The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1901-10-04
WILL APPEAL CASE
NEW PROCEEDING IN T0WNER
TEST GAMBLING PROSECUTION.
PREPARING ANOTHER PLEADING
Refusal of Writ of Habeas Corpus Not
Decisive-Defendant's Lawyers Will
Go Up to the Upper Court in
Another Way.

| The attorneys who have the interests
! of T. o. Towner in their care in the
| Towner gambling test case, though de-
! feated in their efforts to secure writ
| of habeas corpus from the supreme court
and by means of that process raise the
| question of the constitutiOnality of the
anti gambling law for determination by
the upper court, have not given up the
case. They are preparing new way by
which to bring the matter before the
supreme court, and they still have faith
in their ability to knock the law out.
They are now going up on an appeal
from Judge McCiernan's judgment in the
case. The appeal was being prepared
today. The defendants lawyers are ex-
Governor Smith and Attorneys Parr,
Sinclair, Wines and Levy. Ex-Governor
Smith was interviewed today regarding
what the next step to be taken by the
defendants lawyers would be.
1T is understood, governor, that the
supreme court refused the writ Of ha>
beas corpus applied Tor in the Towner
case. Does that conclude the matter
finally?" Governor Smith was asked.
1T concludes the matter as far as
the habeas corpus proceeding is concern
ed,' was the answer.
"Then the case Is ended, is it,"
"Oh, no: we are going to take the
matter up by appeal today. We will APP
peal directly from the Judgment of the
lower court"
I'm that way you will bring up the
constitutionality of the gambling law.
will you?"
Yes, sir" the governor replied.
lis there any statement that 1 can
,nly hNNr h.N 10 hn
asked
mo-" he replied, except that we con-
slider the law unconstitutional"
The lawyer went on to explain that
the refusal of the writ of habeas corpus
did not determine the question.
What was the reason given by the
supreme court for declining the WRIT"
he was asked.
From Mr.. Parr understand that the
court did not care to decide a constitu-
tional question upon an extraordinary
writ. It preferred that the matter should
come up on appeal" he replied.
Mr.. Smith said that the appeal in the
case will be sent over to Helena and
filed in the case, and that it will prob
ably come up for consideration in so or
40 days. ....... .'...+.
The defendant Towner, was fined $1OO
by Judge McClernan, and he is serving
| out his fine now constructively at the
rate Of 81 a day. IT the appeal comes
| up within the time named his alterna te
! term of imprisonment will not yet have
| been exhausted. He has furnished the
! sheriff with an indemnifying bond of slof
in cash to secure the latter from loss in
case the matter is adjudicaSed against
| him. o., '--..
In the Reynolds test case, in which AZ
| tor is f1a 1ofo rlo,, sr oo3
the writ of prohibition asked from the
supreme court having been refused. the
machinery Of the lower court will re-
sumo operation presently, and the trial
| of the defendant, interrupted by the pro-
| hibition writ proceedings, will take
| place.
| Deputy County Attorney Yancey. who
| took part in the prosecution of the de-
| PENDANTS in the gambling test cases, saif
| today that the county attorneys office
| would continue to prosecute the cases OF
| all persons arrested for violating the
anti-gambling statute.
The county attorneys office, having
convicted Towner and sent him to Jail
constructively, Is no longer connected
with his case. excepting as the support
CIR Of the attorney general in any pro-
ceedings that may arise in the supreme
court in which its help may be needed.
Ex-Governor Smith is not Interested ir
the Reynolds case, but he represented
the ether four defendants arrested with
Reynolds He was asked today if the
proceedings against these clients of his
would be made test cases.
He re,ll ed in the negative. saying tha,
one case would test all of them.
The continuation of the prosecution OF
| Reynolds in the district court before
judge McClernan will be the next gamb.
ling trial of interest in the court here
There are several other new defendants
against whom infoln!'ations are being