Bisbee daily review. [volume] (Bisbee, Ariz.) 1901-1971, 1909-09-03
GAMBLING CASES TO Be PUSHED;
IMPORTANT POINTS INVOLVED
DECISION OF HIGH
ON DELICATE POINT
RAISES DISCUSSION

A matter of statutory law exciting
much comment among the disciples Of
blackstone has arisen in connection
, with the Lowell gambling case.
Section $40. of the penal eide Of
Arizona, provides the. IN ali trials
! of misdemeanors in the courts of
this territory. where Jury OF tweiys
persons shall be empaneled to try
such cause, the concurrence of three
fourths Of such jury shall be sufficient
to render verdict therein. And
in all such jury trials, when three
fourths of the jury do agree said
threefourths shall sign the verdict so
agreed upon by them. and notify the
court Of that act, whereupon all of
said jury shall be returned into court,
and shall deliver to the court the
verdict sc signed. and the court shall
receive and cause to be read and re-
corded such verdict In the cause, and
judgment shall be entered thereon
as in other cases. AS the allegations
contained in the complaint whereby
Frank Schmidt is charged are COM
prised in the statute known as Act 80
Of the eSssion Laws of 1908, the Of
Tense wherewith the defendant is
charged is statutory, and therefore
comes within the provisions of above
mentioned section of the Arizona
penal code.
Justice High refused TO take cog
nizance of that statutory provision
at the last trial of Frank Schmidt,
basing his ruling upon United States
supreme court decision. cited under
the seventh amendment of the con-
stitution, and equally applicable to
the sixth amendment, declaring any
such provision nf Territorial territorial; ::-.is-
lature to be demonstrations under
certain conditions, and therefore inop-
erative. In the case of the American
Publishing Co. VS.. Fisher the court
concludes "unanimity is one of the
trial by jury at common law, and the
constitutional right OF trial by jury is
violated ~ territorial statute auth
orizing a verdict by the concurrence
of verdict by nine or more mem
bers of the jury. s. Supreme
Court, Al Law Ed 1919: 1ss Z. s.
4GS.
Inferentially a state whose constitu-
ton does not preclude the institution
of such a law could make statutory
provision similar to section $40 of our
penal code, but according to the above
supreme court decision neither the
national congress nor the territories
may provide for a verdict to be rem
dered by less than the entire jury.
unanimity being the salient considera-
ton of the higher courts decision.
Locals Express Opinions.
The above was held by many OF
iBsbeeis best lawyers to be conclu
sive. but further research in the
leather bound depositaries of legal
lore show the quoted U. S. supreme
court decision to be inapplicable 10
the territorial statute that has caused
all the pother. Maintaining a gamh-
ling house, wherewith Frank Schmidt
is charged, is not one of the cases
cognizable at common law In she
days of the common laws supremacy
gaming was the only offense of that
nature, the more complicated method
of gambling Of these days not yet hav-
ing been evolved. N those far away
days no person kept 2 gambling house.
nor did anyone deal, but the gay
blades all foregathered and rolled the
bones or riffled the pasteboards COM
munisticalIy.
offense is Modern.
The common law offense was gam
ing, the mere engaging of anyone in
a game Of chance. Therefore when
the dealer and the gambling house ar.
rived they must needs be cared for
by statutory provision. So maintain
ing gambling mouse is an offense aor
cognizable at common law, and the
provision providing for a verdict BY