People ex rel. Clifton v. De Bragga — 17 N.Y. Crim. 12

Majority

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Supreme Court—Appellate Division—Second Department.

June, 1902.

THE PEOPLE EX REL. CHARLES CLIFTON v. JOSEPH H. DE BRAGGA.

(73 App. Div. 575.)

Headnote

1. Poolselling—Penal Code, sec. 351.

A person charged with poolselling, bookmaking, etc., is liable to be punished under section 351 of the Penal Code, and his liability is not limited to a suit for a penalty in a civil action at the instance of the complainant or the maker of the bet of which he was the stakeholder.

2. Same.

Section 351 of the Penal Code is constitutional.

Appeal by the relator, Charles Clifton, from an o-rder of the County Court of Queens county, entered in the office of the

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clerk of the county of Queens on the 6th day of Hay, 1902, dismissing the writs of habeas corpus and certiorari theretofore issued in the action and remanding the relator to the custody of the sherifE of Queens county.

Charles S. Hayes, for the appellant.

George A. Gregg, for the respondents.

This is a habeas corpus proceeding, instituted to test the sufficiency of an information charging the relator with a violation of section 351 of the Penal Code, relating to poolselling, bookmaking, etc. The contention of the appellant is two-fold: (1) That he is not liable to be punished under section 351 of the Penal Code for the acts which he is charged to have committed, but is subject only to be sued for a penalty in a civil action at the instance of the complainant or the maker of the bet of which he was stakeholder as prescribed by the Revised Statutes (1 R. S. 662, secs. 8, 9), and (2) that section 351 of the Penal Code is in conflict with the Federal constitution (14th amendt, sec. 1), and the constitution of the State of New York (Art. 1, secs. 1, 6; art. 3, sec. 18).

As to the first proposition it is enough to say that it is opposed to the recent determination of the Appellate Division of the First Department in the case of People v. Levoy, 72 App. Div. 55 .

The second proposition is based upon reading section 351 of the Penal Code in connection with section 17 of chapter 570 of the Laws of 1895, which prescribes an exclusive penalty of the forfeiture of the amount of the bet when made or recorded upon a race course. It was held by the Court of Appeals, in the case of People ex rel. Sturgis v. Fallon ( 152 N. Y. 1 ), that the section cited from the act of 1895 was constitutional and valid. We think that the decision of the Court of Appeals in that case necessarily implies that section 351 of the Penal Code is also

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constitutional. (See last paragraph of the opinion of Martin, J., 152 N. Y. on p. 12.)

The order appealed from should be affirmed.

All concurred.

Order affirmed.

Cases cited

People ex rel. Sturgis v. Fallon 152 N. Y. 1 N.Y. 1897-03-02 p. 13