296 N.Y. 236 | NY | 1947
The information in this criminal cause charges that defendant, in violation of section 974 of the Penal Law, "did knowingly, wilfully and unlawfully have in his possession written on a marble slab at hallway of premises 161 Rivington Street in the County of New York, City and State of New York, 300 numbers, said slips or papers representing and being bets or records of chances, shares and interests in numbers sold, drawn and selected, and to be drawn and selected, and in what is commonly called policy, or being papers, writings or articles of a kind commonly used in carrying on or playing the game commonly called policy."
The evidence at the trial was given by a police officer who saw defendant standing, for about ten minutes, in the hallway of the apartment building at 161 Rivington Street. During that period several persons approached defendant and each such person talked with defendant and handed something to him. On each such occasion defendant took out a pencil and made motions as if writing on the wall. The police officer then arrested and searched defendant. On his person was found some $60 in bills and coin, but no policy slips. On a marble slab affixed to the wall, at about the point where the officer had seen defendant applying his pencil, there were found written in pencil many names and numbers. The officer removed the slab from the wall, brought it into court and testified, as an expert, that the inscriptions referred to policy wagers or plays. The building was occupied but the officer was unable to state *238 whether defendant was the owner of, or a tenant in, the building, or had any control or management of it. Defendant's counsel moved to dismiss the information on the ground that there was no proof of possession by defendant of the slab on which the names and numbers appeared. Defendant was, however, found guilty as charged.
Section 974 of the Penal Law contains a single, long, involved sentence, the meaning of which was simply stated in People v.Hines (
In 1901 (see chapter 190 of the laws of that year) the then Penal Code was amended, in an effort to prevent policy playing, by the addition of three new sections, two of which, practically unchanged since then, have since become sections 974 and 975 of the Penal Law. The scheme of law enforcement therein provided is a drastic one. Section 974 makes it a misdemeanor to possess policy slips or similar articles and section 975 makes the mere possession thereof presumptive evidence that such possession is knowing and in violation of section 974. Throughout the two sections the word "possession" is used many times. Since mere "possession", without more, is made a criminal offense, it is of course essential that defendant's "possession" be conclusively shown (see People v. Leon,
The judgments should be reversed, the fine remitted and the information dismissed.
LOUGHRAN, Ch. J., LEWIS, THACHER, DYE and FULD, JJ., concur; CONWAY, J., taking no part.
Judgments reversed, etc.