39 N.Y.S. 865 | N.Y. App. Div. | 1896
The relator was arrested upon three separate charges: The first of the violation of section 323 of the- Penal Code;. the second of the violation of section 351, and the third of the violation of section 352 of the same law. Upon being arraigned before the magistrate upon the charges against him, he Waived examination and was committed to the city prison to await the action of the grand jury upon the presentment for the crime of which he was accused. He then sued out this writ of habeas corpus, claiming that upon the facts as they existed and as they are conceded to be in the case, he was not guilty of any crime. Upon the return of the writ of habeas corpus a writ of certiorari was granted, and all the papers upon which the warrants against the relator had been issued were returned to the Court of Oyer and Terminer by the committing magistrate, and thereupon, after a hearing, the relator was discharged. From the order discharging him this appeal is taken.
The facts which are alleged to constitute the crime by virtue of which the relator was arrested are not in - dispute. They are, substantially, that the relator and others are officers of an association called the Westchester Racing Association, which it is conceded is organized pursuant to the provisions of chapter 570 of the Laws of 1895. It is stated in the information and the accompanying affidavits that these officials had announced -their intention and that of the association to hold a public race meeting at which certain races were to take place. In one of these, known ,as the Withers’ Stakes, the owners of all horses of a certain-.age were permitted to competé for a-purse of $3,500 to be furnished by the association,
If by the first warrant, which accuses the relator of a violation of section 323 of the Penal Code, it was intended to charge that by taking part in establishing this race, he" was guilty of Contriving or assisting in contriving a lottery Within section 323 of the. Penal! Code and subsequent sections, that contention clearly cannot be maintained. A lottery is defined by the Penal Cede to bé a scheme for the distribution of property by chance among persons who" have paid or agreed to pay a valuable compensation for the chance. The essential quality of a lottery is that the distribution of the prize shall depend entirely upon chance, and that so far as possible, if the lottery is honestly conducted, no other element whatever shall "enter into it. There certainly is a wide distinction between the wager of money Upon the result of any game "and the purchase of shares in a lottery. To a certain extent it may be said that what is called chance enters into the result of any game, even the game of chess, and that nothing which is the result of a Contest or competition is
When the Revised Statutes were adopted all these laws were rearranged, $nd the statute against betting and gaming was put by itself; that against lotteries was entirely a different statute, and following that was an article regulating the racing of animals; só that it was quite clear that at that time the lawmakers did not regard the crimes as identical, but understood that they were different crimes, and required different definitions and treatment. The same state of affairs is to be found in the Penal Code, which recognizes the distinction which has always existed between bets and wagers upon any game of skill or chance and the establishing of lotteries or the selling of lottery tickets. It' is quite clear that the lawmakers have always had in mind the distinction between lotteries and running horses for stakes. This distinction has been established by the courts. (Reilly v. Gray, 77 Hun, 402.) We do not mean to say that it may not be practicable to so plan a device to distribute money
Neither is he guilty of poolselling or bookmaking within section 351 of the Penal Code. • The only thing of which he can be guilty under the facts is aiding and abetting racing of horses for a stake or. wager or reward, as forbidden by sections 351 and 352 of that law.
The People claim that the acts, which it is conceded that he did, constitute a violation of section 352 of the Penal Code,'^ecáuse they say that he aided in racing horses for a bet, stake or reward. This the defendant concedes. But he says that he is relieved from any criminal penalty under that section, because the thing he did was expressly allowed by special law, to wit, chapter 570 of the Laws of 1895. To this the People reply, that that portion of chapter 570 of the Laws of 1895, so far as it permits the running of horses for k premium or prize, is within the prohibition- of section 9 of article 1 of the Constitution, and, therefore, being void on that account, it is no protection to the relator It will be seen, therefore, that the sole question presented is whether that portion of the law of 1895, which permits, upon the tracks of. the racing organizations organized pursuant to it, the running of horses for a purse, prize or premium contributed by the association, is obnoxious to the section of the Constitution above mentioned. That section prescribed that no lottery, poolselling, bookmaking or any other kind of gambling shall hereafter be authorized or allowed within this State, and the question to be decided is. whether the act which has been done by the defendant comes within the prohibited acts.
The law of 1895 clearly legalizes the running of horses for purses which -are contributed by. the association upon whose tracks the race is,to take place, but which are not contributed by the .persons who participate in the race. If that is gambling then the law is obnoxious to the provisions, of the Constitution and cannot be sustained and it ;does not protect the relator: The convention in -framing the Constitution, and the people in adopting it, must be assumed -to have
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.
For many years the law had forbidden bets and wagers upon horse races, as well as racing for a reward, but it is to be noticed . that each of those laws since 1830 has contained a provision excepting such racing as was allowed by special statute, and wherever such an exception was inserted in the law, racing for a reward, or premium had been held to be valid and not to be gambling. The evil at which the makers of the Constitution intended to strike was well known. So far as it existed at the time the Constitution was adopted, it especially consisted in what was known as poolselling and bookmaking, and the prohibition against any other kind of gambling'was inserted, not for the purpose of including acts which had not been understood to be gambling, but for the purpose of precluding any change in the manner of doing the particular acts which were within the objection, so that it could be said that they were not within the prohibition of the Constitution.
But it is quite clear, however broad may have been the words of the Constitution, that the Legislature did not intend by the use of the word gambling, to bring anything within the meaning of that word which was not gambling before the Constitution was adopted. At the time of the adoption of the Constitution, and for many years before, it had been held that the racing of horses for purses, prizes or premiums which were not contributed by the owners or drivers of the horses, was not a race for a bet or stake, so that it was illegal under the prohibition of the Revised Statutes. (1 R. S. 672, § 55;
A prize or premium is ordinarily something offered by a person for the doing of something by others in a contest in which he himself does not enter. He has not a chance of gaining the thing offered, and if he abides by his offer he must lose it and give it to some one of those who contest for it. In a wager or bet there must be two parties and it is known before the happening of the event that one of them must lose or win. In the giving of a premium there is but one party who can lose, and those who enter into the contest cannot by any possibility lose, although one of them may win. A premium is a reward or recompense for some act which is done. A wager is a stake upon a certain event. The distinction between them is clear, and it has been adopted so far as we can discover in every case in which the question has been raised in this country. (Alvord v. Smith, 63 Ind. 58; Porter v. Day, 71 Wis. 296; Delier v. Plymouth Co. Agr. Soc., 57 Iowa, 481. See, also, Costello v. Curtis, 13 Wkly. Dig. 20.) No one would dream that the offering of a premium upon the result of a rowing match or for a contest in oratory was gambling within the plain meaning of the words as they had been understood before the passage of the constitutional amendments. Neither was it ever suggested that the numerous prizes which are offered for excellence in draft horses or saddle horses, or for one who turns the best furrow, are obnoxious to the prohibition of the Constitution, and yet these offers stand upon precisely the same footing and are within the same principle as the offer of the premium or prize to be competed for by the racing of animals, The fact that the owner of each horse who proposes to compete in the race is required to pay an entrance fee does not
At the time of the adoption of this amendment the law was settled as we have seen, and the thing which the defendant is accused of doing, and which he did do, had been determined not to be gambling and obnoxious to the statutes which then existed upon that subject. Nothing has since occurred to extend the meaning of the term as then used. No extension of the- meaning is necessary to meet and overcome the evil which the Constitution makers and the people had in mind in the adoption of this amendment.
We are not inclined to limit unduly the meaning of this provision of the Constitution, which we regard as highly beneficial, and which was undoubtedly greatly needed. Neither ought we to do so; but in construing it we must adopt the meaning of terms as they had been understood to exist, and should give to the words used in it their ordinary and usual significance, no more and no less. Thus construing these words, we are quite clear that they do not forbid the act of which the relator here was accused, and that so much of chapter 570 of the Laws of 1895 as gives to corporations organized under section 3 the right to have race meetings, and to contribute purses, prizes or premiums to be contested for at those races by the owners of horses, is constitutional. As the acts of the relator are authorized by this law, he is protected by it, and he was not guilty of any violation of section 352 of the Penal Code, because that statute expressly excludes from its prohibition racing for a reward when it is allowed by special act.
Therefore, the order discharging the relator was not erroneous, and must be affirmed.
Van Brunt, P. J., Barrett and O’Brien, JJ., concurred.
Order affirmed, with costs.