People ex rel. Collins v. McLaughlin

The relator was arrested upon a warrant issued by a city magistrate, in the Second Division in the city of New York, charged with having violated the provisions of section 351 of the Penal Code, as amended by chapter 507 of the Laws of 1908.' The sworn information upon which the warrant was issued set up that on the 16th of June, 1908, at the race course of the Brooklyn Jockey Club at Gravesend, borough of Brooklyn, county of Kings, a race course authorized by statute, relator made an oral bet of five dollars with one Rail; that said Rail bet that “ Rostrum,” a horse entered in a race to be then and there run, would win, and relator accepted said bet; that the race was run and Rostrum lost; that Rail, while standing upon the lawn of said race course, and after said race had been decided, handed to the relator the sum of five dollars, who thereupon received the same. On being arraigned the relator moved to dismiss the proceeding on the ground that the information did not set forth facts sufficient to constitute the commission of a crime. The motion was denied and relator held for trial. Thereafter he sued out a writ of habeas corpus, and the writ having been sustained and the prisoner discharged, the district attorney brings this appeal.

The question presented is v’hether the receiving of a sum of money in payment of an oral bet, made .between two individuals upon a race track upon the result of a race then and there to be run, constitutes a crime. The statute invoked by the learned district attorney is section 351 of the Penal Code, as amended by chapter 507 of the Laws of 1908. That section provides as follows :

“ § 351. Pool-selling, book-making, bets and wagers, et cetera.—Any person who engages in pool-selling or book-making

at any time or place; or any person who keeps or occupies any room, shed, tenement, tent, booth, or building, float or vessel, or any part, thereof, or who occupies any place or stand of any kind, upon any public or private grounds within this State, with books, papers, apparatus or paraphernalia, for the purpose of recording or registering bets or wagers, or of selling pools, and any 'person who records or registers bets or wagers, or sells pools upon the result of any trial or' contest of skill, speed or power of endurance, of man or beast, or upon the result of any political nomination, appointment or election; or upon the result of any lot, chance, casualty, unknown or contingent event whatsoever; or any person who receives, registers, records or forwards, or purports or pretends to receive, register, record or forward, in any manner whatsoever, any money, thing or consideration of value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person, or sells pools, upon any such result; or any person who, being the owner, lessee, or occupant of any room, shed, tenement, tent, booth or building, float or vessel, or part thereof, or of any grounds within this State, knowingly permits the same to be used or occupied for any of these purposes, or therein keeps, exhibits or employs any device or apparatus for the purpose "of recording or registering such bets or wagers, or the selling of such pools, or becomes the custodian or depositary for gain, hire or reward, of any money, property or thing of value, staked, wagered or pledged, or to be wagered or pledged upon any such result; or any person who aids, assists or abets in any manner in any of the said acts, which are hereby forbidden, is guilty of a misdemeanor, and upon conviction is punishable by imprisonment in a penitentiary or county jail for a period of not more than one year.”

The learned district attorney makes his claim under that clause of the section which reads, “ any person who receives, registers, records or forwards, or purports or pretends to re

Prior to the last Constitutional Convention of the State the Constitution of 1846 provided in article 1, section 10, as follows: “ No law shall be passed abridging the right of the people peaceably to assemble and to petition the government, or any department thereof; nor shall any divorce be granted otherwise than by due judicial proceedings; nor shall any lottery hereafter be authorized or any sale of lottery tickets allowed within this State.” The Revised Constitution, adopted in 1894, and wdiich went into effect the 1st day of January, 1895, provided in article 1, section 9, as follows: “No law shall be passed abridging the right of the people peaceably to assemble and to petition the government, or any department thereof; nor shall any divorce be granted otherwise than by due judicial proceedings; nor shall any lottery or the sale of lottery tickets, pool-selling, book-making, or any other kind of gambling hereafter be authorized or allowed within this State; and the Legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.”

At the time of the adoption of this Constitution all betting and gambling wTas illegal, except in the case of betting on race courses hereafter considered. The Revised Statutes (Pt. 1, ch. 20, tit. 8) provided as follows: Sec. 8. “ All wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful. All contracts for or on account of any money or property, or thing in action

In Ruckman v. Pitcher, 1 N. Y. 392 , in an action to recover from a stakeholder the amount of a bet which, at the request of the loser, the plaintiff, he had paid over to the winner, the Court of Appeals, in holding the action well brought, alluding to the statute against betting and gaming, said: “ The evident intention of the Legislature was to discourage and repress gaming in all its forms, including bets and every species of wager contracts of hazard, as a great public mischief, calling for effective measures of prevention and remedy. * * *" The Revised Statutes, which went into operation in 1830, fully

That case was cited and followed in Storey v. Brennan, 15 N. Y. 524 . In Meech v. Stoner, 19 N. Y. 26 , the court held that the right of action given by the statute for money lost in gaming was assignable and not a mere personal privilege of the loser.

The Penal Code dealt with various forms of betting and gambling. While, as pointed out, all were illegal, some were punished as misdemeanors and for some offenses a civil action was given to the better or player or to the overseers of the poor to recover the amount lost or won, or in treble or five times that amount.

The Penal Code* provided in section 336 that “ It is unlawful to keep or use any table, cards, dice or any other article or apparatus whatever, commonly used or intended to be used in playing any game of cards or faro, or other game of chance, upon which money is usually wagered, at any of the following

Section 331 provided that any person who knowingly violated the foregoing section was guilty of a misdemeanor. Section 339 provided that “ a person who, by any fraud, or false pretense whatsoever, while playing at any game, or while having a share in any wager played for, or while betting on the sides or hands of such as play, wins or acquires to himiself, or to any other, a sum of money or other valuable thing, is guilty of a misdemeanor.”

Section 340 provided that “ A person who exacts or receives from another directly or indirectly any money or other valuable thing by reason of the same having been won by playing at cards, faro or any other game of chance, or any bet or wager whatever upon the hands or sides of players, forfeits five times the value of the money * * *, to be recovered in a civil action by the persons charged with the support of the poor.”

It being a felony to sell pools or make books elsewhere than at an authorized race track the pool room people thereupon devised a scheme by which they claimed to be merely forwarders of the money deposited by bettors with them. They pretended to receive the same as common carriers to send to the race tracks where it could he bet. This is clearly shown by the opinions in People v. Wynn, 35 N. Y. St. Repr. 487 , decided in December, 1890, affirmed on opinion below ( 128 N. Y. 599 ), and People v. Fisher, 42 N. Y. St. Repr. 884 , decided in December, 1891.

The next act was chapter 469 of the Laws of 1893, which amended chapter 479 of the Laws of 1887 so that section 7 thereof provided as follows: “Any person who shall engage in poolselling or bookmaking at any time or palee except as hereinbefore stated, or who outside of any race track or grounds •on which racing is had, owned, leased or conducted by racing

The clear intent and purpose of this statute was to reach thepoolsellers who were conducting their business, not upon the tracks, but in pool rooms, and to put an end to their pretense of being common carriers, and so the word “ receivers,” upon which the learned district attorney now lays such stress came' into the statutes, for this act not only made it a felony to record or register bets or wagers and to sell pools, other than at a race track, but made it likewise a felony to become the custodian or depositary for gain, hire or reward of any money staked,, wagered or pledged, or to-be wagered or pledged, or to “ receive,, register, record, forward or purport or pretend to forward to or for any race course * * * any money * * * bet or wagered, or money * * * offered for the purpose of being bet or wagered * * * ” "or to- “ occupy any place * * * with books, * * * for the purpose of receiving or pretending to receive, or for recording or registering, or for forwarding, or pretending or attempting to forward in any-manner whatever any money * * * bet or wagered or to be bet or wagered, for any other person, or shall receive or offer to receive any money * * * bet or to be bet a.t any race track.”

Thus, at the time of the convening of the Constitutional Convention of 1894, all gambling and betting was illegal, except that the law authorized and allowed poolselling and bookmaking upon certain tracks for certain days when the same acts-committed elsewhere were felonies.

It was under these circumstances that the constitutional provision was adopted “ nor shall any * * * poolselling.

By chapter 570 of the Laws of 1895, chapter 479 of the Laws of 1887, and chapter 469 of the Laws of 1893, cited, supra, were repealed. Section 17 of the act provided that Any person who, upon any race-course authorized by or entitled to the benefits of, this act, shall make or record,, directly or indirectly, any bet or wager on the result of any trial or contest of speed or power of endurance of horses taking place upon such race-course, shall forfeit the value of any money or property so wagered, received or held by him, to be recovered in a civil action by the person or persons with whom such wager is made, or by whom such money or property is deposited. This penalty is exclusive of all other penalties prescribed by law for the acts in this section specified, except in case of the exchange, delivery or transfer of a record, registry, memorandum, token, paper ór document of any kind whatever as evidence of any such bet or wager, or the subscribing by name, initials or otherwise, of any record, registry or memorandum in the possession of another person of a bet or wager, intended to be retained by such other person or any other person as evidence of such bet or wager.”

By chapter 571, section 343 of the Penal Code was amended by striking therefrom the provision that “ nothing in this section shall be construed to repeal or otherwise affect the provisions of chapter four hundred and seventy-nine of the laws of one thousand eight hundred and eighty-seven.” And by ■chapter 572, section 351 of the Penal Code was amended so as to read as follows: “ Any person who engages in poolselling, •or bookmaking at any time or place; or any person who keeps or occupies any room, shed, tenement, tent, booth, or building, float or vessel, or any part thereof, or who occupies any place,

The constitutionality of this legislation was upheld by the Court of Appeals in People ex rel. Sturgis v. Fallon, 152 N. Y. 1 , 12 N. Y. Crim. 273 . The court said: “It is not within "the province of this court to declar e that section seventeen is in contravention of the Constitution for the reason that it does not deem the provision adopted appropriate or sufficient to prevent such offenses. * "x" * So long as this legislation w’as in any degree appropriate to carry into effect! the

By chapter 506 of the Laws of 1908, section 17 of chapter 570 of the Laws of 1895 was repealed, and, by chapter 507 of ■the Laws of 1908, section 351 of the Penal Code was amended so as to read as hereinbefore set forth at the commencement of this opinion. The change in the section, as amended by the acts of 1895 and 1901, was to change the degree of the crime from a felony to a misdemeanor, punishable in a penitentiary or county jail for a term of not more than one year and the striking out of the provision providing for an exception when another penalty is provided by law.

. In the extended examination which I have made of the statutes, the only provision which I have been able to find which makes an oral bet, unaccompanied by any memorandum, a crime is section 460 of the Penal Code, which provides that a person who bets, stakes or wagers money or other property upon the result of a prize fight is guilty of a misdemeanor. The effect of the legislation of 1908 was to put an end to the ■exclusive penalty of a civil recovery for the making or recording of a bet upon an authorized race track, and to make the laws applicable to gambling, betting, bookmaking and pool-selling the same within as without the inclosure.

Betting is illegal everywhere, but it is not a crime unless so provided by positive enactment.

This court said, in People ex rel. Lawrence v. Fallon, 4 App. Div. 82 : “ It must be remembered that the Constitution did' not establish any new rule in this State. All gambling and betting and wagering had been forbidden for many years by statute. The only effect of the Constitution was to put it out of the power of the Legislature to authorize any kind of gambling by the repeal of the laws which had theretofore forbidden it1.” The Cotirt of Appeals said, in People v. Stedeker, 175 N. Y. 57 , 17 N. Y. Crim. 326 : “ While at common law wagers on indifferent subjects were legal and might be en