Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-03-11

making was carried on as business,
and IL that is, indeed the very fact that
changes lawful bookmaking into unlaw-
full bookmaking, as the government con-
tends, 1t ought, surely, to be alleged ana
alleged with positiveness and distinct
ness
Justice Stafford then reviews the sew
eral counts in both indictments.
Defines Bookmaking.
LAS urged by defendants counsel. the
doer of an act must always occupy some
place. He cannot perform the act without
it. If he bets it may hs said that he uses
the place where he is for betting. If he
makes books at all he must use the place
where he is at the time for that purpose.
Hence it is not enough to say that the
defendant stood in one place or moved
about in one place making books. Inat
is not saying that he kept the place wnere
he was for the purpose of bookmaking,
but only that he happened to be IN mat
place when he was making books me
fact that he performed several acts OF
bookmaking in the same place does not
necessarily mean anything more Inc
standing or moving about in the place is
merely Incidental to the bookmaking. II
is quite another thing to keep piace
for that purpose. That implies possess
being Perhaps it need not be a. strictly
lawful control. Perhaps trespasser may
be q keeper of place In some crcuin-
stances But it implies at least posses
sion and control in fact If not Ill law.
There is nothing in these counts that
shows that the defendant was IN posses
sion and control of any place III any otilei
sense than that he was necessarily some
where when he did the things stated.
To say otherwise would be equivalent 10
saying that one might lawfully make
books but that If he did so either stahu-
ing in one place or moving about IN any
space he would be guilty of Keeping d
place for bookmaking In other words
there is nothing to show that the de-
PENDANTS occupation ana use OF tie P,acs
where he was was anything more thdil
was necessarily incident to the act OF
bookmaking itself. which was i'll that
place a lawful act
Miller Case Cited.
IF section 500 had been held to apply
ONLY to tangible devices and contriv-
ances a plain broad line Of distinction
would have existed between the Of
Tense made punishable by that section
and the offense made punishable by
section 500: but when the Court of APP
peals In the Miller case rejected That
Interpretation of section S65 and treated
the section as applicable TO 4 mere
method of betting. such as oookmakllS
is 1t is not to be wondered at that the
distinction between setting UP d method
of betting one the one hand and using
that method on the other hand Should
be found to be somewhat metdphyslcai
and difficult to apply. With every WISH
to follow the decision in the Miller case
/ have not been able to hold any of the
counts in either of the indictments III
the present cases sufficient
when Congress wishes to change the
law it can do SO without any assistance
with Congress. AS a citizen l should De
glad to see a stop put to all gambling,
but as a Judge / must follow the statute
and give it fair and reasonable IN
depreciation.
I'm accordance with the opinion here
expressed the demurrer to each count
of each indictment will be sustained
and the indictments adJudged lnsum-
Client and quashed.
Mr.. Macfarland's Statement.
After learning of the decision of the
Court of Appeals in the race track case,
Commissioner Mcfarland made the fol-
lowing statement:
II have not, of course. seen the opinion
of the Court of Appeals or any abstract
of it, and. therefore, do not know what
can be done under the law as 1t may
be let by that decision, but We snail 90
, whatever is possible to break up that
race track gambling. l shall want the
corporation counsels opinion after he has
examined the opinion of the Court OF
Appeals, as to what is possible for US TO
do in the premises. Whatever the pres
emit status of the law may be, it is clear
that We must have a new law SUCH as
we have recommended to Congress 10
cover this case. 1t is to be hoped that
Congress will promptly pass the Dill we
have recofnm ended
The bill which the Commissioners have
had introduced in Congress. and upon
which they place their hopes FOR the
breaking up of gambling at Bennlng'
makes It unlawful for any person asso-
cistion or corporation within the District
of Columbia ito bet, gamble or make
books or pools on the result of any race.
game sport or contest OF any kind. !ts
provisions are drastic and the penalties
provided are heavy.
Commissioner Mcfarland also gave out
today a copy OF a letter he has sent to va
rious religious and educational bodies In
answer to their appeal for the abolish
ment Of the Benning race track.
Mr.. Vests Views.
Commissioner West said he will ask the
Commissioners to unite In letter to the
District attorney asking him whether he
will furnish warrants against alleged Of
tenders at the race track upon informa-
ton furnished by policemen. He added:
Police May Raid Gamblers.
THE Commissioners and the police de-
partment stand ready to raid all the book
makers who may assemble at the Benning
race track. and if after they are arrested
they are turned loose the responsibility
will not be with the Commissioners"
Commissioner West held lengthy con-
ference with Maj Sylvester, chief Of po-
lice, this morning and informed him OF
the action he proposed to take relative
10 stopping the gambling at Benning, and
told him to have the police in readiness
and in every way prepared to carry out
his orders
Handbook men are taking a deep inter
est in the decision of Justice Stafford;
thinking the tenor of the decision is such
that they will be enabled to conduct bust
ness outside the mile limit. 1t has long
been the opinion of such men that they
could operate one mile away from the
city limits and have the protection which
was enjoyed by the bookmakers OH the
Benning track. but none OF them made a
test case.
It was stated this afternoon that hand
book business has been hourishing in this
city recently. the Jail sentences imposed
in several cases not having had the eff
feet of driving all of them out of bust
ness.
Stable boys and others who were work
ing at the Benning track this morning
threw their hats high in the air and
shouted loud enough to be heard squares
away when they heard of the decision of
Justice Stafford.