The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1897-11-18

B~INDHRuAGLb'A PLEA.
Court of Appeals Asked to
Set Aside the Conviction
of the Freebooter.
Mr.. M'DERMoTT'S ARGUMENT
Prosecutor Wintield's Sarcastic Re-
marks About the Attractive
ness Of the Hoffman House.
!. M'DERM0TT'S ARGUMENT
Especial to THE Jersey city News."l

Especial to 1.-The Jersey city News.
TRENTON, Nov. Is, 1s97.-In the argu-
ment before the Court of Errors and APP
| peals yesterday of the appeal of Freehold
er Bindernagle from a conviction OF Keep
ing a gambling house in Weehawken yes
| terday Mr.. McDermott commended that
the Supreme Court would not have
affirmed the conviction of Bindernagle
had there not been a total misapprenen-
sion of the condition shown at the trlal-
The judge who wrote the decision, ne
said, declared "the evidence introduced,
and as it stands ~undisputed, shows at TINS
place there are three buildings. one is a
brick building. in which the defendant
kept a saloon. The main floor contained
a barroom and to the north of the bar
| room and connects with it was q restau-
rant"
Mr.. McDermott claimed hat what the
| evidence did show was that the buildings
were disconnected and dissimilar in con-
struction, one being of brick n the
other of wood. $50 far is this from being a
| correct statement of the evidence" Mr..
| McDermott went on, that the case
shows no instance where n persons
Others than officers of the law ever
passed through the defendants hotel to go
to the alleged disorderly house. If any
| such evidence had been offered an entire
ly different case would have been pre-
scented by the State"
Mrs. Hoffman. mother of Bindernagle,
who, the State claims, testified that her
son Philip managed the property for her.
did not testify that the defendant had
charge and control of the property, Mr..
McDermott contendnd.
The next point raised in behalf of the
defendant was that the State did not
claim that Bindernagle was ever in either
of the buildings charged to nave been
kept as disorG arly houses. Mr.. MoDer-
mott argued Ulis point at length, quoting
eopiously 1roIl the testimony of the
Next he so Ight to prove that the brick
building In which .B~iniernagie kept his no.
tel was notgused as Il means of access to
the other buildings in which the gambling
was carried on. The exceptions were then
taken up by Mr.. McDermott.
The first exception was to the admission
of testimony as to what occurred in No.
2, in the absence of the defendant. The
witness, futile, was allowed to give his
testimony notwithstanding objection. The
State did not promise to connect the de-
| PENDANT with the occurrences told. The
District Attorney Said:@"lf 1 don't on
meet him with the room, of curse it will
be stricken out. l called this man because
he wanted to go away The court hav-
ing allowed the State to proceed on this
statement, reiteration of objection would
have been impairment, and the defendant
was obliged to wait the closing of the case
for the prosecution, when, notwithstand-
ing that the defendant had not been
| shown to be in any way connected with
the disorderly houses or either OF them,
a motion to strike out the testimony was
denied and the second bill of exceptions
was sealed on the refusal of this motion.
After quoting numerous authorities and
urging some time as to the error of this
proceeding, Mr.. McDermott took up the,
| thirteenth exception, which was that part
of the charge wherein the court said
But considering all these various build
ings, their situation and connection with
| each other, If any, should you find thai
there was evidence hat there was betting
upon horse races being carried IN in one
of them, and in another gambling in vari-
Gus forms, then it Is for you to say wheth-
er the defendant, licensed to keep an inn
or tavern on the premises marked pink.
had anything to do with the other build
ings where those illega al practices were
being carried on or maintained"
1T will be seen that the court" said
Mr.. McDermott, did not misapprehend
the extent of the license granted by the
town to the defendant, and. indeed, there
Is no room for misrepresentation. The town
clerk testified that the defendant was IL
| censed to keep the brick building; and if
he had kept his inn and tavern in either
of the other buildings he would have been
indictable for SO doing
There being not a word of evidence to
show hat the defendant, by word or ges-
ture. assisted. encouraged or signified his
approval of the acts detailed by Mr.. Tut
tie, and it not being shown that he
owned or controlled the premises, or had
anything to do with them, it was error,
in the first place, to admit the testimony.
and error. in the second place, to refuse
to strike it out.
The fifth exception was to the refusal
of the Cour to charge that there was
mot any evidence that defendant had
/. any control of the building notsowned by
his mother, or that he was ever in that
building"
The sixth exception was to a refusal to
charge that the defendant could not be
held liable for anything that he could
not a prevented, and that he could not
prevent anything in the building that he
did not have charge or ownership Of"
The seventh exception was to refusal to
/ charge that there was not4.any evidence
in this case showing that the defendant
had any control over the building at the
south of his hotel" The Court refused
to charge these requests, "other than as
already charged"
After arguing these points Mr.. McDer-
mott closed. He was followed by Mr.
Winfield, who began with a suceinct
statement of the case and a summary of
the testimony which went to prove that
Bindernagle was guilty of the charge of
which he had been convicted. In speak
ing Of the time THAI the Sheriff's officers
were at the place and the sports from
/ New York went away after a brief con-