39 N.Y.S. 860 | N.Y. App. Div. | 1896
In the month of Hovember, 1895, complaint was made to one of the city magistrates that the relator Sturgis was guilty of violating section 351 of the Penal Code, and thereupon, upon information having been laid before the magistrate, he issued a warrant for the arrest of Sturgis for the crime complained of. Sturgis was arraigned before the magistrate and an examination was had, as the result of which it was determined that there was probable cause to believe that he was guilty of violating section 351 of the Penal Code, and he was committed' to the city prison to await the action of the grand jury upon the charge madé‘ against him. He sued out this writ of habeas corpus, and upon the return to the writ the court issued a writ of certiorari directed to the city magistrate, who in his return transmitted to the court all the papers upon which the warrant of commitment was issued. The Court of Oyer and Terminer, upon consideration of all the papers, determined that there was no reasonable ground to believe that Sturgis was guilty of the crime of which he was accused,
The facts are that Sturgis was the clerk of one Jones, On the day in question, the twenty-fourth of October, lie went with Jones .to the Morris Park race track, which was a racecourse authorized by and entitled to the benefits of chapter 570 of the Laws of 1895, where there was about to take place a running, race which was held pursuant to section 3 of that statute. Sturgis following ■ Jones about the track, recorded in a book which he had for that purpose a number of bets which Jones had ,made with people whom he knew. This was the act of which he was accused, and this was the .act which the city magistrate held to constitute the crime.
The thing which Sturgis did, as we have seen, was to record bets or wagers upon certain horses which Jones had made. He did nothing else. It is quite clear to us that he cannot be said to have been guilty of' bookmaking. For can it be said that he occupied any place upon the grounds for the purpose of recording bets or wagers within the terms of section 351 of the Penal Oode. He walked .up and down, following his employer, who made the bets, and recorded them .as they were made. This is not the occupying of ' any place with books, papers and apparatus or paraphernalia for the purpose of registering bets or wagers within the provisions of that statute. The only thing he did, therefore, was to record or register bets. He made no bet himself. This act of his was punishable by section 351 of the Penal Oode in every case “ except when another penalty is provided by law.” Sturgis claimed that his case was within the exception, because by section 17 of chapter 570 of the Laws of 1895 an exclusive penalty had been provided by law for the registering or recording . of • any bet or wager on the result of any contest of speed of horses, and that, being within the provisions of that law, he was thereby relieved from the. penalty imposed by section 351 of the Penal Oode. ,■
The answer made by the People to this contention is that section 17 of chapter 570 of the Laws qf 189.5 is. unconstitutional, because . it violates section 9 of article 1 of the Constitution. That section, so far as it applies to this case, is as follows “For shall any lottery, or the salé of lottery tickets, pool-selling, bookmaking .or any other
If wo turn now to section 17 of chapter 570 of the Laws of 1895, we see that it provides that where one upon a racecourse entitled to the benefits of that-act, records a bet or wager upon a contest of speed of horses, he is to forfeit the value of any money or property so wagered, to be recovered in a civil action by the person with whom such wager is made. The act further provides that that pen-' alty is exclusive of all other penalties prescribed by law. •
If that act is effective, there is no question that, it relieves the relator from the penalty imposed by section 351 of the Penal Code for the act which he did; and takes it out of the list of crimes, and ¿prescribes for it only a civil penalty, so that, he could not be indicted for doing it. Upon an examination of the provision it is clear in the first place that it does not authorize or allow betting or. wagering. On the contrary, it prescribes a penalty for it, and, therefore, to that extent it certainly is not obnoxious to the constitutional
The whole matter was within the control of the Legislature. So long as it passed no law to permit or authorize the making of bets or wagers, it was at liberty to do whatever it saw fit by way of preventing them. It might make them crimes, or it might content itself with imposing civil liabilities for them. But whatever it saw fit to do in the matter, was clearly within its own discretion and cannot be reviewed by the courts. It is not necessary for us to consider whether the provisions of section 17 of chapter 570 of the Laws of 1895 are as effective as some other penalties might be to prevent the acts forbidden by the Constitution. All that we can say is that it was within the discretion of the Legislature to say to what extent they would go in preventing an act when done under certain circumstances, and when they have exercised them discretion the courts have nothing to do with the way in which it has been done.
Taking this view of the case, as we must, our conclusion must be that the acts of Sturgis which were the subject of the penalty prescribed by section 17 of chapter 570 of the Laws of 1895, were subject to no other penalty, because the statute makes that penalty exclusive, and, therefore, he was not guilty of a crime; and the Court of Oyer and Terminer in discharging him from imprisonment was right, and its order must be affirmed.
Van Brunt, P. J., Barrett and O’Brien, JJ., concurred.
Order affirmed.