204 N.Y. 261 | NY | 1912
The defendant was indicted in March, 1910, for a violation of the provisions of section 986 of the Penal Law which deals with poolselling, bookmaking, registering and recording of bets and wagers, and similar matters. The indictment contains six counts. The first charged the defendant with keeping and occupying a room with books, papers, apparatus and paraphernalia for the purpose of recording and registering bets *263
and wagers and selling pools; the third with keeping, exhibiting and employing devices and apparatus for the purpose of recording and registering bets and wagers and selling pools; the sixth with being the occupant and lessee of a certain room and therein keeping and exhibiting devices and apparatus for the same purpose. At the close of the prosecution these counts were dismissed. The remaining three charged the defendant with the crime of receiving, recording and registering bets and wagers upon the result of a horse race, and on them the case was submitted to the jury. The defendant was convicted and the judgment on that conviction unanimously affirmed by the Appellate Division. The affirmance being unanimous, this court is precluded from considering the objection raised by the defendant that the evidence was insufficient to warrant the conviction. (People v.Maggiore,
The evidence in support of the prosecution shows that the defendant did make bets with certain persons on a horse race. There was no evidence to show that he recorded or registered a bet in any other way than by receiving a memorandum made by the party with whom he bet. The court instructed the jury that the making of an ordinary bet on a horse race was not a violation of the Penal Law, unless the person making the bet made some record or registry of it, or it was accompanied with the use of some part of the paraphernalia of the professional gambler, of which last there was no evidence in the case. Thereupon the defendant requested the court to charge that if the defendant made a bet with Oldorff, it was not a violation of the Penal Law for him to accept from Oldorff a record or memorandum of the same, to which the court responded: "I will charge if the jury do *264
not find fairly that he accepted this memorandum, and thereby and by having it for some appreciable time registered and recorded a bet, they could not find him guilty." To this modification and refusal to charge as requested the defendant excepted. It is to be borne in mind not only that the offenses with which the defendant was charged were committed prior to the amendment of the Penal Law making bookmaking and poolselling, with or without writing, a crime (L. 1910, ch. 488), but that the only question submitted to the jury was whether the defendant had recorded or registered bets. That making a bet or wager unaccompanied with record or registry was not at the time of this transaction a crime, was decided by this court in People ex rel. Lichtenstein
v. Langan (
The judgment of conviction must be reversed and the defendant discharged from custody.
GRAY, HAIGHT, VANN, WILLARD BARTLETT, HISCOCK and COLLIN, JJ., concur.
Judgment of conviction reversed, etc.