The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-01-07
w VI utuVOL NV
Gamblers Face Most UnpIeas-
ant Situation.
Judge Hazen Would Send Them
to Prison.
SENTENCE is ILLEGAL.
Would Have to Be Re-sentenced
to PenitentiRry.
Prefers to Leave the Question
to Successor.
SENTENCE is ILLEGAL
Mike Thompson aud CO-workers
Now in Hot Springs.

NOW AH HUI OpE1uSBs
Mike Thompson, Wood Fowler. 81
Hurst and Tobe Tobias, the Big Four
Topeka gamblers, are in the shadow
of the Kansas penitentiary at Lansing.
They are now at Hot Springs running
a gambling house, pending the de-
cision.
Judge Hazen believes that they
should be sentenced to the peniten-
tiary under the Cubbison anti-gam-
bling law and the reason he has not
sentenced them to serve terms in the
penitentiary is because he is retiring
from the position of judge of the
Shawnee district court. One of the
heirIooms of the new judge, A. w.
Dana viii be the gambling case.
The four gamblers were arrested on
two warrants issued by County Attor-
ney Hungate. One warrant charged
them with violating the CubRison
gambling law and the other warrant
charged them with violating the anti
slot machine law. The four pleaded
guilty to violating the slot machine
law and were given jail sentences of
three and four months
After they had served two months
in the county Jail their attorneys, g.
G. Clemens and c A Magaw, brought
release on the ground that the slot
machine law is unconstitutional.
Judge Hazen believes the law un-
constitutional and that the sentence is
void, but he also intimateS that he
believes that when that sentence is
annuIled that the four who pleaded
guilty should be held for further sem
tence and that that sentence should
be to the penitentiary under the CUB
bison law.
The last official act of Judge Ha-
zen before ordering court adjourned
this morning was to make a statement
concerning the cases undlsposeo OF.
Judge Hazen said, in reference TO
the cases:
are the habeas corpus cases of Thonp-
son Fowler, Tobias and Hearst, and
the case of Lucas VS.. the county; in
which Lucas claims certain ices
against the county. This last case was
only argued few days ago and the
attorneys for the plaintiff have not
been able to furnish the court the
brief which they desire to furnish and
by consent will decide that case next
week as judge pro tenn.
s'In the habeaS corpus cases of
Thompson ,et al, referred to, do not
feel justified in deciding those cases,
but prefer to allow my successor TO
do so. I have various reasons for
this. Some of the reasons are personal
and others are legal reasons. In the
first place these parties were charged
with a felony under the Cubbison law
for keeping and maintaining gam
bling house. Before the cases came
on for trial an understanding was ar
rived at between the parties and the
county attorney by which the infor-
nation was to be changed from
charging a felony so as to charge a
misdemeanor under the slot machine
law, a law which was passed subse-
quent to the Cubbison law. That
change was made in the information
l~x~4e
ties We're to enter a plea of guilty IN
der the slot machine law, quit business
and close UP their gambling house.
The case was carried on for some
time for the purpose of seeing wheth-
er these parties were acting in good
faith and carrying out their part of
the understanding. 1t appears that
they did So They closed their estab-
had and went out of business. They
were afterwards sentenced, under the
plea of guilty which had been en-
tered, to Imprisonment in the county
JAIL the proprietors receiving a SEN
tence of four months each and the
employees q sentence of three months
each. After they had served some
thing like two months each they ap-
piled to this court for a writ of
habeas corpus upon the ground that
the slot machine law under which
they had entered their pleas of guilty,
was unconstitutional and therefore
IndJ the imprisonment was illegal.
and that was the question that was
discussed on the demurrer to the re-
turn of the officer in these habeaS
corpus cases. Their contention was
that the court should discharge them,
that they should be relieved from i'm
prisonment because the law is uncon-
stitutional
"On account of my personal knowI-
edge of the understanding between
the county attorney and these parties
it seems to me it would be acting in
bad faith on their part towards the
state if they should be allowed to go
without further punishment under
their understanding, and yet of course
a plea of guilty is unconstitutional
they are entitled to be discharged
from i'm IMPRISONMENT
But that is not the difficult ques-
ton that the court has to handle. If
the law is unconstitutional and they |
are illegally imprisoned, then the
question arises whether or not they
would not stand for further sentence !
AS I understand it. alth ough this in !
formation as it now stands is drawn /
good under the Cubbison law and it I
would be up to the court to say
whether these men should be held
and sentenced to punishment under
the Cubbison law.
eff / were to remain on the bench [
until these cases could be finally dis-I
posed of I would dispose of them ac- I
cordinR. to my views in relation to the
rights of the parties, but do not see
how I could make an order at this
time that would be entirely satisfac- i
tory to the court, because my success
sor might not agree with the view l 4
in relation to it and might
not be able to carry out the views that
this court entertains for that reason
This being court matter and not a !