The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-01-18
is It A FATAL DEFECT2
A Demurrer Filed in the Kelly
and Egan Case.
IMPRISONMENT FOR LIFE
Attorney Healy Thinks He Has Discov-
cred a Flaw in the Anti Gambling
Act-He Will Be Heard by
Justice Trapp.

]. T.. Healy. counsel for Patrick Kelly
and j. NJ Egan. the proprietors Of the
place where Martin o'Connor was killed
by Bob Shadwell over a game of cards,
and who were arrested for renting their
premises for the purpose of gambling.
thinks he has found a fatal defect in
that portion of the anti-gambling act
which relates to persons renting their
premises to others for gambling pur-
poses. Kelly and Egan are charged
with a misdemeanor and the law pro-
vides for them. i'm case of conviction. a
fine of not less than 800 nor more than
$500 and costs, and further provides
that IL the fine and costs are not paid
the defendants may be imprisoned until
they are paid, without placing any
limit on the term of Imprisonment OF
providing that the fine shall be served
out by the Imprisonment. from which
Mr.. Hea.y argues that a man convicted
under that law could be imprisoned
for life if he could not pay the fine. The
supreme court has also decided that
costs in any case of misdeameanor or
felony is "a civil judgment and that
defendant could not be sent to jail in
defatet of its payment, as that would he
Imprisonment for debt.
Another point raised is as to the jun
isdiction of the justice of the peace.
which is limited To fine of $500. and
Mr.. Healy therefore contends that the
law makes mistake in that regard
also when il provides for "A judgment
and Imprisonment for $500 and costs.
for with the costs the amount for which
the justice OF the peace had jurisdic-
ton would exceed the $500 limit. These
points were raised in demurrer filed
to the complaint against Kelly and
Egan in Justice Trapp's court yester-
day
The different grounds of the demurrer
as set forth are that the complaint does
not state facts sufficient to constitute
public offense, in that it does not APP
pear that any offense has been COM
mtted by any person, and that there
are no facts stated that constitute
public offense under the laws OF the
state. and for the reason that the court
cannot enforce a judgment in the case,
that the complaint does not substanti-
ally conform to the law. for the rea-
son that 1t does not make it appear ut
what time. on what date on when the
alleged offense was committed nor
where or at what place the alleged room
was situated, nor who the persons We're
that played at the game. nor by whom
the rooms were rented to the defend
ants, and further. that ii does not APP
pear from the complaint whether the
game was played at for money or for
1 checks or for other representatives of
! value or whether ii was played at by
one or more persons, or by any one or
J for all of the alleged articles or only
I one of them. and further that ii does
not appear in what way or how or in
4 what manner the representatives OF
value were of value or by whom they
We're redeemed: that the complaint does
not describe the nature or character OF
4 the game designated as stud poker or
4 how it was played; that 1t does not
| show in what manner the defendants
are guilty of criminal intent. in that
i it does not show that they had any
means Of preventing the commission of
/ the alleged offense: that ii does not app
pear by whom the game was conducted
/ or by whom the game was dealt. in all
4 of which particulars. says the demurrer,
! the complaint is uncertain and unintel-
ligible: further. that the court has no
jurisdiction of the offense charged. for
/ the reason that the court has no power
to carry out the punishment which II
i would be called upon To carry out
should the defendants be found guilty.
I that the act of the legislative assembly
/ in SO far as it relates 10 the alleged
crime charged against the defendants,
i is and would be an unconstitutional de-
priyation of the liberty of the defend
ants for the reason that they are not
made responsible for their own acts,
i but for the acts of others of whom no
mention is made in the complaint. The
complaint is demurred To for the fur
/ her reason that the act of the legsla-
! tive assembly does not put any limit on
+ the period of time for which the de-
/ PENDANTS might he imprisoned should
they he found guilty of the alleged Of
Tense.
The demurrer will be argued before
1 Justice Trap this morning and If it Is
not sustained. the trial Of the defend
ants will take place tomorrow. The
part of the gambling law attacked
by the demurrer relates only to per-
sons renting their premises TO others
/ for gambling purposes and makes the
effense a misdemeanor, punishable as
related above. Others guilty of a mis-
i demeanor are the men who play or bet
/ at the game. but no special penalty Is
provided for them. and they are there
/ fore punishable under the general pro-
vision in the code. which makes the
punishment for misdemeanors generally
| six months in the county Jail or fine
/ of 1900. or both such fine and imprison-
ment The only persons who can In
i prosecuted for felony under The anti
I gambling law are the proprletors Of the
I game and the dealers.
Consult DR.. r. q. Heine, the eye. ear.