3 N.Y. Crim. 272 | N.Y. Sup. Ct. | 1885
Section 351 of the Penal Code makes either of three things criminal. If a person keep or occupy a place with the requisite things to record bets, or if a person in fact does record bets, or if an owner or occupant of premises knowingly permits the same to be used for these purposes, such acts are made misdemeanors. The indictment charges that the defendants did each of these things. One count charges that they kept the place for the forbidden purposes. One charges them with actually recording the bets, and one with knowingly permitting the premises to be used for that purpose. The defendants, by their demurrer, admit the charges to be true. Such is the legal rule of pleading. The inference of law destroys the point taken that the defendants should be individually charged with the offense. They all did the acts charged, and if two or more may keep premises for illegal purposes or do an illegal act in any case, the grand jury may indict the joint wrong-doers together. If the acts were not joint but several, the people would fail to convict upon a trial and plea of not guilty.
The acts charged are not charged to have been done by this corporation, but at the course at Sheepshead Bay in Kings county. It would not lie legal if such acts were done by the defendants representing the corporation. The case of Harris v. White (81 N. Y. 532), does not so hold. A corporation may give premiums or prizes to be won by superiority in speed or endurance, when it is incorporated for such a purpose. The words “ bets or wagers ” are not similar in meaning to the words “ purses, prizes or premiumseach party to the former, say the Court of Appeals, in that case, “ gets a chance to gain from others and takes a risk of loss of his own to them.” The court upon this distinction cites with approval, People v. Sargeant, 8 Conn. 139, holding that illegal gaming implies gain .and loss, between the parties by betting, such as could excite a .spirit of cupidity.
A bet at a legally authorized race-course is illegal. Ruckman v. Pitcher, 1 N. Y. 392.
The indictment charges a crime. The offense is statutory, .and an indictment which avers the offense as the statute defines it, is sufficient. Phelps v. People, 77 N. Y. 324; Pickett v. People, 8 Hun.
The separate counts charging the three offenses of section 351, Penal Code was proper. When the doing of any one of several things constitutes an indictable offense, an indictment may in a single count group them together, and charge the accused with having committed them all, and a conviction may be had on proof of the commission of any one of the acts charged, without proof as to the others. Bork v. People, 91 N. Y. 5 ; 1 N. Y. Crim. Rep. 379. If a single count would be good, then by section 279, Code Criminal Procedure, it may be charged in separate counts, and when the acts complained of may constitute different crimes, such crime may be charged in separate counts.
The conviction should be affirmed.
Dykman, J., concurs.
