Evening star. [volume] (Washington, D.C.) 1854-1972, 1906-11-14

gaming. It was in the open grounds and
the way he kept the place was to Ak in
1ne rou as A pole OF stake at the e., top 81
ness Under that. He could remove the
umbrella TO any other place. He had no
right whatever to occupy that place. He
was liable to moved on by che police, as
the court says. at the close of the opinion,
but the court held that that made no diff
ference. The fact that he paid no rent
and was liable to be moved on by the po-
lice did not prevent his keeping the place
for the purpose OF gaming, If in fact he
did keep it, Now. the fact that these book
makers have no right as between them
selves and the owners Of the ground to re-
main in any particular locality. 1t seems
to me. has nothing to do with the ques-
ton. II In fact they did keep themselves
In certain places, so that they were at
those respective places setting up and car
rying on this business
Consequently shall be obliged to over
rule the motion and to submit the case to
the jury upon the lines Indicated by what
I have said"
Court Room Crowded.
Standing room was at premium in Grim
inal Court No. 1 this morning when the
trial of the Davis case was resumed. The
sporting fraternity was we'll represented,
the same officials Of the Jockey club, as
well as many players, being in attendance
United States Attorney D. w. Baker. In
opposition to the granting of the motion of
the defense to instruct the jury to acQuit
Davis. reviewed the history of legislation
against gambling in the District, and urged
that the case at bar is governed by the de-
cision of the District Court of Appeals In
the Miller case. Mr.. Baker argued that In
the Klein case, relied on by the defense,
Justice Bradley had held that the defend
ant would have been guilty If the govern
ment had established the fact that the de-
fendant had set UP place at given point
at which betting might have been generally
done.
In the present case. Mr.. Baker stated,
the government had established that Davis
done generally and therefore the require
ments referred to by Justic Bradley had
been established in this case. Mr.. Baker
contended that the Court of Appeals in the
Miller case held that the place was not
the important part of the offense. but that
1t is the gambling device or table where
are held out to the young the seductive al
lurements that is most demoralizing.
Justice Stafford. at the conclusion Of Mr..
Bakers argument. asked him how he ex-
planned the apparent anomaly shown by the
two sections of the code. one of which
provides a penalty Of five years for setting
up a gambling device and the other PEN
atty of ninety days for bookmaking. Mr..
Baker replied that under section 1856 the
statute was framed to punish the setting
UP Of a game Of a public character, at
which persons generally are invited to
play. while under section 800 the book
making referred to Is of a private nature.
Mr.. McNamara's Argument.
Assistant United States Attorney Nc
Namara followed Mr.. Baker and argued
that the two sections providing for the pun
ishment OF bookmaking do not constitute
an anomaly In criminal law. The lesser
crime Is frequently included in the greater.
Mr.. Mcnamara suggested. nearly all codes
providing for the punishment OF simple as
saults and assaults with intent to kill.
Under such statutes the United States at
torney could prosecute for either offense.
Mr.. Mcnamara urged that the parapher-
MALTA used by Davis was absolutely indis-
pensable to the carrying on Of the book
makers business and that all the facts
and circumstances surrounding the laying
of bets brought the case within the pur-
view Of section S65 and also satisfied the
requirements laid down by the Court of APP
peals in the Miller case.
Attorney Delaney Nicoll of the New
York bar closed the argument for the de-
tense. Mr.. Nicoll stated that the exhaustive
arguments of his associate and counsel for
the government had left little for him to
say. He took up the contentious of Mr..
Mcnamara and attempted to answer them.
The Miller case. he said, was decided on the
language of the Indictment, and could not
circumstances of the case at bar, Mr..
Nicoll concluded. were in no degree differ
ent from those of the Klein case. He re-
viewed the testimony offered in that cele-
brated case and claimed that the case at
bar was on all fours with that case and
asked a similar instruction as the one
given by Justice Bradley, that no offense
had been committed. --
Concluding Proceedings Yesterday.
After The Stars report closed yesterday
Mr.. Worthington impressed on the court
that the laying Of odds as carried on at
Benning does not amount to setting up a
gaming table, and read at length from the
decision of Justice Bradley in the Klein
case. which held the law not to apply to
betting at Benning.
Mr.. Worthington urged that the case at
bar Is identical with the Klein case and
asked the court to follow the precedent set
by Justice Bradley and direct the jury to
acquit Davis.
A gaming table. the defense contends,
should turn the trick" but the buyer of
odds at Benning has no connection with
the running Of races. and cannot, thSre-
fore. be said to be setting up gaming
table as prohibited by the law.