Image provided by: University of Oregon Libraries; Eugene, OR
About The Sunday Oregonian. (Portland, Ore.) 1881-current | View Entire Issue (Dec. 18, 1904)
16 THE SUNDAY OREGONIAN, PORTLAND, DECEMBER 18, 1904. MUST' STAND TRIAL Nease's Demurer to Indictment Is Overruled. JUDGE GEORGE DECIDES CASE Indictment Charging Nease Under Nuisance Act With Conducting Poolroom Is Sustained in an Exhaustive Decision. . The rapMly growing prevalence of the new form of race-horse handbook gam bling, not merely at race tracks, but oven thousands of mllos distant, and la the very center of business and popu lation, and at the very doorsteps of the people of this Nation generally, and the mauMeaance of ouch public houses. In the nature of clearance-houses for gam ing. If resulting as the Indictment charges, is certainly much more a dis turbs ace of tho public peace than any mere sending of challenges, or going' armed, to the alarm of the public, or other acts of a similar character, whlcn repeatedly have beon held by the author ities as constituting breach of the public peace or welfare. The above decision was rendered by Judge George yesterday in overruling the demurrer to the indictment against M. G. Nease for soiling pools on horse races, drawn on section 1950 of the code, which providos for the punishment of any per son who shall wilfully and wrongfully commit any act which ... grossly dis turbs the public peace, ... or which openly outrages the public decency, or is Injurious to public morals. The court held the indictment valid, and Xoase must now stand trial, or al-I-w a judgment of conviction to be en tered against him, and appeal to the Su premo Court for a final decision as to the interpretation of the law, that is, whether it can be made to apply to poolselllng or not. Nease operated under a city license, tho Council having passed an ordinances licensing poolselllng. Sheriff Word, asserting that poolselllng is contrary to the state law, took pos possion of the Warwick Club on Fourth street, where Nease was doing business, and still has a deputy in charge. Tester day Sheriff Word said he will retain pos session until the case Is ended. The spocittc charge against the defend ant is that he did "for gain habitually sell pools upon horse races and habitually i-ocure idle and evil-disposed persons to rome to his house to buy pools and to bet upon horse races, to the common ruisance and annoyance of all good citi zen?." This Is euqivalent not only . to charging the defendant with keeping a gaming-house under the authorities, but rharges also resultant effects to the pub lic peace of the acts. For the defense Judjro Watson and John M. Gearin ap peared, while Henry E. McGinn ap peared as amicus curiae and presented tho legal argument on behalf of the state. Discussing the case in his decision. Judge George said: Generally criminal statutes mention cer tain specific acta, stating them particularly, s constituting a crime, when willfully com mitted, and also give the crime a name. This statute Is an exception. It merely un dertakes to provide that any act ovhlch grossly disturbs the public peace or which openly outrages the public decency and Is injurious to public morala, is a crime, leav ing the particular acts to be described by The indictment, defined by the court and found by a Jury, and also this statute does not give any name to the crime. In these respects it differs from criminal statutes generally. To constitute a crime there must be some overt act or overt resulting act. and there may be various ways and manners In which such overt act. or acts, may be committed. The overt act alleged in this indictment, as the Court reads it. Is in effect that the de fendant has maintained a public gaming house to the common nuisance and annoy ance of all good citizens, or. as the lndlct xnet puts it. the defendant fcr gain habitu ally sells pools upon horseraces and habitu ally procures idle and evil-disposed persons to come to his house to buy pools and to bt upon horseraces, to the common nuisance end annoyance of all good citizens. The question before the court now on de murrer Is simply whether any person who for gain habitually sells pools upon horse races, and for gain habitually procures idle and evil-disposed persons to come to his house to buy pools and to bet on horse races to the common nuisance and annoy ance of all good citizens, is committing an act. or acts, either grossly disturbing the public peace or openly outraging public decency and injurious to public morals. If each is the fact and so found' to be by the jury on the trial, this Court thinks it con stitutes a crime in this state, under section 1030. and is punishable as such. This Court, as a Question of law, so holds. Whether tuch are the facts must be a Question to be left to the Jury on the trial to determine. As defendant in his argument and brief has conceded, it is well settled that where a statute employs words as descriptive of of fenses that had a settled meaning at com mon law. they will be accorded the same meaning in the statute; quoting both End llch and Sutherland on Statutory Construc tion. It is also a correct principle, that In tho construction of statutes, courts will be aided, so far as is applicable, by the courses, tendencies and principles of the common law and common-law decisions. Common gaming houses were at common law indictable as a nuisance, not so much becauso of any particular description of crime committed within their walls, but even "because they are temptation to Idle ness and becauso they are apt to draw to gether great numbers of disorderly persons." And in this indictment it is alleged that such has occurred the "actual disturbance" which defendant contends section 1830 means. It is conceded also that the act charged in the indictment was an indictable nuisance at common law. Gaming houses were in dictable, not only when "actual disturb ances" occurred, but also when "actual dis turbances" did not really occur, simply be cause of the inherent tendency, in them selves, of gaming houses to so operate. This lndictmont does not stop with any mere nat tiral tendency of such houses to produce dis order, but goes on and alleges that idle and cvll-disposed persons habitually came to the house at defendant's procurement and bought pools ana maao bets on horseraces, and all to the common nuisance and annoyance of all good citizens, and if a jury should find mch alleged "actual disturbances" and "dis orderly" conduct occurred in fact, then in iaw it was an act grossly disturbing the public peace, under a long line of decisions and authorities. No matter how quiet and orderly a gaming house was. it was still a public and indictable nuisance at common jaw, and oven its evil tendencies alone were enough to establish Its status. It is claimed that in this indictment no actual disturbance of the public peace is charged, but can this indeed be true? The Indictment plainly charges the defendant with maintaining a common gaming house. which act constituted a disorderly act at common law. and it goes on and charges what, if so found, is tantamount in law to actual disorder resulting. It is expressly conceded by the doicndant, both In argument and in briofs. that this indictment charges an indictable nuisance at common law. It Is also erprcssly conceded that maintaining a earning hous is an indictable nulsanca at rammmi In it- not Vti9iisa nf anv actually commiaed offense of inciting actual dlsturb- outc 01 uic peace aa luuhuiiuui, . Immorality nr i-rtm hnt wimTlIv because Of the inherent tendency of such places to lead to these results, and such evil tendency even made it an indictable nuisance, per se. No actual disturbances or other bad results were really necessary. Such being conceded, it is not coin ir much further to hold that if act ual disturbance, according to common law meaning, is alleged, a crime nas oeen charged. This much of the common law on the subject of public nuisance, this Court holds, as set forth in the indictment, is Included by our statute, section 1930, in both its let ter nndlm icnlrlt- Th courts of this state though no common-law crimes are here pun ishable unless made so by statute in con struing our statutes are not unmindful of the changing forms, but not of substance, of gaming and gaming houses, and of the rap idly growing prevalence of the new form of racehorse handbook, gambling not merely at racetracks, but even thousands of miles distant, and In the very center of business and popultalon, and at the very doorsteps of the homes of the people of this Nation gen erally. The maintenance of such public bouses, in the nature of clearance houses for gaming, if resulting as the lndictmont charges. Is certainly much more a disturb ance of the public peace than any mere send ing of challenges, or of going armed to the alarm of the public, or other acta of a sim ilar character, which repeatedly have been so held by the authorities as constitutes a breach or disturbance of the public peace and welfare. SAYS SHE ANNOYED HIM. Harry Howard Accuses His Wife in Suit for Divorce. "Soon after we came to Portland," says Harry Howard, In answer to the. suit of his wife, Myrtle Howard, for a divorce, "my wife Degan a systematic method of annoyance by telling me of her escapades with other men. She would leave home for hours at a time, and on returning would inform me what a fine time she had been having. She answered telephone calls, and said they were from young fel lows, old friends of hers, who lived up the Valley." Once, he alleges, she said: "If I am compelled to stay ut home, you will have no peace while I am here," and struck a newspaper out of his hand. On November 3, HKH, she packed her trunk for the purpose of leaving him. and struck him In the face, and snatched the picture of his mother and threw it upon the stove. When he was sick, she refused to wait upon him, and remained out of the house until late at night, and when she came home told him' she had been out with a swell young man, drinking beer and whisky and eating sausages. KERN GETS DAMAGES. Jury Awards Him $5000 for Brutal Assault. Tn the suit of John Kern against George Milger. A. Baum, Jacob Hartung, Philip Schmidt and George Wolf the jury, in Judge Sear's Court, yesterday afternoon returned a verdict in favor of Kern for $5000 damages. Kern was assaulted by the defendants in August last, and his skull was smashed in by a rock In the hands of Milger, and the others beat him with their fists. Mil ger was recently convicted on a charge of assault with a dangerous weapon for the part he took In the affair. John F. Logan and Robert Galloway, attorneys. conducted the case for Kern. Looking Into Arson Case. The charge of arson against A. B. Coon, the specific form of which Is that he hired persons to set fire to a lodging-house at Fifth and Madison streets, was the sub ject of Inquiry by the grand Jury yester day. Mrs. Fouchet was a witness before the grand jury. She states that Coon of fered her $50 to do the deed, and she re fused, telling him she did not want to go to the penitentiary. Coon once lived at Dillon, Mont, and he owns a saloon at West Park and Burnslde streets. Jury Unable to Agree. The jury in the M. A. Ward adultery case were unable to agree and were dis charged by Judge Cleland at 7:45 o'clock last evening. The jury retired for delib eration about 11 o'clock. WELL GIVE A PAIR. Congregation Ahavai Sholom to Raise Mortgage on Property. Congregation Ahavai Sholom will give a fair about March 15. The purpose Is to raise enough money to pay off the $6000 mortgage on its property. It is Intended to make this the largest, most attractive and in every way the most beautiful of its kind ever given in this city. The ut most enthusiasm prevails among its mem bers. Many unique and original plans are presented. The committee of ten appoint ed met last night and arranged for an additional committee of ten, the present arrangement including work that cannot possibly be performed by ten people. No expense will be spared to make the fair a success in every way. Though given by Congregation Ahavai Sholom, the fair will be participated In by other congregations. FOE THE XMAS TRADE. Tailor-Made for Men. There are always a lot of men who. want a good tailor-made overcoat for Christmas, and they put It off until the last moment and then we tailors' don't have enough of time to make them a coat, so they have to go and get a ready-made cheap coat. Anticipating these fellows, we have had our tailor make up a few elegant over coats ready to wear and you can get them ready to put on. This is forethought in deed, but we don't want to miss you. We want your trade. These overcoats are $12.50 to $18.50. Easy terms. $1 per week. THE J. M. ACHESON CO., Merchant Tailors, Fifth and Alder Sts. LADIES' COATS. Our great manufacturers' sale Is still on for this week. Don't miss it. We make all our garments. They are ready to wear. You get easy payments If you want them, $1 per week. Any one and every one can have elegant, comfortable, warm Christmas garments. Just the things for presents. This Is a great chance for you. We have the tailors to make them fit you if there should be any fitting to do. Tourist coats, rain coats, the best coat on earth, will be offered this week at $10 a fine Xmas present. Ladies suits splendid genuine tailor cloth; ladles' skirts, also tailor cloth. This week we will make skirts to order; tailor cloth, $5.S5. These are $10 and $12 garments. This is done to keep our factory busy, as we are through making Fall and Winter stock. Come along and encourage the only man ufacturing establishment of the kind that Is in Portland, and we give you such easy terms $1 per week. THE J. M. ACHESON CO., Fifth and Alder. Makers of Ladies' Garments ready to wear or to order. A BOY'S CHRISTMAS. Make it last the entire year by getting him a membership In the boys depart ment of the Y. if. C. A. Then he can enjoy the game and reading-room, gym nasium and swimming pool for 12 months. Annual tickets, $4, $5. $6, $7. STOP THINKING About your wife's Christmas gift, as she is sure to be pleased with one of our tailor gowns. E. GURNEY, Ladles' Tailor, Mohawk Bldg. 66 ERUPTION SALE, KINDS SATURDAY NIGHT ft .f? pj sjpjr COmiCHTtm PRICES SMASHED TO PIECES Men's Overcoats Men's Suits Worth$12.50 and $15.00 put into this sale at . . . 1 MOY ERUPTION PRICES ON MEN'S AND BOYS' UNDERWEAR ALL THIS WEEK TOYS GIVEN AWAY WITH BOYS' SUITS AND OVERCOATS WHEN YOU SEE IT IN OUR AD IT'S SO ER CLOTHING CO J! t tJI'JSI REFORMERS MEET TODAY MASSMEETING WILL BE HELD AT MARQUAM THEATER. Prominent Business Men and Clergy men Will Speak on Question Concerning City's Welfare. Jacob Rlis did not visit Portland in vain. " He stirred up the reform move ment which takes action this afternoon in the Marquam Grand Theater at 3 o'clock. A few enthusiasts sat in his audience the other evening and, gather ing together afterward, decided that this city needed reform. They say they no sooner mentioned the notion but It was taken up generally. For this afternoon they have secured a number of prominent men who will speak on the various re forms needed in the city. This meet ing Is not carried on under the auspices of the Municipal League, .but has received the patronage of that august organization. This afternoon's programme will be: "The Value to a Community of Official!) "Who Do Their Duty," Rabbi Stephen S. Wise. "Eliminate Politics From Municipal Affairs." Richard W. Montague. Representing business interests, Samuel Connell. Representing commercial travelers, W. C. GIbspn. Representing banking Interests, Robert Livingstone. Representing the Catholic Church, Father Thompson. Other speakers: Dr. A, A. Morrison. Dr. R P. Hill, Jf. J. Blagen, chairman. There has been boiling beneath the calm of the city, say thoso who arc ar ranging the meeting, a strong desire for reform. The recent unearthing of scan dals in the 'City Hall has set the people agog. So the few men who set the move ment on its legs have looked with aston ishment at the rate It has run and have had unexpected sympathy extended them. They had np trouble getting together speakers and an even larger leading body of citizens to sit on tho stage of the theater and lend their " approval to the meeting. There will also be on the stage a number of prominent ministers and many men who represent tho solid busi ness Interests of the city. It Is evidently expected that the church-going portion of the population will go to the meeting, for there are to be no afternoon services in the churches and the regular Sunday service in the Y. M. C. A. will be omitted. Men and women will be welcomed at the meeting. Christmas Gifts at January Sale Prices A Choice Stock of Novelties, Easy Rockers. Etc, and Every Article Reduced Regular Price $8.50 Sale Price $5.25 In Oak or Ma- t hoqany. "A ! Real Beauty" Above Is a Sample of Reductions as They Are AH Through the Store 7 0 tT&. Opposite "The Oregonian" 130 SIXTH STREET mauraiES aot answees. Inquiries are often heard on the streets, where is the best place to purchase gas and electric chandeliers, show-window and storeroom lighting apparatus, gas table lamps and glassware. The answer is al ways the M. J. Walsh Co. They are very much up to date in their line, prices and workmanship. They-aljo carry a beauti ful selection of andirons, flresets, fenders and screens. In wrought Iron and old brass, any of which will make a handsome Christmas gift Their showroom Is at 343 Washington street,, corner Seventh. PICTTJEE-FUAME HOLDING, We have Just received tho finest line of picture frame molding ever brought to this city; also a large lino of ovals In gold, ebony and gold, brown and gold. Better 'values not in tho market. Open evenings. Sanborn, Vail & Co., 170 First street. "Do you ride on free railroad passes?" shouted a man in the audience to the candi date making a speech. "You bet I do. It's anything to beat the railroads with me." Detroit Free Press. MURINE BYE REMEDY. A home cure for Eye troubles. Never fails to win friends. Used for Infant and adult. Murine don't smart. Soothes Eye-pain. Rich and Beautiful CHRISTMAS PRESENT One that will last a thousand years AN ORIENTAL RUG Is always appreciated. It never wears out that is, one will last a thousand years. We have the largest variety in Portland our own importations at prices lower than those of any other dealers on the Coast or west of New York. We carry the largest stock of Oriental goods on the Coast, consisting of ORIENTAL HUGS, TURKISH EM BROIDERIES, OLUNY LAOES, SILK SHAWLS AND ANTIQUE BRASS WARE. And if readers of this advertisement will step into our store at 411 "Washington Street, they will be shown a display of Oriental goods richer than anything they have yet seen in this region. A. ATIYEH & BRO., IMPORTERS 411 Washington Street, Between Tenth and Eleventh Streets. PICTTJREJFEAMES. An Immense variety of moldings for framing pictures to order, also ready made frames, all new shapes and finishes. Open evenings. Sanborn. Vail & Co., 170 First St. between Morrison and Yamhill. The Denver t Rio Grande scenery Is even more beautiful la Winter than Sum mer. Travel East via that line and spend a day In Salt Lake City- PIANOS Special sale this week, includ ing the famous "Decker, fifty years before the public; over 50, 000 in use. Factory prices. Will make present of the freight if you buy this week. "CecIIIaD" Self-playing Pianos E. U. Wi!rsMusic House 350 Alder Street A CHRISTMAS SUGGESTION You have doubtless been wondering: what to get for Christmas. Why not have the silverware, knives, forks, spoons and hollow-ware replated so that they will look and be as serviceable as new? Or no doubt the gas and electric fix tures are tarnished and need polishing; perhaps the finish is wearing off your brass bed; if It is we are prepared to reflnlsh it. Our specialty is making: old or worn articles as good as new and at a reasonable price. Oregon Plating Works Katnbllabed 1890. 401 Waabtagrton St, Itartlaad, Oregon. W. A. Durham, Mgr. Phone Main 2575. If Reasonable Reductions combined with first-class workmanship and honest business methods appeal to you, we intend making this communication the Entering Wedge to our future business re lations with you. A backward season has made it incumbent upon us to un load at almost any cost. Never before has our stock been so complete at this time of year, and never before have we been able to offer such handsome inducements to buy. Full dress and tuxedo suits a specialty Garments to order in a day if required Satisfaction guaranteed in all cases Samples mailed; garments expressed 108 Third Street rAWT JAAKKY, DOCTOB or despair UUn I "Uon't do a thins" till you seo clearly what's belt by aid of Jrla&ailghts on lltunaa Nature, on heaittt. disease, love, marriage and parentage. Tells what you'd aak a doctor, but don't Uko to. 210 pages, illustrated, 23 cents; but to Intro duce It wa send ona only to any adult for postage, 10 cents. IIILX, CUB. CO., 12a J&ut XSUi street. Jiaw York. WEAK MEN MADE STRONG HP Manhood" sent free. By our electric vacuun treatment. Cures at weaknesses of men. nervous debility, less o: memory, varicocele, eta Our book on "Perfect Saftv Annlhm. fVv Dept. A. 1411 1st ave., Seattle Wash,