Evening star., 1895-01-24
MILLER'S TEST CASE
May Prove q Serious Affair to the Book
maker.
Judge Cole Upholds Both Laws Against
Bookmalking In the District
His Opinion Today.

l. Judge Cole this morning reafhrmed his
decision of year ago. that bookmak1ng
cannot be lawfully conducted In the Dis
trict Of Columbia.
The decision rendered today was in the
case of Fred. T. Miller, who stands in
dicted for conducting bookmaking at the
Benning race track early last month. AS
he held in the case Of the indicted Ivy City
gamblers a year ago. Judge Cole held today
that the act of 1883, prohibiting the set
ting up and maintaining of gaming tables
and other gambling devices and contriv-
ances, and the act of 1891, prohibiting
bookmakfng in the cities of Washington
and Georgetown and within one mile of
either city, stand together. Both acts,
again held the court, prohibit bookmaking,
although each act provides different
penalty. and the district attorney may,
where the .offense is committed within the
elect as to under which act he shall pro-
ceed; the act Of 1883 applying alone where
the offense Is committed outside Of those
limits.
The Decision.
Judge Coles opinion today was very
brief one, and, referring to the first con-
tention OF Millers counsel, that the act OF
1883 had been construed by contempora-
neous construction as not to prohibit book
@S
agree. 1t was true that Police Court Judge
Smell had held that the act did not pro-
hibit bookmaking, but that construction
was a judicial one, an erroneous one, IT
seemed to him, said Judge Cole, and should
not, therefore, be sustained. The fact, ex-
planned ] ldge Cole, that successive DIS
trict attorneys had failed t. enforce the
act Of 1883 in the matter of bookmaking
amounted to nothing. Until recent years,
he said, horse racing and gambling thereon
had been seen here but twice year, and
for but a few days in the spring ana Iali;
But the evil had grown Until racing ana
gambling came to be pract1ced at all sea-
sons of the year, and ii may have been
that not until the evil had reached such
proportions that the present district at
torney felt called upon to enforce the law.
AS the act had never until then been
construed by such an officer there was
nothing in the contention of the defendant
that the act had been legally construed in
his favor.
No Legislative Construction.
He was, continued Judge Cole, also una
BILE to agree with the defendants counsel
that the act of 1883 had received legisla-
tive construction by the passage by Con-
gress of the act of 1891. The contention of
the defendant, explained the court, was
that Congress, in passing the act Of 1891,
Construed thu act of 1888 to mean that
the first act did not prohibit bookmaking.
But, remarked Judge Cole, the act of 1891
does. not show that Congress had before
1t, or considered, or even knew of, the act
of 1883. Neither do the debates In Congress
SO show Granting that Congress did in
tend to ccnstrue the act of 1888 in favor
OF permitting bookmaking in certain parts
of the District, it had failed to So declare
in the act Of 1891. He VAS therefore de-
act of 1888 had received no legislative con-
struction.
Not Repealed.
Referring to the defendants contention
that the act of 1888 had been repealed by
implication, Judge Cole stated that he
could not so hold There was, he said. no
such inconsistency. The act Of 1881 was
intended to prohibit bookmaking in all
forms, whether the conducting of it did or
did not involve the setting up of a gaming
table or other gambling device or con-
trivance. There was no reason why the
act of 1891, said the court, should not have
been added to the act of 1888, and the two
attorney having the right to elect under
which he should prosecute, where, as In
the present case, the alleged offense was
committed beyond the limits prescribed by
the act of 1891. The earlier act, said Judge
Cole, in conclusion, was in force through
out the whole District, while the later act
was in force in certain part thereof. the
defendants demurrer to the Indictment
which charged him with committing the
offense beyond the limits mentioned in the
act of 1891, would, therefore, be overruled
and the defendant required to plead. 80
VIII Ask an Appeal.
Mr.. Henry E. Davis. counsel for Miller.
was however, granted leave to apply to
the Court of Appeals for an allowance Of
appeal from the courts decision. Dis
trict Attorney Birney. believing that the
public interests do not authorize the al
lowance of such an appeal previous to a
trial of the defendant, WILL 1t is under
stood, oppose it's allowance. If the Court
of Appeals sustain his view. Mr.. Birney
will, it is stated, try Miller at the earliest
practicable day. The maximum penalty
under the act of 1883 is five years impris-
Onment.