Mountain Democrat., 1857-12-19
Court OF Sessions.
JAMES JoHysS, Judge. aud GEORcE DUDES and J. L.
PaAgIKE Associates.


In our last number we alluded to the hasty exit Of
a number Of our sporting citizens because it was
known that the Grand Jury were Inquring about vi
olatiOns the gaming laws. The Court, In its charge
to the Grand Jury at the Of this term,
directed their special attention to the gaming laws,
and at great length informed them Of their duties
der it. The consequence has been an exciting legal
controversy. The indictments having been found
against number Of persons for their connection with
Rondo and Paro, and they having been arrested,
their counsel (Messrs. NEWELL, lIEwns and SANDER
SDS) the first step, dcmurred to the indictment
upon the following grounds:
lst. That the facts stated in the indictments we're
not sufficient to constitute a public offence.
Znd. THAT tire indictments did not substantially
conform TO the requirements of sections 231 aud 2S
Of the Criminal Practice Act.
In support Of the demurrer, the following points
made by the defence:
l. That the Act OF 1855 concerning gaming punish
ell none but banking games; the Act Of 1874, imposing
N different penalty banking games therefore
peals the Act OF 1855.
2. Conceding that the Act Of 1855 includes other
games Of chance than banking games the Act Of 81
having been passed upon the subject matter in
cluded IN the Act Of 1Sj by implication reIcals all
Of the former Act Because, Pirst-The Legislature
having declared sfirmatvcly that certain class Of
games ARE prohibited necessarily implies negative
= to all other games. SecOnd-Wheu general terms
used in al Act and the Legislature by Subsequent
enactment upon the same subject and for the same
purpose, describe specifically the Olenses, the latter
Act rcpcals the former, at least il is legislative
construction Of the fUrner Act and must CONTROL
ThTIn the construction Of statutes for the purpose
Of asccrtanng the intention Of the Legislature, it Is
competent To look to the history Of the times, and as
certain the known embarrassment existing under the
former law, which was intended IT, be reInedCd by
the latter statute; and that in this instance it is gen
orally known fact that il exceedingly difficult, II
not impossible, to procure conviction under the Act
ufI flFt he Vert
indefinite description given hy that Act 10 the OfrseS
therein mentioned. SecOnd-1he great difficulty II
procuring Testimony under that Act. growing out OF
the privileges ot exemption claimed by the witnesses,
and that the subsequent Act shows that it was passed
to cure these difficulties
g. 1t Is competent for the Legislature to prescribe
What shall he received evidence Of the laws Of the
State. In this instance, they have declared that
WOOd's Digest, when examined and received by the
Committee by them appointed should he evidence OF
the Statutes Of this State Of general nature in force
at the Close Of the Nt session nf thar body: that such
Digest WAS examined and received by the Committee,
and tla; dues not include the Statute under which
tlic>e prosecutions are lAd.
Upon the second cause Of demurrer. the point made
MAS that the indictment did not charge that the game
was owned by any one.
Tir Court ruird tat the Act of 1SI5 declared not
only banking games tO be an offence but also other
games Of chance which were such could be owned
by any one, and that the Act Of lN5I repealed
much Of the Act Of l>j, rs declared banking games
All offence but that 80 much Of said Act MS declared
other games Of chance mn offence not repealed.
Upon the second point Of demurrer, the Court held
that there being averncnt In the indictments Of
ownership Of the games by any one, that for this
cause they were demurrabc.
For this reason the Court sustained the denurrers
and submitted the indictments to the Grand Jury
who soon returned them all with the necessary ad
dtnda and corrections.
In the case of blank for dealing Faro, on the l6h
instant he arraigncd for the purpose of pleading
to the indictment; when his c"unsr (NlcSsrS. SANDER
S.,X. NEWELL and lIEwES) moved to set aside the i'll
Hi,tn uf fur IA.
Now comes the Den. and moves to set aside the
indictment found against him in the above cnti
tied action, for the following reasons:
lst. That the same has not been presented and
endorsed prescribed in the act entitled "An Act
to regulate proceedings in Criminals cases"
2nd.- -bccausc the names of the -WitueSsGS- PXaIn-
incd before the Grand Jury, or the depOsitiOns
which may have been read before them, are not
Inserted ut the foot Of the indictment endorsed
thereon.
3rd. Den. moves tn set aside the indictment and
for ground OF the motion, challenges the lannrl Of
Grand Jurors by whom said indictment was fpuIl,
and presented and for causes of challenge alleges
That the samc was not drawn and impannril,d d
according To law i'll this:
lst. That the requisite number Of ballots was
not drawn from the Jury box of the count! as pre-
scribcd by law.
2nd. That the notice of the drawing Of the
GTand Jury was not given as prescribed 10y law.
81. That the draw ing was not held i'll the pres
cnrc of the officers or any Of them as designated 10y
law.
and impanncllcd at the term nf the Court at which
said indictment purpnrts tO have been found
9TH. That said indictment was not found by
Grand Jury summoned by order Of this Court, or
by the presiding Judge thereof as pro, ,idcd by
statute.
9th. The said Grand Jury we're summoned at
aud for special term Of this Court, held un the
day of November, \. ID. lH51, and said indictments
purport to have been found at subsequent term
Of said Court, viz: at the regular December term,
A. ID. 1851, thereof.
1th. That at said special term. Nov. 4. d. 1851,
all the proceedings Of said Court were cOrdm non
jUdice and void, because raid Court was not con-
stitutcd and composed by and Of the persons dcsg-
mated by law rs the Judges and officers thereof.
Wherefore hc asks to he hence discharged and
that said indictment may he set aside.
The Court overruled the motions to set aside the
indictment, and required the Defendant to plead,
which he did by demurring to the Indictment.
Demurrers also filed IN the TOn,o cases, some
Of which were sustained and others taken under ad-
visement by the Court, and will be decided to-day.
In all the cases In which the Demurrers were sus.
tanned, the Court directed them to be referred to the
next Grand Jury. The sports. it seems are not out
Of the woods yet but thus far they have as usual the
best Of the game.