Evening star., 1899-03-04
RACE TRACK TRIAL
Attorney for the Defense Asks for
Acquittal.
ARGUMENTS IN SUPPORT OF MOTION
Government Contention Stated by
Attorneys Davis and Gould.
JUDGES DECISION RESERVED

When the trial of Max Klein, indicted for
violating the gaming law on the Benning
race track, was resumed this morning be-
fore Justice Bradley in Criminal Court No.
2 District Attorney Henry E. Davis and
Mr.. Joseph Auerbach of New York, the
latter senior counsel for the defense, made
their appearance for the first time since the
hearing began. District Attorney Davis
yesterday was engaged in the trial of a
civil cause in Circuit Court No. 2, while
Mr.. Auerbach was detained in New York
The proceedings yesterday were conducted
by Assistant District Attorney Ashley NJ.
Gould for the government and Attorneys
A. s. Worthington and Herbert Barry for
the defense. AS reported in The Star. the
government closed it's case and an adjourn
ment was thereupon taken until today
Attorney Auerbach opened the proceed
ings this morning by requesting permission
to read from the testimony of one of the
officials of the Washington Jockey Club
given in correction with the recent raca
track trials in the Police Court Objection
was entered by District Attorney Davis
and the testimony was not read. Attorney
Auerbach next moved the court to direct
the jury to return a verdict Of not guilty
Arguments on the motion followed, occupy
ing several hours.
1t was explained to the court by Attorney
Auerbach that he did not make the mo-
ton as a matter of form, because he
reasonably expected that the court would
not let the case go to the jury. Beginning
his argument the attorney, referring to
the law under which Klein was indicted.
declared that it was aimed at gambling
houses, where gaining devices are "set up
and kept" 1t is no offense for men to
gamble and bet at the Benning track ac-
ccrding to Attorney Auerbach for there
exists no statue prohibiting 1t.
Defines the Issue.
Continuing, Attorney Auerbach asserted
that the question at issue was not whether
the defendant, Klein, bet and gambled dur
ing the race meeting last November, at the
Benning track, but whether he bet and
gambled in connection with the setting up
and keeping of a gaming table. 1t was
added that there must be place in which
a gaming table is set up and kept 1t was
argued by Attorney Auerbach that the in
dictmen could not stand unless the dis
trict attorney could prove that the parties
controlling the Benning race track let out
booth or place to the bookmaker where
the latter could set up and keep a gaming
device. This, it was charged, had not been
proved.
In reference to the Miller case brought
several years ago to test the gaming law
in this District, md in which the Court of
Appeals held an indictment similar to that
in the Klein case to be good, Attorney
Auerbach maintained that the two English
cases, on. which Chief Justice Alvey based
his opinion, have since been diSapproved
In fact, said Attorney Auerbach, the Court
OF Appeals in the Miller case undertook
not to decide, but to legislate.
The Government Side
Attorney Auerbach was followed by As
sistant District Attorney Guild and the lat
ter by District Attorney Davis. They dis
cuSsed at some length what had been
proved In the case and also detailed the
reasons leading up to the passage of the
several gambling laws in force in the Dis
trict of Columbia. 1t was contended that
the ruling of the Court of Appeals in the
Miller case sustained the validity of the
Indictment in the Klein case, and that the
bookmaking as carried on at the Benning
track last November brought the indicted
bookmakers under the operation of the law
Mr. WOrthingtOn's Argument.
Attorney Worthington, following Mr.
Davis, argued in support of the motion
tlat the court direct the jury to return a
verdict of not guilty.
Mr.. Worthington laid particular stress OH
the declaration that bookmaking, If carried
on outside the one-mile limit, is not a yio-
lation of law.
AttorneyAuerbach said few words in
closing the discussion, and it being near
the usual closing hour, Justice Bradley or
dered an adjournment until Monday morn
ing, reserVfng the announcement of his rul-
ing on the motion until that time