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Colonial Cases

Encarnacao, 1872

[gambling]

Encarnacao

Portuguese Consular Court, Shanghai
23 January 1872, 6 February 1872
Source: The North-China Herald, 25 January 1872

 

PORTUGUESE CONSULAR COURT.

Jan. 23, 1872.

Before H. P. HANSSEN, Esq., Consul-General.

R. v. A. ENCARNACAO.

   Defendant was charged by the Superintendent of police with holding lotteries.  He did not deny the charge, but pleaded that his lotteries, since 1st Jan., were only for jewelry and shirtings as prizes, not for actual money; and that the Secretary of the Municipal Council had told him that a lottery of this kind would not be interfered with.  Besides, they were allowed in Macao.  He would ask to be allowed to get permission from the authorities at Macao to hold lotteries for goods, and not for money.

   The Court said, whether the prize were for goods or money made no difference; it was still in the eyes of the law a lottery. It would not punish the offence in the present case, as the system of lotteries had been allowed to go on for nearly a year without interference; but a repetition of the offence would expose defendant to the full penalty of the law, - imprisonment for a period of from thirty days to six months with confiscation of goods.

   On defendant asking if he might be allowed to go on with a lottery advertised for the 28th, he was told that it must be stopped, and that all lotteries open after this date exposed the manager and conductors to punishment.

 

Source: The North-China Herald, 8 February 1872

PORTUGUESE CONSULAR COURT.

Shanghai, Feb. 6th.

Before H. P. HANSSEN, Esq., Consul-General.

R. v.  A. ENCARNACAO.

Selling lottery tickets after the 22nd. Jan.

   Defendant had been prosecuted at this Court on the 22nd ultimo for holding lotteries, and ordered to cease.  On the 3rd instant he was convicted of selling lottery tickets, on the evidence of some native witnesses and of  tickets produced which had been bought on the 28th and 29th, and sentenced to 15 days'; imprisonment.  His defence then was that the tickets had been sold against his order and without his knowledge, and he asked for time to produce evidence, which was allowed, till the 6th.

   Superintendent Penfold prosecuted, and Mr. Eames watched the case on behalf of the defendant.

   J. A. XAVIER, sworn, stated - The date put in a ticket was always the date of the drawing.  If a Chinaman found trhe drawing was not opened at the time fixed they would at once ask for their money, if a postponement was not announced.  I was once forced to retire a drawing, and I have returned the money.  The houses put in as prizes in the drawing of trhe 28th Jan. are China houses belonging to me.  After 28th Jan. you gave me back the house papers, saying the lottery could not be proceeded with.  I recommended you a shroff, who as soon as the lottery stopped you discharged.  I told the shroff, under your instructions, to sell n o more tickets, and to send in his accounts.  You told me the shroff did not call afterwards and you could not find him.

   To Mr. PENFOLD. - I do not know if any tickets were sold after the 24th nor if money was returned.

   To the Court - Defendant told me more than a week ago that his shroff had disappeared.  This must have been several days before the 28th.

   JULIANO MACHADO, sworn, stated - I was engaged by you to superintend the sale of lottery tickets in Foochow Road.  On the 23rd or 24th you ordered me to cease selling them from that date.  I transmitted that order to the shroff the very same day I received it.  In your house I also heard you give orders to the shroff to stop the sale of tickets.  I saw several tickets in your hand, and asked if you were buying them back; you said yes; but I do not recollect seeing any man returning them to you - I was not paying any particular attention.  I recollect receiving an order about the same time to find the shroff and bring back trhe tickets, but the shroff was away, unwell.  A notice (handed in) was stuck oln the front door of your house.  Since that time I have only observed one Chinaman in your house.

   To Mr. PENFOLD - I saw a Chinaman in the house of Friday or Saturday last, who used to sell tickets, whether the shroff I don't know.  I was in charge of the Foochow Road establishment.  Money for the s ale of tickets would be paid to the shroff, not to me.  On the 23rd or 24th I told the shroff, in Chinese, to cease selling tickets.  I saw some tickets in defendant's hand, but not any money returned.  I sent a coolie to call the shroff, who said he was very ill and could not come.  That was trhe Foochow Road shroff, who was the one defendant told me to look after.  He gave me no orders concerning the Kiangse Road shroff, but I was present when defendant gave the order to his own shroff, in Kiangse Road, to stop the sale of tickets.

   To the Court - I did not sell tickets for the lottery of the 28th.  I don't know of the shroff sold any.  He had some in his hands.  I did not refund any money for tickets sold.  No application for money was made to me on account of tickets sold for a drawing on the 28th, which did not come off.  I kept no books to enter tickets received or sold.

   To Defendant - I only saw the tickets in your hand when I went to your house, and I asked you

whether you were receiving them back, and you replied "yes."  He tickets did not

           looked fresh, they were dirty and folded up.  I asked you what was the meaning of the words sine die on the notice stuck on your door.  You laughed and did not answer.  You told me there was a difficulty about the drawing, and that you would not go on with it unless you had special permission from Macao.

   E. A. PEREIRA, sworn, stated - I was employed as a sort of lottery-ticket broker.  I received and sold 82 tickets for your lottery of house property for the 28th.  About the 23rd I had instructions from you to stop the sale, bring back the tickets, and get the money to refund on tickets already sold.  I came to your house and received the money to pay back.  I refunded the buyers of tickets, closed the accounts and returned the tickets to you.  At the time I got instructions I heard you also tell the shroff to stop the sale.  I saw a notice stuck on your house door.

   To the Court - I got the whole of the tickets back gradually, receiving them all by the 25th, on which day I settled accounts with defendant.

   Defendant said these were all his witnesses.  He had tried to find some Chinese to come here, but the report of his imprisonment had spread among them and they were afraid to appear.

   Mr. PENFOLD then called SIU-TZE-KONG, who, cautioned, stated - I was formerly Mr. Encarnacao's shroff.  I left him on the 1st Feb.  I sold last week 15 tickets.  I sold three tickets on the 28th.  I accounted daily to defendant for sales.  I paid $3 on account of these tickets.  On the evening of the 28th my master told me to sell no more and after that gave me none.  He told me I could sell to the 28th, but not after that.  He told me if any ticket holder applied of r refund to inform him.

   To Defendant - You told me one day that after the 28th no more drawings would take place.  I told you that of the money received for 3 tickets I paid $1 to the cook.  Before that I always settled accounts in the evening or the following morning.  I told you of the $3.  You owe me still half a month's wages.  I posted a notice in English that the lottery was postponed.  You did not tell me to post a similar notice in Chinese.  I myself was never asked to refund money; I do not know if the boy or coolie was, in my absence.

   Witness to the Court - I have no books.  I settle for tickets every day.

   Defendant said he had not given the shroff a ticket for sale since the 23rd.  The man owed him at the end of Dec. Over $100 and he therefore declined to trust him further.  This man moreover was not the regular shroff.

   His Honour said the witnesses for the prosecution had, on Saturday, distinctly stated that they had bought tickets after the time defendant had been warned, and had also seen them sold to Chinese.

   Mr. EAMES took it for granted that tickets were sold, but the question was - who was responsible?  All the foreign witnesses here had stated that the defendant did what he could to stop the lottery.  The Chinese witness had evidently given his statement under strong bias; and there was nothing brought forward, except this man's testimony, to show that defendant knew these tickers were being sold.  However defendant might be responsible for the acts of his servants civilly, he could not be held so criminally.  To convict a man of crime the law required proof of intent to commit it, and the Court should not presume that defendant was committing an offence against the law.

   After a few remarks about the notice stuck up by defendant, intimating the postponement of the lottery sine die, two of the European witnesses were recalled.  Machado said he did not put out a notice in Foochow Road; he only gave orders to the shroff verbally.  Pereira said after defendant instructed him that the lottery would not be held, he paid the money back to those who applied, and all the buyers did so within two days.  Witness added that, while he was at Mr. Encarnacao's house on the 28th, some Chinamen came in and asked whether the lotteries were to be held again.  Mr. Encarnacao was upstairs, and the native servants in the house replied that they would not be held until permission had been received from the authorities.  He personally saw defendant receive back tickets and play the money.

   His Honour said gthe evidence to-day placed the transaction in a different light from what it was in before.  Defendant had done something to prevent tickets being sold, but at the same time he had not done sufficient.  No notice had been out up in Chinese.

   Mr. EAMES, before his Honour would conclude, suggested again the point he had mentioned - the question of civil or criminal liability.

   His Honour did not tbhink defendant had done enough to prevent his servants selling tickets, and would therefore inflict a fine of $25, instead of imprisonment.

   Defendant asked leave to appeal to Macao, in order to have the case investigated thoroughly, and wished also that the Chinaman who had appeared that day should be prosecuted at the Mixed Court.

   His Honour disallowed the appeal, and

   Mr. PENFOLD said he would bring the shroff before the Mixed Court on Saturday.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School