People ex rel. Clifton v. De Bragga,

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| N.Y. App. Div. | Jul 1, 1902

Per Curiam :

This is a habeas corpus proceeding instituted to test the sufficiency of an information charging the relator with a violation of section *580351 of the Penal Code relating to poolselling, bookmaking, etc. The contention of the appellant is twofold : (1) That he is not liable to be punished under section 351 of the Penal Code for the acts which he is charged to have committed, but is subject only to be sued for a penalty in a civil action at the instance of the complainant or the maker of the bet of which he was stakeholder as prescribed by the Revised Statutes (1 R. S. 662, §§ 8, 9), and (2) that section 351 of the Penal Code is in conflict with the Federal Constitution (14th am end t. § 1) and the Constitution of the State of New York (Art. 1, §§ 1, 6; art. 3, § 18).

As to the first proposition it is enough to say that it is opposed to the recent determination of the Appellate Division of the first department in the case of People v. Levoy (72 A.D. 55" court="N.Y. App. Div." date_filed="1902-07-01" href="https://app.midpage.ai/document/people-v-levoy-5191533?utm_source=webapp" opinion_id="5191533">72 App. Div. 55).

The second proposition is based upon reading section 351 of the Penal Code in connection with section 17 of chapter 570 of the Laws of 1895, which prescribes an exclusive penalty of the forfeiture of the amount of the bet when made or recorded upon a race course. It was held by the Court of Appeals in the case of People ex rel. Sturgis v. Fallon (152 N.Y. 1" court="NY" date_filed="1897-03-02" href="https://app.midpage.ai/document/people-ex-rel-sturgis-v--fallon-3594376?utm_source=webapp" opinion_id="3594376">152 N. Y. 1) that the section cited from the act of 1895 was constitutional and valid. We think that the decision of the Court of Appeals in that case necessarily implies that section 351 of the Penal Code is also constitutional. (See last paragraph of the opinion of Martin, J., 152 N. Y. on p. 12.)

The order appealed from should be affirmed.

All concurred.

Order affirmed.