129 A.D. 462 | N.Y. App. Div. | 1908
The defendants in this action are charged with a violation of the provisions of section 344 of the Penal Code in that on “ the thirteenth day of July, 1908, at the Borough of Brooklyn, of the City of New York, in the County of Kings, the said William Engeman, Christopher Fitzgerald and John G. Cavanagh were the owners, agents and superintendents of a certain device and apparatus for gambling, that is to say, a certain device and apparatus commonly called Advance Information, said device and apparatus being a sheet of paper on which was written the names of horses that had been entered to and were to run and take part in a certain horse race, the same being a trial and contest of skill, speed and power of endurance between said horses, then and there arranged to take place and about to take place on premises then and there situate and commonly known and designated as the grounds of the Brighton Beach Pacing Association and as the Brighton Beach Pace Track, and on which also was written alongside the names of such horses the names of the riders or jockeys who were entered to and about
The defendants have demurred to this indictment, among other grounds, that it does not state facts sufficient to constitute a crime, and the learned court below has sustained the demurrer. Appeal comes to this court, and the learned district attorney, in appealing from the order, states in his brief that the “ whole question before the County Court turned upon whether the device and apparatus mentioned in the indictment was a device and apparatus for gambling, within the terms of section 344,” and that this “ appears to be the only point in issue,” so that it does not seem to be necessary to travel over the elaborate argument of counsel for the respondents. If this paper, containing information as to the horses entered, the names of the jockeys who were to ride them, the names of the horses which had been withdrawn, the length of the race to be run, and its number, constitute a device for gambling, then upon this point the demurrer is not well taken, and it will be necessary to consider the other objections raised by the demurrer. On the other hand, if this slip of paper is not a device for gambling, then the demurrer is good upon the ground specially urged by all the respondents, and the order should be affirmed.
Section 344 of the Penal Code provides that “ a person who is the owner, agent or superintendent of a place, or of any device, or apparatus, for gambling ; or who hires, or allows to be used a room,
It is urged that instead of construing this language in its plain- and obvious sense, we should treat the words “for gambling” to mean the same as if the statute read “for the purpose of gambling,” and that as it is alleged that these slips of paper, conveying information in respect to the races to be run, were used, or offered to be used as the foundation on which bets or wagers were to be made, the indictment is good as against the ground specially under consideration. But we know of no rule which requires us to transpose words or to add words to a criminal or penal statute for the sake of giving them an enlarged effect. On the contrary, where language is intelligently used, and accomplishes a purpose, it is to be understood and applied by the courts in its obvious and commonly understood import, and thus construed we are clear that the Legislature never intended to say that an innocent slip of paper, conveying information which would be of interest to any man who might be present at a horse race, and which contained no scheme for gambling upon its face, and which gave no directions where gambling could be done, and which was no more a part of gambling than the same information would be if picked up by each individual by laboriously searching out the various persons who might be able to afford it, constitutes a “ device, or apparatus, for gambling.” If we could say that the printed slip of paper constituted a “ device or apparatus for gambling,” because it contained information which a careful gambler might desire before making his wager, we might go back and say that the types from which the slip was printed constituted a “ device, or apparatus for gambling,” because it was used to make the slips, and so we might go back to the paper
The order appealed from should be affirmed.
Jenks, Hooker, Gaynor and Miller, JJ., concurred.
Order of the County Court of Kings county affirmed.