113 N.Y.S. 188 | N.Y. App. Div. | 1908
The relator was arrested upon a warrant issued by a city magistrate, in the second division in the city of New York, charged with having violated the provisions of section 351 of the Penal Code, as amended by chapter 507 of the Laws of 1908. The sworn information upon which the warrant was issued set up that on the 16th. of June, 1908, at the race course of the Brooklyn -Jockey Club at Gravesend, borough of Brooklyn, county of Kings, a race course authorized by statute, relator made an oral bet of five dollars witli one Ball; that said Ball bet that “ Bostrum,” a horse entered in a race to be then and there run, would win, and relator accepted said bet; that the race was run and Bostrum lost; that Ball, while standing upon the lawn of said race course, and after said race had-been decided, handed to the relator the sum of five dollars, who thereupon received the same. On being arraigned the rolator moved to dismiss the-proceeding on the ground that the information did not set forth facts sufficient to constitute the commission of a crime. The motion was denied and relator held for trial.
The question presented is whether the receiving of a sum of money in payment of an oral bet, made between two individuals upon a race track upon the result of a race then and there to be run, constitutes a crime. The statute invoked by the learned district attorney is section 351 of the Penal Code, as amended by chapter 507 of the Laws of 1908. That section provides as follows:
“ § 351. Pool-selling, book-making, bets and wagers, et cetera.— Any person who engages in pool-selling or book-making at any time or place; or any person who keeps or occupies any room, shed, tenement, tent, booth, or building, float or vessel, or any part thereof, or who occupies any place or stand of any kind, upon any public or private grounds within this State, with books, papers, apparatus or paraphernalia, for the purpose of recording or registering bets or wagers, or of selling pools, and any person who records or registers bets or wagers, or sells pools upon the result of any trial or contest of skill, speed or power of endurance, of man or beast, or upon the result of any political nomination, appointment or election ; or upon the result of any lot, chance, casualty, unknown or contingent event whatsoever; or any person who receives, registers, ■ records or forwards, or purports or pretends to receive, register, record or forward, in any manner whatsoever, any money, thing or consideration of value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person, or sells pools, upon any such result; or any person who, being the owner, lessee, or occupant of any room, shed, tenement, tent, booth or building, float or vessel, or part thereof, or of any grounds within this State, knowingly permits the same to be used or occupied for any of these purposes, or therein keeps, exhibits or employs any device or appaiatus for the purpose of recording or registering such bets or wagers, or the selling of such pools, or becomes the custodian or depositary for gain, hire or reward, of any money, property or thing of value, staked, wagered or pledged, or to be wagered or pledged upon any such result; or any person who aids, assists or abets in any manner in any of the said acts, which are hereby forbidden, is guilty of a misdemeanor, and upon conviction is punish*602 able by imprisonment in ■& penitentiary or county jail for a period of not more than one year.”
The learned district attorney makes his claim under that clause of the section which reads, “any person who receives, registers, records or forwards, or purports or pretends to receive, register, record or forward, in any manner whatsoever, any money, thing or consideration of. value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person,” and asserts that the facts did state a crime for the .reason that they showed that the relator, Collins, did “ receive * * * money * * * bet .and wagered * *. by and for another person (to wit, Rall) upon the result of a horse race.”
Prior to -the last Constitutional Convention of the State the Constitution of 1846 provided in article 1, section 10, as follows: “ No law shall be passed abridging the right of the people peaceably to assemble and to petition the government, or any department thereof; nor shall any divorce be granted otherwise than by due judicial proceedings.; nor shall any lottery hereafter be authorized or .any sale of lottery tickets allowed within this State,” The Bevised Constitution adopted in 1894, and which went into effect the 1st day of January, 1895, provided in article 1,, section 9, as follows: “No law shall be passed abridging the right of the people peaceably" to assemble and- to petition the government, or any department thereof; nor shall any divorce be granted otherwise than by due judicial proceedings; nor shall any lottery or the sale of lottery tickets, pool-selling, book-making, or any other kind of gambling' hereafter be authorized or allowed within this State; and the Legislature shall- pass appropriate laws to prevent offenses against any of the provisions of this section.”
At the time of the adoption of this Constitution all betting and gambling was illegal, except in the case of betting on race courses hereafter considered. The Bevised Statutes (Pt. 1, chap. 20, tit. 8) provided as follows: Section 8. “All wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful. All contracts for or on. account of any money or property, or thing in action so wagered, bet or staked, shall be void. Section 9.- “ Any person who shall pay, deliver or deposit any money,
In Ruckman v. Pitcher (1 N. Y. 392), in an action to recover from a stakeholder the amount of a bet which, at the request of the loser, the plaintiff, he had paid over to the winner, the Court of Appeals, in holding the action well brought, alluding to the statute against betting and gaming, said: “ The evident intention of the Legislature was to discourage and repress gaming in all its forms, including bets and every species of wager contracts of hazard, as a great public mischief, calling for effective measures of prevention and remedy. * * * The Revised Statutes which went. into operation in 1830 fully supplied the deficiency, and indeed have gone the whole length of prohibiting all wagers, bets and stakes upon any contingent or unknown event, with the exception only of contracts of insurance, and upon bottomry and respondentia, and have enabled the loser to recover the money wagered and lost, not only of the- winner, but also of the stakeholder, notwithstanding that he may, after the loss of the bet, have' paid the same over to the winner. It was manifestly the intention of the Legislature to
That case was cited and followed in Storey v. Brennan (15 N. Y. 524). In Meech v. Stoner (19 N. Y. 26) the court held that 'the right of action given by the statute for money lost in gaming was assignable and not a mere personal privilege of the loser.
The Penal Code dealt with various forms of betting and gambling. While, as pointed out, all were illegal, some were punished as misdemeanors and for some offenses a civil action was given to the bettor or player or to the overseers of the poor to recover the amount lost or won, or in treble or five times that amount.
The Penal Code
Section 337 provided that any person who knowingly violated the foregoing section was guilty of a misdemeanor. Section 339 provided that “ a person who, by any fraud, or false pretense whatsoever, while playing at any game, or while having a share in any wager played for, or while betting on the sides or hands of such as play, wins or acquires to himself, or to any other, a sum of money or other valuable thing, is guilty of a misdemeanor.”
Section 340 provided that “A person who exacts or receives from another directly or indirectly any money or other valuable thing by reason of the same having been won by playing at cards, faro or any other game of chance, or any bet or wager whatever upon the hands or sides of players, forfeits five times the value of the money * * *, to be recovered in a civil action by the persons charged with the support of the poor.” Section 341 provided that “ a person who wins or loses at play or by betting at any time the sum or value of twenty-five dollars or upwards, within the space of twenty-four hours, is punishable by a fine not less than five times the value or sum so lost or won, to be recovered in a civil action by the persons charged with the support of the poor.”
Section 343
By sections 345, 346 and 347, gambling "apparatus could be seized and destroyed. By section 348, persuading another to visit a gambling place, in consequence whereof such other person gambled therein, was made a misdemeanor, and in addition such person was liable to such other person in an amount equal -to the sum lost, to be recovered in a civil action. By section 265,
Chapter 178 of the Laws of 1877, entitled “ Am act in relation to ■ bets, wagers and pools,” provided as follows: “ Any person who shall keep any room or building, or any part or" portion of áriy room or building, or occupy any place upon public or private" grounds anywhere within the State, with apparatus, books or paraphernalia, for the purpose of recording- or registering bets or wagers, or of selling pools, and any person who shall record or" register, bets or wagers, or sell pools upon the result of any trial or contest of skill, speed or power'of endurance, of man or beast, or upon the result of any political nomination, appointment or election, or being the owner,, lessee or occupant of any such room, building or part or portion thereof, shall knowingly permit the same to. be used "or occupied
It being a felony to sell pools or make boobs elsewhere than at an authorized race track the pool room people thereupon devised a scheme by which they claimed to be merely forwarders of the money deposited by bettors with them. They pretended to receive the same as common carriers to send to the race tracks where it could be bet. This is clearly shown by the opinions in People v. Wynn (35 N. Y. St. Repr. 487), decided in December, 1890, affirmed on opinion below (128 N. Y. 599), and People v. Fisher (42 N. Y. St. Repr. 884), decided in December, 1891.
The next act was chapter 469 of the Laws of 1893 which amended chapter 479 of the Laws of 1887 so that section 7 thereof provided as follows: “ Any person who shall engage in pool selling or bookmaking at any time or place except as hereinbefore stated, or who outside of any race track or grounds on which racing is had, owned, leased or conducted by racing associations incorporated under the laws of the State of Hew York for the purpose of improving the breed of horses, shall occupy any room, shed, tenement, tent or building, or any part thereof, or shall occupy any place upon any public or private grounds within this State, with books,, apparatus or paraphernalia for the purpose.of recording or registering bets or wagers, or of selling pools, or who shall record or register bets or wagers or sell pools upon tlie result of any trial or contest of skill, speed or power of endurance of man or beast, or upon the result of any political nomination, appointment or election, or being the owner or lessee or occupant of any room, tent, tenement, shed, booth or
The clear intent and purpose of this statute was to reach thepoolsellers who were conducting their business, not upon the-tracks, but in pool rooms, and to put- an end to their pretense of" being common carriers, and so the word “ receives,” upon which the learned district attorney now" lays such stress" came into the-statutes, for this act not only made it a felony to record or register-bets or wagers and to sell pools, other than at a race track, but-made it likewise a felony to become the custodian or depositary for gain, hire or reward of any money staked, wagered or pledged, or-to be wagered or pledged, or to “ receive, register, record, forward or purport of pretend to forward t-o or for any race course
Thus, at the time of the convening of the Constitutional Convention of 1894, all gambling and betting was. illegal, except that the. law authorized and allowed poolselling and bookmaking upon certain tracks for certain days when the same acts committed elsewhere were felonies.
' It was under these circumstances that the constitutional provision was adopted “ nor shall any * * * pool-selling, book-making, or any other kind of gambling hereafter be authorized or allowed within this State.” This provision was not self-executing, but the first Legislature thereafter convened passed the following statutes r.
By chapter 570 of the Laws of 1895, chapter 479 of the Laws of 1887 and chapter 469 of the Laws of 1893, cited supra, were-repealed. Section 17 of the act provided that “Any person who,, upon any race-course authorized by or entitled to the benefits of, this act, shall make or record, directly or indirectly, any bet or wager on the result of any trial or contest of speed or power of endurance of horses taking place upon such race-course, shall forfeit the value of any money or property so wagered, received or held by him, to be recovered in -a civil action by the person or persons with whom such wager is made, or by whom such money or property is deposited. This penalty is exclusive of all other penalties prescribed by law for the acts in this section specified, except in case of the exchange, delivery or transfer of a record, registry, memorandum, token, paper or document of any kind whatever as evidence of any such bet or wager, or the subscribing by name, nitials or otherwise, of any record, registry or memorandum in the' possession of another person of a bet or wager, intended to be retained by such other person or any other person as evidence of such bet or wager.”'
By chapter 571, section 343 of the Penal Code was amended by
The phraseology of section 351, as so amended, is quite clearly derived from section 7 of chapter 479 of the Laws of 1887, as amended by chapter 469 of the Laws of 1893. Section 351 was again amended by chapter 636 of the Laws of 1901, but the only change made was in the punishment imposed. The effect of these acts, read together, was to make the acts prohibited felonies when committed at any other place than an authorized .race track. The statutes did not authorize or allow such acts upon an authorized race track. They were still forbidden by law everywhere,, but the making or recording of a bet upon such race track, except in case of the exchange, delivery or transfer of a record, registry, memorandum, token, paper or document, as evidence of a bet or wager, or the subscribing by name, initials or otherwise, of any record, registry or memorandum in the possession of another person of a bet or wager, intended to be retained by such other person or any other person as evidence' of such bet or wager was not a crime. It was illegal, and the value of any money or property bet or wagered could be recovered in a civil action by the person or persons with whom such bet was made. That is to say, that provision of the Revised Statutes, namely, a civil action to recover, which the Court of Appeals had said in Ruckman v. Pitcher (supra) manifested the intention of the Legislature to suppress and prohibit every specie of wager and bet “ as one of the best and surest means of accomplishing that end,” was made the exclusive penalty for these illegal acts committed on race tracks.
The constitutionality of this legislation was upheld by the Court of Appeals in People ex. rd. Sturgis v. Fallon (152 N. Y. 1). The court said: “ It is not within the province of this court to declare that section seventeen is in contravention of the Constitution for the reason that it does not deem the provision adopted appropriate or sufficient to prevent such offenses. * '* * So'long as this legislation was in any degree. appropriate to carry into effect the purpose of the Constitution, it does not fall under its condemnation.”
By chapter 506 of the Laws of 1908, section 17 of chapter 570 of the Laws of 1895 was repealed, and, by chapter 507 of the Laws of 1908, section 351 of the Penal Code was amended so as to read as
In the extended examination which I have made of the statutes, the only provision which I have been able to find which makes an oral bet, unaccompanied by any memorandum, a crime is section 460 of the Penal Code, which provides that a person who bets, stakes or wagers money or other property upon the result of a prize fight is guilty of a misdemeanor. The effect of the legislation of 1908 was to put an end to the exclusive penalty of a civil recovery for the making or recording of a bet upon an authorized race track, and to make the laws applicable to gambling, betting, bookmaking and poolselling the same within as without the inclosure..
Betting is illegal everywhere, but it is not a crime unless so provided by positive enactment.
This court said in People ex rel. Lawrence v. Fallon (4 App. Div. 82): .“ It must be remembered that the Constitution did not establish any new rule in this State. All gambling and betting and wagering had been forbidden for many years by statute.. The only effect of the Constitution was to put it out of the power of the Legislature to authorize any kind of gambling by the repeal of the laws which had theretofore forbidden it.” The Court of Appeals said in People v. Stedeker (175 N. Y. 57): 9 While at common law wagers on indifferent subjects were legal and might be enforced, a gambling house or a resort for gamblers was a public nuisance for which its keeper might be indicted (Wharton Crim. Law, sec. 2446).
The legislative history of the sections of the Penal Code here invoked clearly establishes that the particular acts here , com plained
The statute is aimed at the stakeholder, the bookmaker and the poolseller. To construe the language in the manner contended for by the learned district attorney is to Avrencli words from' the context, to violate the grammatical construction of the sentence, and to ignore the historical development of the statute and the obvious intention of the Legislature in the various enactments of which it is the ultimate result..
It follows, therefore, that the order sustaining the writ of habeas corpus and discharging the prisoner was right and should be affirmed.
Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.
Order affirmed.
See Laws of 1881, chap, 676.— [Rep.
Amd. by Laws of 1889, chap. 428.— [Ref.
Amd. by Laws of 1883, chap. 358.— [Rep.
Amd. by Laws of 1893, chap. 292.— [Rep.
Repealed by Laws of 1886, chap. 593, § 1, subd. 52.— [Rep.
Sic.
See 5th ed.— [Rep.