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Portion of charge to jury on law as to prize-fighting.

A prize fight is defined by the Criminal Code (see, 2 (31) ), as “an encounter or fight with fists or hands between two persons who have met for such purpose by previous ar. rangement made by or for them.”

It is somewhat singular that though this definition has been a part of our law since 1881, I have not been able to find any reported decision in which it has been considered by a Superior Court:-the only reported cases of which I have found any record have occurred within the last 13 years and are decisions, one of a District Magistrate of Quebec (R. V. Maber (1901), C. C. C. 446), in which he found the act complained of a “prize fight,” and the others of County Court Judges of St. John, N.B. (R. v. Littlejohn (1904), 8 C. C. C. 212); Hamilton, Ont. (R. v. Wildfong, 17 C. C. C. 258), and Toronto, Ont. (R. v. Fitzgerald, 19 C. C. C. 148), in all of which convictions made by the police magistrates were set aside. While I express no opinion as to the correctness of the decisions in any of these cases on the facts that existed, I am unable, after the most careful consideration, to accept all of the general propositions in these cases.

I agree with them that the presence or absence of a prize which is suggested by the name has no significance whatever. There is nothing suggesting a prize in the definition, and section 108 makes it abundantly clear that the absence of a prize cannot affect the character or legal consequences of the fight unless it is accompanied by the fact that the fight is the result of a quarrel or dispute, in which case it is none the less a prize fight and illegal, but the punishment may be made lighter or even dispensed with. Such a fight as suggested by section 108, viz., one the result of a quarrel and which is not for a prize or money is not such a fight as we think of at all as included in the ordinary meaning of the term “prize fight,” but as it is included under our Code it is apparent that the definition of “prize fight” is intended to comprise more than is ordinarily understood by the term instead of less as apparently considered in the last reported case, where the learned Judge in effect, holds that our definition means that a prize fight is a prize fight as theretofore known, subject to the limitation and qualification of the rest of the definition. The definition of prize fighting at common law as given by the cases referred to appears to me to be more restricted than the authorities warrant. It appears to be taken from a case decided in 1878 in England (R. v. Orton, 14 Cox 226), in which a Court of Judges held that on the facts of that case the charge to the jury was correct in which the Judge said, that “if it were a mere exhibition of skill in sparring it was lawful, but if the parties met intending to fight till one gave in from exhaustion or injury received, it was a breach of the law and a prize fight whether the combatants fought in gloves or not.”

Now, it seems apparent that was not intended as a comprehensive definition of a prize fight, but simply an indication of what on the facts of that case it was necessary for the jury to consider. It is quite apparent also, from the fact that the two alternatives suggested do not cover the whole field.

In a later case in 1881 (R. v. Coney, 51 L. J. M. C. 66), the facts as stated in the report of the judgment which are therefore apparently all that were considered material were that two men at the close of the Ascot races engaged in a fight near the road, that a ring was formed with posts and ropes, that they took off their coats and waistcoats and went into the ring and fought for a considerable time in the presence of a considerable number of people.

The question for consideration there was whether three persons who were passing and, attracted by the crowd, had gone to see what was going on and were looking on were liable as participants. The eleven Judges, by a majority of eight to three, held that they were not necessarily liable, it being for the jury to say whether they were in fact aiding or abetting the fight, but it was necessary to determine first that the fight itself was illegal. With only one exception, the Judges were agreed that this was a prize fight, though there is no suggestion that the fight was prearranged or that the participants had fought or intended to fight till one was exhausted. One of the Judges, the author of a standard treatise on the Criminal Law (Stephen, J., p. 73), said: “The injuries given and received in prize fights are injurious to the public, both because it is against the public interest that the lives and health of the combatants should be endangered by blows, and because prize fights are disorderly exhibitions and mischievous on many obvious grounds.” Another Judge (Cave, J., p. 68), said: “The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport and not likely or intended to cause bodily harm is not an assault.” Russell in his comprehensive work on Crimes, says (7th ed., p. 785): “Prize fighting,” etc. He notes that there are to be excepted sparring matches with proper gloves and fairly conducted.

The evidence in this case gives some indication of what is considered “sparring,” for the witnesses speak of the opening of this contest as more like “sparring ” or feinting than boxing, and the Century Dictionary defines the verb, “spar ’’ as meaning “to make the motions of attack and defence with the arms and closed fists; use the hands as if in boxing either with or without boxing gloves.” It is stated in the English Encyclopædia of Law (vol. 2, p. 385), “That the line between unlawful and lawful contests of this kind is fine.” You will probably have gathered from what I have said that the English law on this point is to be ascertained from an examination of the cases, there being no statutory definitions. That was the state of our law when the statute was passed in 1881 defining prize fighting and fixing penalties in respect of it. The purpose of the definition was of course to make definite what was indefinite, which is another way of saying “to define.” By the same Act provisions were made for preventing a contemplated prize fight. It seems apparent therefore, that it must have been intended to render it p0s. sible to determine whether a proposed contest was to be a prize fight without the necessity of referring to the actual conduct of it. The difficulty in construing the definition appears to be in the words “encounter or fight.” I am of opinion that they do not mean “either an encounter or a fight,” but rather “an encounter of the nature of a fight, or that could be designated as a fight.” I take it that the word fight is here used with its ordinary meaning, which is hard to define in simpler terms. You probably understand it quite as well as I do or as I could explain it. It suggests to me a contest or struggle in which one strives to overcome or conquer the other. It is not an uncommon use of the word to speak of a fight between two boys to see which will be ahead of the other in his class. But in the present case, the only fight to be considered is one with the fists or hands. It will include what was theretofore known as a prize fight between pugilists as also a fight arranged between persons who are not pugilists, but would not include boxing when it is carried on as an exemplification of what has been called the manly art of selfdefence, though it might, if the contest were typical of what might be designated as the brutal science of attack. It appears that if the purpose is an exhibition of sparring or boxing on its scientific side it is not within the definition and is unobjectionable, whereas if it is a contest in which one strives to conquer the other by blows and has the other accompaniments it is a prize fight within the definition, and I am of opinion that under our definition there is nothing to warrant the conclusion that the contest must be of such duration as to shew that the intention is to exhaust or wear out one or both of the combatants. Of course every prize fight would be an exhibition of the science of boxing if between competent persons, but the exhibition feature would, as far as the contestants were concerned, be only an incident— the result of the contest being the important thing. It is necessary, then, to apply the distinction to the facts of this case. We find that the accused and the deceased met by virtue of an arrangement previously made for them for a contest with their fists or hands, for the fact that gloves were worn as the cases point out, does not prevent it from being a contest with the fists or hands. The question then is, was it an “encounter or fight,” as I have explained that term 2 It is suggested that it was not because a part of the arrangement was that it should be for ten rounds only with no decision at the termination. The affair was advertised as “Boxing, Burns' Arena, Calgary, Saturday, May 24; Second round of the Elimination Series for the World’s Heavyweight Championship, Luther McCarty, the World’s Heavyweight Champion, vs. Arthur Pelkey, of Calgary, Claimant of the World’s Championship; 10 rounds,” indicating that the world’s championship was at stake. One of the contestants was described as the world's heavyweight champion, and the fair inference to be drawn from the notice is that the winner would carry the title. It was so well advertised that there were 3,000 people present and $8,400 was paid in admissions. The ring was prepared in the same manner and in other respects the contest was conducted, as far as it went, in the same way as many other contests in which the deceased had taken part with some possible slight modifications.

Except for the number of rounds, the matter of decisions, and the weight of the gloves, the evidence seems to indicate that the contest was to be conducted according to the same rules as the fight between Johnson and Jeffries, which is stated to have been a prize fight and held in the only one of the United States which then permitted prize fights, and in which, one of the questions and answers suggests, there was much brutality. The manager of the deceased seemed to consider that the only difference between such a contest as this and a prize fight was that there was no prize or money dependent upon the outcome of this. This of course is unimportant under our law. Mr. Smith, the referee, a recognized sporting authority, who states that he has acted as referee at more than 100 contests, says that he has been trying for 25 years to find out what the difference between a prize fight and a boxing match is,

They both appear to have in mind such a contest as took place here and there seems little room for doubt that they know prize fights. Their evidence is therefore important in this connection to enable you to determine whether there is any essential difference between this contest and a prize fight, for if there is not it is a prize fight.

You are entitled to consider the weight of the gloves to determine what the intention of the parties was, but if you are satisfied on the evidence that the intention was to fight as I have explained, the size or weight of the gloves bears no significance. The fact that it was for 10 rounds only without a decision is also to be considered by you in consid: ering whether it was a mere scientific exhibition, but you must take this in conjunction with the advertisements and other facts. The advertisement suggests that one of them will carry away the title of champion. Now, how was that to be accomplished on the part of the one who did not have it except by defeating the one who held it? The evidence shews that when the deceased fell the referee counted 10 and

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