Evening star., 1898-12-02
| WY ERS ARGUE
Presentation Of Points in the Race
Track Investigation.
MOTION 10 TAKE fHE Case FROM JURY
Conflict OF Opinion Touching
Scope of Previous Decision.
ATTORNEY BIRNEY'S LETTER

| Yesterday afternoon In the trial of the
| Washington Jockey Club officers on the
| charge of permitting gambling on the
! grounds at Benning. argument was made
| by Mr.. Auerbach on the motion 10 have the
| court take the from the jury, and this
| morning the same attorney held the atten-
ton of the court. Mr.. Auerbach as here
| tofore stated, is from New York, where he
| has frequently appeared in similar trials.
| He is said to be familiar with what has
| peen done in such cases, and his argument
| was listened to attentively by the court
| and spectators. He had gathered from
| marks made by the court, he said, that the
| courts mind had already been made up. If
such was the case he wanted to know it,
| for he did not care to occupy the time of
the court unnecessarily.
| Judge Kimball said he preferred to hear
| counsel argue the case fully. The argu-
ment was then proceeded with, counsel call
ing the attention OF the court TO the numer-
Gus laws anecting gambling, and said they
| seemed to be directed more against places
| than persons After reading number of
| authorizes and speaking of the questions
| involved, Mr.. Auerbach declared that this
prosecution was insugated by notorious
/ gambler.
That is not true said Mr.. Baker.
Mr.. Baker, the New York attorney con-
| tlnued, was simply prosecuting the case as
| a matter of duty, and said he had no heart
| in the prosecution.
! This morning when court convened Mr..
| Auerbach handed Judge kimball a copy of
a letter written by Mr.. Birney, when the
latter was district attorney. This letter
was dated March %S, 1895. and had refer
| ence to a bill then pending in Congress.
| Judge Kimball said the letter would only
| be the opinion of a good lawyer and was
| not binding upon the court.
This, Mr.. Auerbach said, he understood,
but he thought 1t might assist the court in
reaching = conclusion.
| Counsel said that when court closed yes
| terday he had spoken on two points, name
| 1y, that what was done on the track is not
| bookmaking, and that there was no occu-
patton shown. On these questions he
| thought, there was not much room for de-
| liberation.
Reference was again made to the decision
| in the Miller case. and Mr.. Auerbach read
| from the statute that it is to be construed
| literally. This direction that a liberal con-
struction be put upon the law, he said GER
| tainy means something.
| Birney Letter Again Referred To.
| Mr.. Birney's letter was again referred to-
and Mr.. Mullowny said that the letter had
| no reference tC the claim of the govern
| n.ent in this case
1T only relates to the men who make the
| bets the prosecuting attorney remarked.
Il thought the prosecution would drift
| into just such a channel said Mr.. Auer-
| bach. but | didn't expect it would drift so
! soon.''
If the men who make the bets are not
| liable, he said, he could not understand how
| the people in charge of the grounds are
| liable
| Mr.. Anerbach proceeded TO read portions
of Mr.. Brney's letter, which was published
in The Star at the time it was written. II
reads as follows:
Il have your letter of the 9th instant
| inc.osing copy of Senate bill 1866 (Fifty
| fourth Congress, first session., for he
Incorporation of associations for the i'm
provement of the breed of horses and 10
regulate the same, and to establish
ing commission, and requesting my opin-
ion upon its merits. l note particularly
the request of the Commissioners, as stat
ed in my letter, to the effect that they de-
sire to knew if it will interfere with ex-
listing law in regard to bookmakng and
other forms of gambling.
There are in force in this District ar
present two principal laws intended to
suppres ss the wee of gambling. The first
is the act CT January 81, 1888 tRtch., 3gi),
which provides in its general s-ope Tor the
punishment of any person who chall be the
Keeper OF place for gambling, who
shall set up er keep any kind of gambling
table or gambling device. The second stat
ute is that of 1891, entitled An act to pre-
vent bookmaking and pool selling in the
District of Columbia which makes it un-
lawful TO bet, gamble or make bets or
pools in the cities of Washington and
Georgetown, and within one mile of the
boundary of either. Without the limit OF
one mile the statutes do not prohs bit, in
terms, bookmaking or pool selling but the
Court of Appeals has held IN The case of
the United States VS.. Miller that a person
who establishes place outs de of the mile
limit at which pools are sold or books are
made thereby fnfrinSeS the act of lSS:s
and may be held the proprietor for gam
n infr haHFi FiIE
Section of the proposed act IS. 1860 will
not, in my opinion, change existing law
upon this subject. The proviso TO that
section prohibits the OCCUPATION of ;ny
room, shed. booth or pace fer the pur-
pose of betting, bookmakng or wagering
and provides that certain acts in such
places not now in terms punishable shall
be deemed to be bookmaking or the use of
gambling devices.
This section will permit betting by per-
sons who are not in occupation of any
room, shed. booth or place for that pur.
pose. But am inclined to the opinion that
such persons could not now be successfully
prosecuted and that their action would not
support an indictment. In this opinion /
am lnhuenced In part by recent decisions of
the Engiish courts to the effect that I'M
Ger statutes providing against the keeping
of a place for betting or gambling no
oHense Is committed by persons who hay-
ing no particular place such as booth
stand or shed makes bets with other per-
sons thereby affirming the wel-known rule
In criminal law that statutes imposing
penalties are not to be extended beyond
their terms.
Suggests Amendment
Il have to suggest, however, that section
of the bill should be amended by a pro-
vision for specific penalty by way of i'm
prisonment or fine. The penalty clause of
the section is follows: And in addition
to the penalty prescribed therefor he for
feits to the people of the United States all
title or interest in any animal used, with
his privlty in such race or trial Of speed,
and to any sum of money or other prop
erty betted or staked upon the result there
Of
I'VE have no statute in force which pre-
scribes penalty for such misdemeanor
and the forfeiture of the animal used in a