History: Horses, gambling and a fine point of the law – Yahoo News

The first case that came before newly appointed Larimer County Judge John Washburn happened in 1864. Following a horse race in which the owner of some of the horses refused to surrender his animals after losing a bet, with his horses as the stake, the winner of the bet took him to court.

A jury was selected (all male; women were not appointed to juries until well into the 20th century). Following a lengthy discussion as to a point of law, namely, whether or not property could be legally acquired through gambling, the jurors rendered a verdict in favor of the new owner of the horses. The way the counsel wrangled over the technicalities of the law was a caution, says Ansel Watrous in his History of Larimer County.

Before arriving at a verdict, the jury was sequestered in a single room in the judges home, which was also his office. The sheriff was directed to keep the jury confined until they reached a verdict. The jurors deliberated for several hours but could not agree until about midnight, when they voted for the plaintiff, the new owner of the horses, and assessed him with costs incurred due to the deliberation.

Hearing the verdict, the judge said he could not agree with it, and he ordered the jury to continue deliberations. Told by the judge to keep them on bread and water until they agree (in other words, until they came to a verdict he would accept), the sheriff locked them in the front room of the house, whereupon the jurors entertained themselves whittling wood that was passed through a window to them by a friend. (Watrous notes that the judge was well supplied with kindling wood for quite some time after this incident.)

The friend also furnished them with cigars, which, says the account in the history, served a good purpose. The smoke from the cigars wafted upstairs to the judges bedroom, thick enough that he and his wife could not sleep. He came downstairs to tell them the smoke was keeping him and his wife awake.

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The jurors informed the judge that they could not agree on anything other than the verdict they had already arrived at, so he might as well let them go home.

The question before the court, whether or not property could be legally acquired through gambling, was not directly addressed as such in the verdict, but by accepting the jurors verdict, the judge also accepted the premise as lawful.

Does custom make law? The plaintiff argued that it does, whereas the defendant claimed that property acquired through gambling was illegally obtained. The statutes in place at the time declared gambling illegal.

Perhaps the only reason the judge accepted the jurors verdict was that he was very tired and wanted to get some sleep.

Contact history columnist Barbara Fleming at fcwriter395@gmail.com.

This article originally appeared on Fort Collins Coloradoan: History: A fine point of the law

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History: Horses, gambling and a fine point of the law - Yahoo News