4 N.Y.S. 25 | N.Y. Sup. Ct. | 1889
The transactions which were alleged to constitute gambling, under section 343 of the Penal Code, related to the fluctuation in the price of stocks bought and sold in the Yew York Stock Exchange, as indicated by a stock quotation ticker. The purchaser of a stock named by him would deposit a margin, and receive an acknowledgment in printed form, with blanks
The question here presented is distinctly whether the transactions mentioned are within these provisions. The appellant’s place of business is an open market, and so arranged that his customers can seethe quotations, which are recorded on a blackboard, and are correct statments of dealings recorded in the Stock Exchange, and by which, if any dispute arise, it is to be settled. There is nothing dependent upon chance or device which the appellant can influence or control, so far as the record develops the modus operandi; and the difference, therefore, between his transactions and those of the Stock Exchange, consists in settling by fluctuations, without a purchase or sale of the stock. Assuming that it was not the intention of the customer or the appellant to buy or sell the stock embraced in the transaction consummated, and that the contract was one of wager, and not binding, nevertheless it was not included in the category furnished, by chapter 9 of the Penal Code entitled “Gaming.” The first section (336) relating to the subject under consideration declares it unlawful to keep or use any table, cards, dice, or other apparatus commonly used in playing any game, etc. Section 337 makes the violation of section 336 a misdemeanor, and section 338 makes the keeping of any article or apparatus in violation of section 336 a public nuisance. Section 339 declares it a misdemeanor to win by fraud while playing at any game; and section 340 provides that any person exacting anything won by cards, or any other game of chance, or any bet upon the hands or sides of the players, shall forfeit five times the value thereof. Section 341 provides that “a person who wins or loses at play, or by betting at any time,” the sum of $25 or upwards, within 24 hours, is punishable by a fine of five times the value or sum so lost or won, to be recovered in a civil action, and section 342 provides for the attendance and privilege of witnesses. These sections, separately and collectively, relate to games eo nomine,—games of chance played, and by cards, dice, or faro, or any other games of chance, wholly fortuitous, and not connected in any way other than with the factors of the game itself, and illegal per se, without reference to the intention; an absolute hazard, not dependent upon legitimate fluctuations in legal business modes, and necessarily embracing only the playing of games of chance as such, with table, cards, dice, or other articles or apparatus, and the keeping of the same for such games of chance.
The accuracy of this interpretation is enforced by the provisions of some of the remaining sections. Section 344, for example, declares what a common gambler is, and the three following sections provide for the seizure of articles suitable for gambling, specifying cards, dice, etc.; and section 348 provides that a person who persuades another to visit any building used for the purpose of gambling, in consequence of which such person gambles therein, is guilty of a misdemeanor, and in addition thereto is made liable to such person for the money lost at play. It will have been observed that the section# relating to the destruction of gambling devices specify cards, dice, etc.,—thus indicating what is meant by the word “gambling;” and that, by the last section mentioned, the word is again inferentially defined by providing for the recovery of money lost at play. Sections 349, 350, and 351 have no application to the question discussed, and contain no provisions the consideration of which will aid in the solution of the question in hand. The Penal Code in reference to gaming is substantially a re-enactment of 'the provisions of the Revised Statutes, (see notes to section in Donnan’s Annotated Code,) and which were chiefly enacted before the introduction of many of the stratagems, devices and symbols which are now in use, and are the off-spring of inventions similar to the quotation indicator; thus illustrating what is maintained by some philosophers, with cogent reason, that immorality and crime keep pace with intellectual development, and travel hand in hand with science and progress,—with civilization, which enlightens for good, and for evil as well.. However this may be, the result of the examination of the statute upon which the appellant was convicted is that it was aimed at all games of chance, and lotteries, and betting on horse-racing and elections, but not against the transactions which distinguish the appellant’s as one in the field of strategy, if not.
There can be no doubt of the objectionable, demoralizing nature of the appellant’s business. It cannot be other than just such traps for the unwary as the legislature hoped to prevent, but which has failed in so doing in consequence of the ingenuity displayed in the method adopted to frustrate such design. But it is not beyond the reach of that body yet, and it is to be hoped that prompt action will be taken to overcome the evil, and to punish the offender by proper and comprehensive enactments. It is true that devices beyond the sphere of any statute may be employed, but they can be met and crushed by further legislation. Many subjects have required a multitude of statutes in England and in this country to root out the wrong inveighed against, and the result has been a success. The transgressor may have short intervals under such a system, but the day of punishment will come at last. Judgment reversed, and new trial ordered.
Van Brunt, P. J., and Daniels, J., concur in the result.