New-York tribune., 1902-05-11
BOTH SIDES CALL 1T VICTORY
POLICY MEN AND "ANTIS" SAY APPEL
LATE DIVISION DECISION FA-
VORS THEM

| BY decision Of the Appellate Division OF the
! Supreme Court placing construction on Section
Sab of the Penal Code the policy men believe they
have gained distinct advantage. and now declare
that 1t will be exceedingly difficult obtain a con-
| viction under that section.
The decision was handed down yesterday I'm the
case against William Flynn warden of the Tombs
John Wilson held in a magistrates court on
the charge of having article Of a kind such as is
commonly used I'm the game OF policy. An applca-
ton for writ of habeas corpus was made, and on
the return of the writ the warden filed a commit
ment. The decision of the Appellate Division was
made on an appeal from order dismissing the
writ of habeas corpus Wilson has been indicted
and is bail
The case was made test by persons sup
posed be interested I'm policy through William W
Cantwell. of CantweI & Moore. as attorney. The
appeal made on the ground that Section sab
was unconstitutional on this point the Appellate
Division holds that lit does invade any con-
sttutional right possessed by the reIator."
OF this section the decision says: Section Sab
does not, either in terms or otherwise. define any
offence. 1t simply provides a rule of evidence 10
be applied where the defendant is charged with the
game of policy hut of itself it neither creates nor
defines any offence"
II was the contention. of the reIator tina. the ma
terials used in and about playing of policy are
such materials as are in common use and that
the of such articles is common and legitimate.
The court agrees with this contention but says
that the rule is applicable where the articles are
found under such circumstances and conditions as
indicate that they may have been used in viola
ton of Section 34ia.
But the following ruling of the court is what the
policy say renders it difficult convict under
Section 3ilb
a. 1t is manifest that the rule provided in Section
SSib can only be applied when the articles found
thd9 mat th.y may nave been used IN violation of
the prior section. and in order that the people may
1t must be made to appear that the articles in
use in connection with the place for doing the
prohibited a Inference rom
the circumstances surrounding the possession that
they We're or might have been unlawfully used.
1t Is erroneous. therefore, say that the mere
% possession by merchan dealing in these articles
lawful use is subject TO the rule Of evidence pre-
further and show a relation between the principal
fact. viz the existence of a condition from which
have been used in violation of the provisions OF the
section defining the offence
The decision. which was concurred IN by all the
justices, closes with the words:
The mere possession of the articles upon which
the presumption is founded must bear fair rela-
stped ~ tb ci oosfon f ,i ot me OgnSe 80 con-
sttutional right of which the relator is possessed.
be affirmed
Mr. Cantwell when this afternoon said:
think the decision is most important Although
the court does not agree with my contention that
Section Sab is unconstitutional it places in
terpretation on it that will practically render it in
pellate Division 1t must be shown that any ar
6 Gle gsGay used in PLAYING policy was guitly
had connection with the place raided. very
well pleased with the decision. and aEi not sure
whether will carry il to the Court of Appeals
to pass on the constitutionaty Of the section
Charles p. Blaney counsel for the Anti-Polcy
League. put quite a different construction on the
ruling. He said:
The ruling a decisive victory for the Anti
Policy League. IL sustained their contention. The
contention that the possession Of policy slips is
presumptive evidence OF crime that, IL the de-
fendant came into possession of those slips inno-
matter