People v. Levoy — 16 N.Y. Crim. 496

Majority

p. 496

Supreme Court—Appellate Division—First Department.

May, 1902.

THE PEOPLE v. BERNARD LEVOY.

(72 App. Div. 55.)

Headnote

1. Pool Room—Penal Code, Seo. 351-—Exceptions.

The keeping of premises, not located upon a race track, for recording and registering bets on horse races, does not fall within the exceptions of section 351, Penal Code, making it a felony, “ except when another penalty is provided,” or “when an exclusive penalty is provided by law for an act hereby prohibited.”

2. Same—Betting.

The court is required to. charge the jury as what constitutes betting within the meaning of the Code, where it has fully and fairly submitted to them all the questions which the facts warranted and to which the defendant was entitled. ■ •

p. 497

3. Same.

The, fact that the witnesses for the People were engaged in procuring evidence for the purpose of detecting and furnishing the offense does not constitute them accomplices in the transaction.

Appeal by the defendant, Bernard Levoy, from a judgment of the Court of General Sessions of the Peace, in and for the city and county of Hew York, entered on the 29th day of April, 1901, convicting him of the crime of bookmaking as defined in section 351 of the Penal Code, and also from an order entered on the 13th day pf May, 1901, denying the defendant’s motion for a new trial.

Stephen J. O’Hare, for the appellant.

Howard S. Gaps, for the respondent.

The indictment contained four counts specifying various violations of section 351 of the Penal Code. In brief, these counts charged the defendant with (1) keeping and occupying a room, with books, papers, apparatus or paraphernalia for the purpose of recording or registering bets or wagers on a horse race; (2) keeping, exhibiting and employing devices and apparatus for the purpose of recording and registering wagers and bets on a horse race; (3) recording and registering bets and wagers upon the result of a horse race; (4) receiving, recording and registering money bet and wagered upon the result of a horse race.

The ease was submitted to the jury upon all four counts contained in the indictment and they returned a general verdict of guilty. The evidence adduced upon the trial abundantly justified the rendition of this verdict and established beyond a reasonable doubt that the defendant was guilty of the offenses with which he was ¿harged. ' It is not necessary to refer to it in detail as no substantial question is raised thereon.

p. 498

It is the contention of the defendant that he was not properly convicted for the reason that his case was brought within the exceptions contained in the provisions of the Code under which the defendant was indicted and convicted. The exceptions in question read as follows:

The first, after defining the offense, states that the defendant “ is guilty of a felony, except when another penalty is provided by law, and upon conviction is punishable by imprisonment in the State prison for a period not more than two years, or by a fine not exceeding two thousand dollars.”

The second reads: “ When an exclusive penalty is provided by law for an act hereby prohibited, the permitting of the use of premises for the doing of the act in such case shall not be deemed a violation hereof, or of section three hundred and forty-three of this Code.”

So far as the first exception is concerned, it is evident that it relates to the penalty provided in chapter 570 of the Laws of 185, wherein an exclusive penalty is provided where the making or recording of any bet, wager, etc., is made upon a race track. When the acts with which the defendant is charged are committed in such case the exclusive penalty is provided for a recovery of the same by a civil action. The complete answer to the defendant’s contention in this regard is found in the fact that the offenses which he is proved to have committed were not done or committed upon a race track. The exception in this regard applies to the particular place. (People ex rel. Sturgis v. Fallon, 4 App. Div. 76 ; affd. on appeal, 152 N. Y. 1 .) The place where the defendant committed his offense was upon the premises No. 55 Whitehall street, in the city of New York. This exception, therefore, is not available to relieve the defendant. The second exception has no relevancy to the contention of the defendant. The provisions of section 343 do not bear thereon. The defendant’s claim is based upon the provisions of the Revised Statutes. The further contention is made that by the provisions of the Revised Statutes (1 Birdseye’s R. S.

p. 499

[2nd ed.], secs. 4, 5 [1 Gen. Laws], 270), an exclusive penalty is provided for the offenses of which the defendant has been convicted. By section 4 of this statute all wagers^ bets or stakes, and all contracts for or on account of any money or property, etc., wagered, bet or staked shall be void. By section 5 a right of action is given to sue for and recover the amount of such stake or wager of the stakeholder or other person in whose hands shall be deposited any such wager, bet or stake, whether the same shall have been paid over by the stakeholder or not and whether any such wager be lost or not..

These provisions of the Revised Statutes do not assume to furnish an exclusive penalty for the punishment of offenses defined in section 351 of the Penal Code. If this statute should be so construed its effect would be to nullify the entire provision of section 351, and to ascribe such an intent to the Legislature is scarcely within the bounds of reason. The provisions of the Revised Statutes are remedial in their character and do not in terms or by necessary construction impose a penalty. The purpose of their adoption is clearly evident. All wagers being declared void by section 4, it is evident that a person suffering loss on account thereof, or having parted with his money for that purpose, could not, without the aid of section 5, have any relief. If he brought an action to recover the money or property which he wagered he would be met by the condition that as to it he stood in pari delicto with the stakeholder or the person who had won the wager, and the courts would deny him the right to maintain an action to recover it back.

In order to overcome this result, the statute provided in terms for the maintenance of an action to recover back tire money or property wagered. This was essential in the scheme in order to render effectual the prohibition of all bets and wagers as provided in section 4.

It was held in People ex rel. Weaver v. Van De Carr ( 150 N. Y. 439 ), that the effect of the exception contained in section

p. 500

351 excluded from its operation any offenses that may have been included by the language employed which were punishable by any then existing law. The acts enumerated "in section 351 are not punishable by the provisions of the Revised Statutes to which we have made reference, and such provisions do not embrace the offenses defined as a felony under that section. The sections of the Revised Statutes cann-ot be enlarged for any such purpose. In terms, a civil action is given to recover money, and nothing more was intended thereby; consequently, the exception has no application, nor is this changed by the fact that section 17 of chapter 570, Laws of 1895, denominates the right of reeoverey therein given as a penalty. The exception in section 351 made use of the term penalty, doubtless for the purpose of showing exact reference to the case as provided in section 17 of the act above cited, and to plainly show that it referred to it, and as there is no language in any other law to which the exception can appropriately apply, it is clear that it was not intended that the exception should extend beyond the provisions of the act of 1895.

It is evident, therefore, that the defendant’s contention in the respect cannot be sustained. It is further claimed that the court committed error in its charge to the jury, in that it did not define to them what constituted betting within the meaning of the Code provision. The court was not required so to charge. It fully and fairly submitted to them all the questions which the facts warranted and to which the defendant was entitled. When the court charged that the jury were authorized to find from the testimony that the acts charged in the indictment to have been committed, if established to their satisfaction beyond a reasonable doubt, warranted the conviction of the defendant, it was in every essential respect a charge that the acts established by the evidence constituted the offense of betting as well as the other offenses charged in the indictment. The court submitted all these questions'to the jury and in nowise limited the consideration by it of all the evidence, and from such con

p. 501

sideratdon they were authorized to convict the defendant of the crimes charged in the indictment. This was a charge as favorable to the defendant as he was entitled to and left the case for disposition by the jury with all the rights of the defendant preserved. We, therefore, find no error in this respect

The defendant insists that the first count of the indictment did not state facts sufficient to constitute a crime. If he be right in this contention, it is entirely immaterial as the jury found a general, verdict, the evidence warranted such finding, md if any one of the counts is good the verdict will be upheld. (People v. Goslin, 67 App. Div. 16 ; affd. 171 N. Y. 627 .)

The fact that the witnesses for the People were engaged in procuring evidence for the purpose of detecting and punishing rke offense did not constitute them accomplices in the transaction. They in m> sense aided and abetted in the commission of the offense and there was no intent on their part to commit a crime. (People v. Noelke, 94 N. Y. 142 .) There are no further questions that require consideration in this case. We think that the defendant whs properly convicted, that the evidence established his guilt beyond a reasonable doubt.

The judgment of conviction should, therefore, be affirmed.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment affirmed.

Cases cited

People ex rel. Sturgis v. Fallon 152 N. Y. 1 N.Y. 1897-03-02 p. 498
People ex rel. Weaver v. Van De Carr 150 N. Y. 439 N.Y. 1896-10-20 p. 499
People v. Goslin 171 N. Y. 627 N.Y. 1902-04-15 p. 501