Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1883-05-18
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The Cornerstone Of an Argument in
Case to Test the Gambling
Act.
Failure of the Head Of the Act to
Cover the Points in Its
Body.

An agreed case, to test the constitutionziity
Of the set making it felony to keep a gam
blinghouse, now occupies the attention of the
Criminal Court. The frat step in the pro-
ceedings was the finding OF two indictments
against one Frank Treadwell-one under the
old Law making it = misdemeanor 10 keep
such house, and another indictment under
the late set, making the same offense
FELONY.
By this means the entire question will be
freely ventilated, and when q decision is
finally reached it FAUST cover the whole
ground, as it is intended il shall do. The
argument was opened at noon yesterday by
Col. Geo. CAN'T for the defense. He spoke
from noon until l o'clock, and after a recess
Of an hour continued his argument until
O'Clock. He will be followed tomorrow by
Judge 7. W. Brown, the Hon. Casey Young,
and Attorney General G. P. NJ. Turner.
I brief prepared by Col. CAN'T
COVERS ALL THE POINTS
at issue. A condensed statement Of the ar
gumsnt Sc. forth in the brief Is given below.
The old acts of 1927 and 1929 making faro
and keepipg houses for dealing faro, rou-
lette, twenty one and chucksluck felonies,
are not brought forward in the Code. The
constitution provides that no bill shall be-
come law which contains more than one
subject, that subject to be expressed in the
title. The act Of 1888 10 in CONFLICT with
this constitutional provision. This can be
seen from the title, which runs as follows:
San act to punish al parties, as felons, who
may engage in the kesping OF halls or houses
for conducting games of keno, faro, three
card monte, mustang, etc." To make s case
of guilt under the caption it must appear
that a house has been kept for conducting the
specified games. The title would not cover a
stranger or employe dealing faro in the house,
nor would it affect the keeping of gam bling
devices in the house. All these would be SO
many separate aud distinct felonies neither
mentioned nor limited &C in the title. All
these offenses are made misdemeanors under
the Code and are punishable by fine OF not
less than $50 nor more than 5000. Mere
gaming is q misdemeanor without punish
ment affixed, IS per section 1870 OF the Code
The caption OF the act OF 1888 lays hold
of the class of offenders covered by section
1872 keepers of gsminghousesJ and raises
their offense to the grade OF felony. 1t
leaves tine
OTHER oFFENsss
Just where the Code places them. The next
point ia to find whether the body of the act
of 1888 ia confined to the subject and class Of
offenders embraced by its title, or whether it
goes beyond the title and create. felonies not
named therein, and also felonies sgainet
classes of offenders not specified therein,
thereby violating the constitutional provis.
ion cited.
First-The body OF the act creates out oil
the misdemeaner of keeping gsminghouses, 3
felony. ---
Second-It raises the offense Of keeping
| exhibiting or operating gaming-tsbles from
misdemeanor to felony. The caption, or
title, gives no intim alton of such purpose. Ii
| makes neither mention or reference to
gsnIDg-tables. 1t creates three distinct
| felouies against the owners OF gsming-tables
making it felony to keep, to exhibit or to
| operate table. All this is as different from
| the felonies
NAMED IN THE TITLE
as it is possible to conceive of. To keep OF
exhibit a table, or 10 deal faro, is not TO keer
house. But this extraordinary statute
does not stop here in its plain infraction OF
| the constitution. The sleeper of the houss
| or hall" is the limit of its title. The keeper
or exhibitor Of the table or the dealer may
be very different persons, yet the body of the
| act expands to take them in, thus embody.
| ing class not limited at in the tile. The
| keeper, owner and dealer are all well-de.
| fined parties. So, too, the ofense of keeping
I exhibiting or operating table would b,
| complete il done as a guest in a reading
! room, or parlor, or billiard hall or drinking
! saloon, on the public highway, under thu
| trees on the picnic grounds, at race TRACK
! or at any place of amusement.
THUS THE ACT SPREADS
| from keepers to the owners, exhibitors, dealer
| and employees. The title creates one distinct
l felony against a specified class, while tn,
\ body of the act enbrsces two other classe
and creates six well-defned felonies, no
named directly or indirectly in the caption
These superadded felonies may all be com
mItted without reference 10 the halls o.
houses or the keepers named in the caption
Again, the title of the act embraces thos,
who keep halls or houses for conductin:
"gsmes of keno, faro, three.card monte
mustang, ETC." embracing under the vsgu,
| generality "elc.," in the body of the act
"red snd- black, high-ball, roulette, twenty.
one and hazard" This is the worst form o
| constitutional disregard. "Etc" means nc
more than would the words for other par
| poses" which were SO common in The title,
| oil statutes before the adoption Of the con
stitution of 1870.
Simply to own, to exhibit, OF 10 opsrst,
the tables would be no feleny unless they
| are owned, exhibited or operated for gainl
| and losses, under the construction of the act.
To test the statute, omit from the act al
that is said ab0u gaming-tsbles, owners anc
employees, and perfect statute remains il
harmony with the title.
Omit all that is said in the act about per
| sons who keep the halls for playing the
games, and perfect act remains, but 60 fal
from being a subject expressed in the title, il
is subject wholly without the title.
Suppose, TO test it again, that it be
PLACED IN WRITING.
1t would read thus:
AN ACT to punish as felons all parties who ma,
engage in the keeping Of nails or houses for con
Quoting of games of keno, faro, three-eard
monte, etc.
SECTION 1. Be 1t enacted BY the General Assemble,
OF the State Of Tennessee, That any person who shall
keep or exhibit any gaming-table for the purpose
OF playing any game OF faro, keno, three-carc
monte, mustang red-and- black, high bali, roulette
or tWenty-one and hazard, or operate the same g,
9@ nle or ;eimpIoye upon Conviction shall be
500 nor more than $500 and Imprisonment in the
pententiary not less than ore nor more than three
years.
This is sample demonstration of the
double subjects in the act and the single
subject In the title.
Section IL, article of the constitution, pro.
vides that "all acts which repeal, revive or
amend former laws shall recite in their cap.
tions, or otherwise, the title or substance of
the law repealed, revived or amended"
This act revives the felony acts against faro.
passed in 1929 and 1888. 1t does not rtcite.
in its caption or otherwise, the title or sub.
stance of the laws thus revived. This is an
open
BREACH OF TIE CONSTITUTION,
than which nothing could be more fragrant
Then follows lopg lis. of decided cases,
examined and applied to this act. The
principal references are State Us. McCann, 4
Lea, L; STATE Us. Murphy, 9 Lea, 1873; Gossett
Us. the State, Sd Legal Reporter, 2Sl; State
Is. Bethel, Nashville, March 5, 1881; Lesa-
tors case. 9 Baxter. 5S4: FJnkIen's c.se 2