Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-01-12
.B0OKM CASE
Arguments Before Judge Cole on
Fred Miller.
G DING OVER Old GROUND
The Two Acts Against Gambling
and Their Meaning.
MR.. D A Wis Ar G. U E S

| Judge Cole in Criminal Court No. 2, this
| morning took up the cese of Fred I. Miller
recently indicted for setting up gaming
table early last month at the Benning race
| track, in conducting booknlaking on a GER
| tain scrub race run there. Miller was ar
| raigned last Saturday, when, as stated in
| The Star, he demurred to the indictment,
| contending that it was fatally defective.
because the Indictment does not charge the
| defendant with any offense against any
| law in force in the District, and because the
supposed offense of bookmaking, as men,
toned and charged in the Indictment, is
not unlawful here.
Mr.. Davis Contention.
In opening the argument Mr.. Henry E.
Davis, on behalf of Miller explained that
he would contend that the act of 1891, pro-
hibiting bookmaking within the cities Of
Washington and Georgetown land within
one mile of the limits Of those cities, was
a legislative construction of the act Of
1883, prohibiting the setting up and the
maintaining of gaming tables and other
gambling devices in the District. H would
contend also, said Mr.. Davis, that the act
of 1871 was q repeal of the act of 1885.
Arguing the first proposition, Mr. Davis
asserted that in determining whether or
not the act of 1888 was designed to pro-
hil;1t bookmaking, the court had full and
ample authority to rely upon the constrllc-
ton which that act had been given by the
general community.
In support of that contention Mr. Davis
read numerous authorities, which, he claim
ed. left no doubt whatever of the power of
the court to consider and adopt the con-
struction so given the act. If that con-
struCtion were adopted, said Mr. Davis, the
court could not do otherwise than decide
that the act Of 1888 neither attempted nor
contemplated the prohibition of bookmak-
ing.
Intent of Congress-.
That the second act was a legislative
construction of the first one was plainly
indicated. stated Mr.. Davis, from a reading
of the titles of both acts. The title of the
act of 1888 was to the effect that it was an
act to prohibit gambling within the Dis
trict, while the title of the act of 1891
stated that it was an act to prohibit book
making within the cities of Washington
and Georgetown and within one mile there
of. Constituting the acts of Congress, the
court, argued Mr.. Davis. was fully author
lied to ascertain the intent of Congress
from reading of the title of the act. And
several authorities were read by Mr.. Davis,
which, he claimed sustained his position.
Considering the two acts together, Mr..
Davis said that the conclusion vas forced
upon the court that Congress had repealed
the earlier act. While. he said, repeal by
implication was not favored by the courts,
sustain such a repeal. But argued Mr..
Davis, there was still stronger reason for
holding that the act of 1888 had been re-
pealed, for, said MIR. Davis. unless that
were true there existed today two penal
ties in the District for the commission of
the same offense--that of bookmaking.
If both acts remained in force, said Mr.
Davis, a person who conducted bookmak-
ing within the cities of Washington and
Georgetown, and within one mile thereof
was punishable by Imprisonment in the
Jail for not more than ninety days, while
person doing the very same thing one
inch beyond those limits was punishable
by Imprisonment not exceeding five years.
The result would be to attribute to Con-
gress purpose most absurd, and which, If
upheld, will lead to injustice and Unequal
ity. Such construction, urged Mr.. Davis,
would be as unreasonable it is unjust.
Mr.. Davis then proceeded to read authori-
ties. which, he said, prohibited courts from
upholding laws which prescribed two sep
arate penalties for the same Offense in the
same jurisdiction.
Right to Determine.
The court, said Mr.. Davis, had the right
to determine what Congress intended by
the act Of 1891, from a consideration of
the debates in Congress, what was the
contemporaneous construction of the law
and what had been done in the courts in
the matter of the act of 1883. The court
could not, said Mr.. Davis, shut it's eyes to
the fact that prior to the passage sof the
act of 1891 bookmaking was being con-
Quoted in the whole District openly, and
by law. The act of 1891, he
argued, was passed to prevent bookmak-
irg in the cities of Washington and George
town and within one mile thereof.
That, said Mr.. Davis, had never been de-
MED. Hence. Congress clearly and I'M
doubtedly wholly repealed the act of 1888,
if it repealed the act at all, but at the
same time made it unlawful to conduct
gambling. in the form of bookmaking with
in the boundaries mentioned in the act of
1891. And in doing that, argued Mr.. Davis,
it permitted Eookmaking in all it's forms
within certain parts of the District, wheth-
er in conducting it a gaming table or other |
gambling device was thereby set up or not |
In concluding his argument, Mr.. Davis |
explained that the case was a bona fide |
test of the law, and had been made because |
Of the large interests involved in the de- |
the fact that by the enforced stoppage Of |
racing, many people had been deprived Of |
4 living.
1t was to the interest Of those people, and |
to the interest of the people of the whole |
District, that the question should be def
nitely determined ana settled at the earli-
est practicable time, said Mr.. Davis, and |
he was confident that the court, notwith-
conclude that the acts of 1883 and 1891
could not ana do not stand together.
The Other Side.
At the conclusion of Mr.. Davis argu-
nent the court at 1880 took recess until
go, when District Attorney Birney ad-
dressed the court in support Of the indct-
neut. Mr.. Birrey said that there could be
form of bookmaking, he regretted to
ay which did not require the setting up |
# a gaming table or other gambling
levice.
That form. which could be conducted by
bookmaker travelling about the city, |
akng and making a hand book Such
orn of bookmaking was necessarily of a
minor form, and could only be success
ully carried on in the crowded precincts
# the city. The act of 1891 was designed,
aid Mr.. Birney, to prohibit such form of
as well all Others by pun
shing both the bookmaker and his patrons.
IN the race tracks such a form of book
making could not be success, and, there
ore, the act of 1883 was wisely allowed to
ta1.d as to that portion of the District be-
-ond the mile limit.
In arguing that the law was ample to
ustain the Indictment, Mr.. Birney said
he court could not construe the law in
avor of gambling unless the act of 1891
learly and with the utmost certainty re-
,ealed the act of 1888. To dismiss the in
ictment, said Mr.. Birney, would be to
liant within the District a fostering sore
ike that just across the Long bridge, on
Alexander Island. Mr.. Birney said he
hot he bod |