Evening star., 1899-03-06
Justice Bradley Directs Jury to Acquit
Klein.
PROBABLE NOLLEPROS0P OTHER CASES
Pool Selling at Benning Not Con-
trary to Law.
THE DECISION FINAL


the defense, argued Saturday. that the jury
be Instructed to return a verdict of not
guilty. The trial thereupon proceeded the
defense presenting it's case to the jury.
Later, however, the motion for acquttal
was renewed by counsel and granted by
the court.
In concluding his remarks overruling the
motion, Justice Bradley stated that ques-
ton of fact was presented that it might be
essential for the jury to consider in view
of the decision of the Court Of Appeals in
the Miller case. He would leave it to the
jury to decide, the court said, whether
Klein did anything more than carry on his
business as an individual. If he did moth
ing more, then he was guilty of bookmak-
ing, under the act Of 1888, which is an Of
fense that is not punishable. If Klein con-
trolled something more, and had a place of
business, TO which he invited people to
come and bet, then he was punishable
under the act of 1891.
In the course of his remarks Justice
Bradley stated that he would have had no
embarrassment whatever as to what dispo-
sition to make of the motion were it not
that the Court of Appeals, in the case of
Miller, had been called upon to pass upon
the legal questions involved in the motion
Il think, in common with many good citi-
zens,' continued Justice Bradley, that
gambling in any form is pernicious. l APP
prove of all legislation in the direction of
suppressing any form of gambling.
would not hesitate to enforce the law re-
lating to any such practice most rigidly.
My objection to gambling, however, would
not induce me to stretch the law beyond
the words of the statute. l am here to in
terpret the law, not to legislate.'
Not a New Question.
If the question involved were new one,
the court repeated, he would have no
trouble in disposing of the motion. The
indictment is drawn under the act of 1888,
and the fourth section of the act was in
tended to define what Is meant by gaming
table-all games, devices and contrivances
''at which money shall be wagered. In
light of the proof in the case at issue. ac-
cording to the court, bookmaking consists
of offer made by bookmaker to bet,
he making a record of the bet, and the
money being put in his hands.
1t would be difficult. in the opinion of
Justice Bradley to hold that bookmaking
would be the setting up Of gaming table,
under the language of the act of 1888. 1t
was perfectly clear to the court, however,
that Congress by the legislation of 1888 and
1891 had made distinct offense of book
making. 1t was meant that the act of 1888
did not include bookmaking-that bookmak-
ing was not prohibited punished by the
act of 1888, and therefore it was essential
that some action be taken in regard to 1t.
The act of 1888 prohibits bookmaking and
bookselling in the cities of Washington and
Georgetown; the act Of 1891 prohibits book
making and pool selling within mile
outside the limits of those cities The Ben
ming track being outside the one-mile limit,
according to Justice Bradley; the act of
1888 did not apply, If the offense was book
making pure and simple.
0ne-Mile Limit.
Justice Bradley then went on to say that
the question of the one-mile limit, raised in
the Miller case, had been decided in the
same way by the Court of Appeals, but
how, Justice Bradley, after careful study
of the opinion, was unable to say. The
Court of Appeals did hold that the first
count of the indictment in the Miller case
was valid, and the demurrer to 1t not good.
The first count in that case was similar to
the indictment in the Klein case. But the
question was presented whether the having
place where pools may be sold Is setting
up and keeping gaming table, or having
such place. or occupying a place tenn
porarily, is keeping a place for gambling.
Pooling or bookmaking schemes are not
places and tables.
What Was Intended.
1t seemed to Justice Bradley, he said,
that the Court of Appeals intended to indi-
cate that beyond the one-mile limit the
simple act of bookmaking is not covered
by the act of 1888, the contention being
that should there be a place set apart for
gambling, whether by means Of bookmak-
ing pool selling, or the like, the party who
set up anu kept tIlS place would be reSDOn-
slble under the act of 1888, while the party
who simply made the pools could not be in
dicted or punished under the act of 1888
However, Justice Bradley held that a ques-
tion OF fact existed that it might be essen
tial for the jury to decide, in view of the
opinion of the Court of Appeals in the Mil
Ter case, and he therefore overruled the mo-
ton.
The defense first called George O. Wheel
ock as witness. He stated that he had
been bookmaker and later a "layer of
Odds and was at the Benning track dur
ing the race meeting last November The
witness never saw Klein standing on a
stool or chair. Mr. Wheelock denied that
Klein was a "bookmaker,'' stating him to
be layer of Odds The latter had no
privileges not extended to any other per-
son who paid the admission fee and was ad-
mltted to the grounds.
The Defendant Testifes. 8.
The defendant, Klein, next called to the
stand, declared that he never stood on a
stool while at the Benning track, nor on
| anything of that character. He occupied
about the same place at the grounds. day
after day, but had no specific spot allotted
to him. In fact he moved about and
played placing bets with other layers of
odds.
Mr. Samuel Ross of the executive COM
| mittee, and a steward of the Jockey Club,
substantiated the testimony of the preced-
ing witnesses. and added that the Layers
VI OuuS COulu CldiHl ITO SpeClHC locality as
| their own; that betting occurred all over
the grounds. and that there were no stools
on the grounds.
Joseph Lee, superintendent of the race
track, gave testimony of similar nature.
Motion for Acquittal Renewed.
Counsel for the defendant at this point
again moved that the jury be instructed to
return verdict of not guilty. The motion
was based on the ground that the facts
I
bookmaking was carried on by Klein did
| not bring the matter within the provision
| of the act of 1888. 1t being essential for the
prosecution to show that the defendant had
| the right of occupation Of a definite place
at the track
| After long discussion Justice Bradley,
granted the motion and directed the jury
| to return verdict of acquittal which was