch again on July 15 with P. S. Wickrema-ratne. I counted the number of people who went there between 9.40and 12.35. I counted 580 persons …. The people were ofdifferent nationalities and different walks of life.”
P.C. Perera and P. C. Podimahataya say they went to these premisesto take bets. They saw many others taking' bets, but their own betswere not accepted because they were unknown to those engaged inreceiving bets.
There is also the evidence of Inspector Mohamed and the other PoliceInspector, Police Sergeants, and Constables who formed the raidingparties on August 3 and 5, that they found quite a number of men on thepremises with betting slips and money in their pockets. These areexhibits in the case. Two of these men Wijeyesinghe and Cutten werecalled by the defence. They admitted that they were on the premiseswith slips showing accepted bets in their possession—the slips shown tothem in Court. The trial Judge rejects, and in my view, rightly rejectsthe explanations given by the first accused and Wijeyesinghe and Cuttento account for these large numbers resorting to 33, Canal Row, and forthe betting slips found on Wijeyesinghe and Cutten.
There is also a great volume, of real evidence to show that these premiseswere used for negotiating bets. To mention a few, on the occasion ofthe raid on August 5, the Police Officers found exhibits P 25a-h, crumpledup betting slips on he floor. Sergeant Massilamany saw one of the meninside a locked room throw some papers on to the roof. In the gutters atthe end of the roof were found P 51 and P 52, betting slips. In a cupboardwas found P 47 a sheet containing treble combinations of the horses dueto run on that day. The very arrangement of these, premises—thelopk-out men, the closed doors, the push bells speak eloquently in supportof the case for the prosecution. The learned Judge was of opinion thatthe presence of the Red Tail Troupe on the premises engaged in vocal
SOERTSZ J.—The King v. Andree.
503
practice, the books on the walls, the carrom board, the game of cards wereonly an attempt to make believe that here was a social club. No otherconclusion is possible in all the circumstances of this case.
The next question is in regard to the complicity of the several accusedin these transactions. So far as the first accused is concerned, theevidence of H. O. Fernando is that—
" the first accused runs the business. He is the proprietor of thebucket shop. He paid me a salary of Rs. 35 per month for working forhim on race days. at Canal Row and on other days at the LorenszPress ”
….“ First accused had a room on the landing and he sat there
and accepted bets ”….
“ The chits (i.e., the betting slips) are taken away from the premisesat intervals by one of the clerks on a motor cycle. I have also removedchits and money and taken them to the first accused’s bungalow, andhanded them to his wife or eldest daughter.”
There is singular corroboration of this evidence. The first accused isthe tenant of the premises 33, Canal Row (see P 62). He is found on thepremises on both days on which the raids were made.
The Police party found him—
on the first flight of the stairway. The door on the landing wasclosed …. The door was opened at his request by somebody
from inside …. He tapped on the door two or three times,and when it was not opened he shouted that it was the Boss and thenthe door was opened from inside ”. (Inspector Mohamed’s evidence.)
Kulatunga says : —
*• Inspector Mohamed gave me a chit with the names of four horsesand asked me to place and all-on bet and gave me Re. 1 . . . .When I got up the stairs I went to the first accused’s room. I saw thefirst accused there …. First accused was seated in a room whichappeared to be an office room. I spoke to him. He asked me why Ihad come. I told him I came to lay a bet. He said * sorry we
do not accept bets’. There was a table. On the table
were race books and all-on betting slips …. I came out. Imet a person named Jinadasa. I sent by him the bet with the rupee.. .. After about 10 or 20 minutes he came out and gave me the
duplicate of the bet I had given him. It was initialled ….
P 56 was the chit Jinadasa brought back and handed me.”
P. C. Perera says that he too went to lay a bet, that the first accusedspoke to him and asked him whether he had been there before. He saidhe had not, and the bet was refused. There is a mass of documentaryand real evidence against the first accused. In his house'are found anumber of books which are obviously books used for taking bets, a sumof Rs. 15,000 in currency notes and a couple of thousand rupees in silvercoins. In his garden there are charred remains of pieces of paper withthe names of horses on them, arranged in such a way as to suggest betstaken on those horses. P 45, a betting slip, is found in the pocket in theupholstery of his car.
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SOERTSZ J.—The King v. Andree.
In regard to the second accused, again there is the evidence of H. O.Fernando : —
“ I know the second and third accused. They were also workingunder the first accused at Lorensz Press and at Canal Row. Theyalways worked on race days at Canal Row
" I used to take trebles. Second accused also accepted trebles.Third accused sat there accepting trebles and all-ons.”
Kulatunga testifies to seeing the second accused on August 3, on theoccasion of the raid, at 33, Canal Row. Massilamany says that the secondaccused was one of those who faced him when he stood on a chair andlooked into the locked room, and he says that the second accused andothers standing, where they did, screened from his view the men whothrew some papers on to the roof. P. C. Podimahataya says that whenhe went to lay a bet, the second accused it was who spoke to him and toldhim he could not accept the bet as he was not known to him. InspectorToussaint says that when he went with the search warrant to search thefirst accused’s house, he found the second accused and the first accused’swife in the house. There are several slips on which H. O. Fernandoidentifies the second accused’s initials, and there is P 46c with thename “ Hiram ” on it. Hiram is the Christian name of the second accused.H. O. Fernando says that “ Hiram ” is in the second accused’shandwriting.
As to the third accused, the evidence of H. O. Fernando is similar. Hesays he accepted trebles and all-on bets on race days. Massilamany sayshe stood near the second accused inside the locked room, and that it wastheir standing where they did that prevented him from seeing the menwho threw the papers out of the room on to the roof. In his case too,there were documents found in 33, Canal Row, oh which H. O. Fernandoidentified his handwriting. Among these documents were P 46 (a) andP 46 (d) with the name “ Lionel ” on them. “ Lionel ” is the thirdaccused’s Christian name. Neither the second nor the third accusedelected to give evidence. They were content to rely on the evidence ofthe first accused. He said : —
“ Second and third accused were working under me. I call themHiram and Lionel respectively. In P 46 (d) there are the words‘ Lionel—Book of Trebles. I can’t explain it.’ ”
He went on to deny what H. O. Fernando and the other witnesses saidin regard to their complicity in the receiving of these bets. The trialJudge has definitely disbelieved him.
From this examination of the evidence, it will be seen that, puttingaside the evidence of H. O. Fernanda there is a substantial case againstthe several accused on count one of the indictment. With Fernando’sevidence taken into account, the case is strong in that it establishes thatthese accused agreed to negotiate these bets, and it is conclusive in thatit establishes that they acted together with a common purpose for and intaking them.;
I would, for these reasons, dismiss the appeals.
Appeals dismissed.