Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-03-11
RACE TRACK RULING
Method of Betting at Benning
Not Unlawful.
JUSTICE STAFFORD'S VIEW
Decision Given This Morning in
Pending Case.
BO0KMAKER'S PLEA SUSTAINED
Appeal to Be Taken by the Govern.
ment Attorney-May Be
Heard in April.
PLEA SUSTAINED

Heard in April.
Judge Stafford today, in sus-
tanning the demurrer in the case
of John Walters, who had been
indicted OH the charge of setting
up a gaming table, decided that
the persmbulating form of gam
bling in vogue at the Benning
race track does not constitute the
setting up Of gaming table. The
commissioners will urge Con-
gress to pass a drastic anti-gam-
bling law.
The perambulating form of betting in
vogue during the last three meetings at
Benning does not constitute the setting
up gaming table. and is merely book
making. which outside the mile limit Of
the city of Washington is not unlawful
The foregoing is the keynote Of the
opinion rendered today by Justice Staf-
ford in Criminal Court No. 1 in sustaining
the demurrer of John Walters, a New
York bookmaker, to two indictments re-
Gently reported against him. charging the
setting up Of gaming table.
The opportunity to WOO the goddess
Fortune will, therefore. it is said. be given
TO the sportingly inclined at the coming
spring meeting as result of the opinion
foiIowing his action i'm the Davis case
United States Attorney Baker will allow
the bookmakers to ply their trade pending
decision of the District Court of Ap-
peals provided they continue tn n,ova
about the inclosure as at the last meet,
ing. An appeal will be Immediately taken
py tne United States attorney from the
decision and an effort made to perfect
tne record SO that the case may be argued
Win the Davis old-method bookmaking
case at the April term of the Distr,rt
Court of Appeals
Walters was represented by ATTORNEY
Joseph Auerbach Of the New York bar
ana Attorneys A. 3. Worthington and
j. ]. Hemphill of this city
Justice stafford's Opinion.
Justice Stafford in his opinion says:
These are two indictments for sup.
posed offenses against the gambling law.
The defendant has demurred to each and
every count, and the question as to each
count is whether it sets forth facts which
constitute an offense. All are aimed at
bookmaking. Some of the counts attempt
to charge it as the setting up and keepins
of gaming table: others attempt to
charge the keeping Of place for gaming
that Is. place where bookmaking 10
carried on.
''AG Of the offenses attempted to be
charged in these indictments are alleged
to have been committed two miles from
the boundaries of the city-that is to say,
In territory to which section $50 of the
code does not apply, which is the same
thing as to say that as to what may be
called the inside territory the statute
prohibits the making of books, in so many
wordsj while in the outside territory it
does not. The natural inference is that
the mere making Of books is not unlawful
in the outside territory, where the things
government comedies this. but it contends
that the mere making Of books is one
thing and the keeping of place for book
making, or the setting up and keeping
of bookmaking, is another. The dis
tinction was made and applied in the prin-
cipal case upon the subject. Miller ast.
United States, 6 App. D. c., g.
After reviewing the Miller case in the
Court of Appeals. the decision of the late
Justice Bradley in the Klein case and JUS
tice Staffords own ruling in the Davis
case. in which he held the having of a
fixed place to receive bets violated the
law against setting up gaming table,
Justice Stafford continues:
In passing upon the several counts
now before me the difficulty is to deter
mine just how far one may go in the
making of books without setting II up.
The governments contention Is that 1t is
set up when 1t is carried on generally and
the public generally are invited to bet
with the bookmaker. The embarrass-
ment about adopting this view is that 1t
does not seem to leave any real and sub
stantial distinction between bookmaking
and the setting up Of bookmaking.
Bookmaking Was Not Charged.
For as understand it. the mere maxi
ing of books implies this very thing-a
making of divers bets with divers persons
according to stated odds offered generally
by the maker of the book. 1t is not an in
dividual act Of betting
1T is not the offer and acceptance OF
bet, even though a memorandum OF that
bet be made, that constitutes oookmak-
ing, but the general offer and acceptance
of the bets and the systematic recording
of them None of the counts charges eX-
pressly that the defendant was carrying
on bookmaking as a business IneT
take, bets from divers persons. that he
exhibited a program on which were dis
played the odds he was offerinS. so far
as the number of persons Is concerned
with whom the defendant Is aieged 10
have done business it is not perceived how
he could have been making DOCKS at All
without doing what is alleged: that is.
without offering to several persons to
make bets at stated odds and taking ana
recording their bets.
Whether the case would be changed at
all by an allegation that he was doing
this with any and all persons who cared
to bet need not, perhaps, De consfoered'
since II ia not alleged. 1t would seem.
however, to be a narrow position to take,
that the law says, You may make DOCKS,
but YOU must not make them with every
body who comes along. You may make
books and you may make them with more
than one person. but you must not make
them generally.
eft would rather seem that the diStinc-
tion between the making Of books. which
Is lawful. and the setting UP OF such max
ing which is unlawful, If IT Is to be main
tained at ALL should be looked for In such
as those which were held
to be determinative in the Klein case and
the Davis case. It may not be necessary
to saw that bookmaking cannot be set up
except in a fixed and immovable str-uc-
ture or place. that it might not be set UP
in Il travelling booth, nor even that such
a moving structure might not be
place within the meaning Of the stat
ute. But it does seem clear that there
must he something more tangible and
than the mere fact that book
making is going on even as business.
Eut. as already observed, the present in.
dictments do not charge that the book.