Major Wainwright stated that he had obtained a. Mixed Court warrant, thinking that the house was! occupied by Chinese, and subsequent ly had it visaed by the American Court, expecting to find an American there. He afterwards obtained a! warrant from the Portuguese au-! thorities as he was informed. that the tenant was of Portuguese nation-! ality." Cross-examined on the of the Shanghai Municipal Police to effect searches in territory beyer the limits of the International Mixe! Court, Major Wainwright said that it was an old practice of the Police to do so, especially as the Chinese Police had no access to the houses raided, Nos. 104 and 105 off North Szechten Road, Tu further cross-examination Major Wainwright stated that thei tion was. not obtained by' that he had not himself' made in-nines from the Revenue Depart-rent to find out who were the ter ants of the two houses before apply ing for the warrants. The warrants authorized a search in No. 104, the! firat house entered by the Police,' but nothing was found there. A search was also made in the adjoining house, where certain gambling parapher-alia was found and removed.
After conclusion of Major Wainwrixht's evidence, Dr. Fischer applied to the Court for dismissal of the ease on the ground that. the evidence was illegally obtained ani the search effected by the Sh hai, Municipal Police, who. ha Fight whatsoever to function.
The Land Regulations Dr. Fischer drew the Court's at tention first of all to the tax receipts issued by the S.-M. C. Revenue Department for the tw. houses Nos. 104 and 105, North' Szechuen Road, which clearly state! that two different tenants had paid, taxes at the special rate of 12 per cent. for the same and that the sai houses were situated "outside Settlement limits." He furthermore point. "led out that the Land Regulations clearly stated "the boundaries of the International Settlement" and thet it was repeatedly stated in the re-and by-laws tha that
could be exercised within the Timith, Council ete, only This fact had also been clearly em= phasized in the letter of Mr. John Goodenow, American Consul-General and Senior Consul, sent. on October 17, 1904 to Mr. F, Anderson, Chaire man of the Municipal Council. Dr. Fischer felt sure that the Portuguese Vquthorities would not lend their liliand to this practice as the bound= ries of the Settlement were clearly stated in the Land Regulations, and even the fact that the Police' hud occasionally functioned outside the Settlement limits could not deprive the Chinese Government. of its rights, for treaties could not be interpreted to the prejudice of the sovereign power.
He quoted the provisions of the Portuguese Law, acconling. to. which criminal case fled on the basis of evidence obtained. by an incompetfent authority, had to be dismissed by the Court.
Dr. Fischer at the same tine pointed out that he was instructed by his clients to institute proceed: ings in the Court of Consuls for illegal manner in. which the wal rants were obtained and executed by the Police. He also applied for return of the property illegally seized in the premises of one of the defendants, Mr, Maitland did not address the Court in reply to Dr. Fischer's arguments.
The Court's Decision The President of the Court, sul-General Britto, in summing up at length all the circumstances of the case, pointed out that there were two questions which were raised by the defence and which he had to decide. First, his warrant was granted for the searching of No. 104 North Szechuen Road and charge was brought against the fendants under this andre as the gambling parapherns seized by the Police in No. 105 North. Szechuen Road, for not given any warrant, certainly would have given it hi the Police applied for it and he, therefore, did not consider this point of great importance. The position was, however, different with regard to the question raised by the deas to the right of the Muni-Police to function in Chinese territory outside the limits of the International Settlement, which point was, in his opinion, clearly Aecided as far back as 1904 by the letter of the Senior Consul Mr. Goodenow to the Municipal Council.
Portuguese law did not allow him any choice in this matter as it was binding on the Court and clearly stated that evidence obtained by an authority who had no right function in a criminal ease would render the whole criminal proceedings mull and void and the Court was incompetent to try the action. He felt in sympathy with the Police their effort to suppress gambling, and they always would have his hearty ce-operation for this purpose, but it had to be done in a legal manner, As a priest he possibly would not give absolution to the defendants, but, as a judge, he was bound by the law and had to dismiss the charge and the property gally obtained would have to be returned to the defendants, Mr. Maitland subsequently raised the question of the return of the j Wheel to the defendant, to wi ich the Court replied that, leaving aside the question of jurisdiction, the Police had not proved that public gambling. was going on, which would have to be proved to obtain a conviction, There was not much difference opinion between a little game a private house amongst. friend: and the playing of poker in club which was also a hazardous game.
Text read from the printed page and cleaned; old type leaves the occasional error.