Hyperlawhypertext legal database People v. Todd 6 N.Y. Crim. 203

← Cases

People v. Todd

6 N.Y. Crim. 203 Court Supreme Court-General Term-first Department. English

Delivered by *219 Beady, J.

Contents

Majority

p. 203
Supreme Court-General Term-first Department.
January, 1889.
PEOPLE V. TODD.

Headnote

“ Bucket Shops.”—Optional Oontbaots in Stocks not Gambling.—Penal Code, chaptee 9, section 313.
An optional contract for the purchase or sale of stock, to be settled, not by the actual delivery of the stock, but upon a basis determined by the fluctuations of its market value, is not gambling within the provisions of the Penal Code (chapter 9).
And the proprietor of a place where the business of making such transactions is carried on, docs not keep a room, etc., to be used for gambling within the provisions of section 343 of the Penal Code.
The word “ gambling,” as used in section 343 of the Penal Code, only relates to, and covers, the games prohibited in the preceding sections of chapter 9 of that Code.
Where in a statute particular words are followed by general ones, the latter are held to apply to persons and things of the same kind as those which precede.
The words of a statute are to be taken in their ordinary and familiar signification and import; regard is to be had to their general use, and the intent is to be collected, not from any particular expression, but from the whole act.
Appeal by defendant, Elliott W. Todd, from a judgment entered upon a conviction of the crime of keeping a room to be used for gambling, in the Court of General Sessions of the City and County of New York, Hon. Bufus B. Cowing presiding, entered November 15, 1887.
The indictment against defendant was as follows: “ The Grand Jury of the City and County of New York, by this
p. 204
indictment, accuse Elliott W. Todd of the crime of keeping a room to be used for gambling, committed as follows : {Penal Code, § 343.) The said Elliott W. Todd, late of the First Ward of the City of New York, in the County of New York aforesaid, on the thirteenth day of September, in the year of our Lord one thousand eight hundred and eighty-seven, and on divers other days and times as well before as after, to' the day of the taking of this inquisition, at the ward, city, and county aforesaid, with force and arms unlawfully did keep a certain room in a certain building there situate to be used for gambling; against the form of the statute in such case made and provided, and against the peace of the people of tlie State of New York and their dignity.”
Second Count. {Penal Code, § 344.)
“ And the Grand Jury aforesaid, by this indictment, further accuse the said Elliott W. Todd of the crime of allowing a room, establishment, table, and apparatus to be used for gambling purposes committed as follows: The said Elliott W. Todd, late of the ward, city, and county aforesaid, afterwards, to wit, on the day and in the year aforesaid, and on said other days and times, at the ward, <üty, and county aforesaid, a certain room in a certain building there situate, and a certain gambling table, establishment, and divers devices and apparatus, a more particular description whereof is to the- Grand Jury aforesaid unknown, and cannot now be given, the same being suitable for gambling purposes, with force and arms feloniously did allow to be used for gambling purposes, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.”
Third Count. {Penal Code, § 385.)
“ And the Grand Jury aforesaid, by this indictment, further accuse the said Elliott W. Todd of the crime of maintaining a public nuisance, committed as follows: The said Elliott W. Todd, late of the ward, city, and county aforesaid, afterwards, to wit, on the day and in the year aforesaid,
p. 205
and on said other days and times at the ward, city, and county aforesaid, with force and arms, a certain common gaming-house, there situate, for his lucre and gain, unlawfully and injuriously did keep and maintain; and in his said common gaming-house, then and on said other days and times, there unlawfully and injuriously did cause and procure divers idle and ill-disposed persons to be and remain, and the said idle and ill-disposed persons, on the day and in the year aforesaid, and on said other days and times, to game together and play at a certain unlawful game to the Grand Jury unknown, in the-said common gaming-house aforesaid, there did unlawfully and injuriously procure, permit, and suffer, and the said idle and ill-disposed persons, then, and on said other days and times, in the said common gaming-house aforesaid, by such procurement, permission, and sufferance of the said Elliott W. Todd, there did game together and play at said unlawful game for divers large and excessive sums of money to the great annoyance, injury, and damage of the comfort and repose of a great number of persons, good citizens of our said State, there inhabiting and residing, and passing and repassing, to the common nuisance of the said citizens, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of New York.”
Fourth Count„
“ And the Grand Jury aforesaid, by this indictment, further accuses the said Elliott W. Todd of the .crime of being a common gambler committed as follows: The said Elliott W. Todd, late of the ward, city, and county aforesaid, afterwards on the day of and in the year aforesaid, and on said other days and times, at the ward, city, and county aforesaid, feloniously was the owner and superintendent of a certain place for gambling there situate, and of divers devices and apparatus for gambling, a more particular description whereof is to the Grand Jury unknown, there being in the said place against the form of the statute
p. 206
in such case made and provided, and against the peace of the people of the State of Mew York and their dignity.”
At the close of the evidence the court withdrew from the consideration of the jury all the counts of the indictment except the first.
The defendant carried on business at Mo. 46 Broad street, in the city of Mew York, under the name of “Todd’s Mew York Stock Exchange.”
The room in which the business was conducted contained three stock indicators or “ tickers ” and two bulletin boards, having slats running across them to hold price cards, such as are found in some prominent Stock and Produce Exchange brokers’ offices. One of the tickers was behind the desk where defendant’s clerks were employed, and the remaining two were for the use of customers. A boy was stationed at each of these two tickers, and as the prices of stocks were printed by them he would take a paste board block, upon which was printed a figure or figures corresponding to the price indicated on the tape, and slip in its proper place on the board opposite the name of the stock, the market price. The quotations given were those from the Mew York Stock Exchange.
The business was conducted as follows: A customer desiring to deal with the defendant would fill the blanks in and sign a printed order for an optional contract of purchase or sale of some stock or bonds dealt in on the Mew York Stock Exchange and pass it to one of the defendant’s clerks, and at the same time deposit with him a sum of money amounting to one per cent, of the shares or bonds specified in the order Upon the receipt of this order and money the clerk would hand to the customer an optional contract, signed by the defendant, to purchase from or sell to him, as the order indicated, the number of bonds or shares of the stock named, at a given price, at any time before the stock or bonds should sell a certain designated per cent, above or below the contract price. The contract was in the form given in the opinion of the General Term.
p. 207
The contract price in case of option to purchase was usually of one per cent, above, and in case of option to sell of one per cent, below the market price of the stock, although this was not the invariable rule.
There is no evidence that anything was ever said or done at the time of making any of these contracts, either by the defendant or by any of his customers, indicating whether or not it was or was not the intention of the parties thereto, in the event of the exercise of the option provided for, the stock designated should or should not be actually received or delivered by the defendant according to the terms of the contract.
The contracts were, in fact, in almost all instances, settled as follows: The customer would hand his contract to the clerk, who would consult the indicator to determine the market price of the stock in question, and, in case of a purchase contract, if the market price had advanced, or, in case of a sale contract, if the market price had declined, the defendant would pay the difference between the contract and market price, together with the money deposited at the time the contract was made.
If it was apprehended at any time that the ticker did not correctly report the market prices, then they would determine the correct price by other methods, and usually by the publication of the official quotations of the Hew York Stock Exchange. The bulletin board never was used for this or any purpose except as stated, and the defendant had no control over the quotations of the ticker.
Evidence tending to establish the above facts was given on the trial. A witness for the people, named Husson, who was complainant in the case, testified that during the last two years he had visited defendant’s place of business, and had fifty or sixty transactions with him, and in all these transactions never received from or delivered to him a single share of stock, but that when there was a profit he received it in cash. He also testified that on September
p. 208
9th, 1887, he received from defendant an optional purchase contract for five shares of Philadelphia and Beading stock as follows:
“Hew York, September 6th, 1887.
“Mr. in consideration of $5
received, can buy of the undersigned, if called for before the stock seils 1 per'cent, below, or 5 per cent, above contract price, 5 shares of Beading at 63|-.
“E. W. Todd.”
The market price of Beading stock declined within the next two or three days to 61-jjj-, so that by the terms of the contract the witness’ option was gone. He testified that he went afterwards to defendant, and tendered to him $319, and demanded the five shares of Beading, and that Mr. Todd replied, “ Why, you know we do not deal in stocks; we only deal in margins; you put up your money, and if you win you get the best of it, and if you lose that is the last of it; why, it would not pay us to go and get five shares of stock, but if you want fifty I will get it for you.”
Defendant was not examined as a witness, but his clerks, who testified that they must have known of such a conversation, if it occurred, said that they never heard it. There was evidence given of the gen eral course of the business, tending to prove that the customers, at the time of the' making of the contracts in question, did not intend to receive or deliver the stocks in case they exercised the options as therein provided.
At the close of the case for the people, and again at the close of the evidence, defentant’s counsal moved the court to advise the jury to acquit the defendant, and that he be-•discharged on the ground that the facts proved did not constitute a crime; and defendant’s counsel also moved to dismiss on the ground that the facts proved were not the facts charged in the indictment. Each of these motions was-denied and exceptions taken.
p. 209
Freling H. Smith and L. W. Emerson, for defendant, appellant.
I. The contracts made by the defendant were valid, legal and binding upon him.
They are in form precisely like what are commonly known as l£ put ” and“ call ” contracts. The Court of Appeals has settled the question of their validity. Bigelow v. Benedict, 70 N. Y. 202 ; Story v. Salomon, 71 Id. 420; Harris v. White, 81 Id. 539 ; Harris v. Tumbridge, 83 Id. 92.
It is conceded that if it appeared at the time of making the contracts by the parties thereto, that there was no “ intention on the one side to sell or deliver the property, or on the other to buy or take it, but merely that the differences should be paid according to the fluctuations in the market they would not be enforceable or legal. They would then be wagers.
But there is no sufficient proof to justify such inference. There is no evidence that Hr. Husson or that any of the parties who dealt with defendant intended to settle on a basis of differences, aside from the testimony given tending to prove the usual course of dealing. The Supreme Court of the United States, in Rountree v. Smith, 108 U.S. 269 , says upon this subject as follows: “ Evidence was given that a very large proportion of all the contracts made for the sale of produce at the Board of Trade of Chicago, was settled by the payment of differences, and that nothing else was expected by the parties to them, and the number of these in proportion to the number of Iona fide contracts, in which delivery was expected and desired, is said to be so large as to justify the inference that it was so in these cases. But since the plaintiff testifies that he had no such understand ing, since nothing is proved of the intention of the other-parties, and since the contracts were always in writing, we do not think the evidence of what other people intended by other contracts of a similar character, however numerous, is sufficient of itself to prove that the parties to these contracts
p. 210
intended to violate the law, or to justify a jury in making such a presumption.”
These contracts were not for the purchase or sale of stocks, but were contracts giving the customer cm option to purchase or sell. He alone could exercise the option.
II. If, however, the contracts in question are wager contracts, the making thereof is not gambling; and keeping a room to be used for the making thereof is not a violation of section 343 of the Penal Code.
The word gamble is a derivative of game, which is from the Anglo-Saxon word gamen, and means to play.
“ A gambler is one who follows or pursues games of chance or skill with the expectation or purpose of thereby winning money or other property.” Buckley v. O’Neil, 113 Mass. 193 ; Stearns v. State, 21 Tex. 694 . Gambling is the word in common use for gaming and means “playing for money.” Amer. Cyclop. title “ Gaming.”
Making a wagering contract is not playing a game, and, therefore, is not gambling. True, in gambling a bet is made, but it is dependent upon and decided by the game or play. Woodcock v. McQueen, 11 Ind. 15 ; McHatton v. Bates, 4 Blackf. 63 ; 2 Bishop Crim. Law, §§ 590, 522. It is apparent that betting upon the future market price of a stock involves no idea or element of a play or game. Woodcock v. McQueen, supra.
A wager is a contract by which two or more agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening or not happening of an uncertain event. Ex parte Young, 6 Biss. U. S. 67; Harris v. White, 81 N. Y. 539 .
Tin's involves no element of play or game. Wager contracts were valid at common law, and an action could be maintained to enforce them, excepting where they were contrary to public policy. Bunn v. Riker, 4 Johns. 426 ; Campbell v. Richardson, 10 Id. 406. Although now void by statute, it is not a criminal offense to make them. Insurance policies and bottomry and respondentia bonds arc
p. 211
wager contracts, and would be void under the statute against the betting and gaming if they had not-been specifically excepted from its operation. 1 R. S. 662, § 10. But entering into such contracts is obviously not gambling.
The defendant, therefore, in keeping a room for making the contracts in question, assuming them to have been wagering, did not thereby keep a room to be used for gambling within the meaning of section 343 of the Penal Code.
This appears clearly from the statute itself upon which the indictment is based. (An exhaustive analysis of the statute here given is omitted as covered by the opinion of the General Term.)
III. The legislature has repeatedly, since the adoption of the Penal Code, passed acts showing that it did not consider the keeping a place for the conduct of a business such as defendant carried on, prohibited by any law. On January 14, 1884, a bill numbered 334, was introduced in the Assembly and afterward passed both houses. The first section provided that all contracts, written or verbal, for the sale, purchase or transfer of any stock of any company, should be absolutely void if based upon the fluctuations to occur in the prices of particular, or any stocks sold or dealt in in the N. T. Stock Exchange, upon what is commonly known and termed the bucket shop plan ; and the second section made it a misdemeanor for any person to keep a room, etc., for ■such business. Governor Cleveland vetoed this bill, saying, “ If I understand it, the prohibitions of the bill would go much further than its promoters intended, and subject to punishment persons who do not deem themselves in immediate danger.”
In 1887 a bill was passed (Senate bill No. 251), entitled “An Act to Tax Bucket Shops,” which made provisions for specially taxing them, and this bill was vetoed by Governor Hill, on the ground that it was special legislation.
These acts, and others of a similar character, which have been introduced, if not passed, show that the legislature- did not regard the business as a crime.
p. 212
John. JR. Fellows, district attorney {McKenzie Semple, assistant), for the people, respondent.
I. The evidence in this case suffices to show that the contracts in question were meant and intended by the parties thereto to be settled, not by the delivery of the stock at all. but by the payment in money of differences dependent and contingent upon the fluctuating quotations of the New York Stock Exchange as indicated by the stock quotation telegraph instruments and posted upon the blackboards with which the premises in question were supplied.
II. Such contracts are deemed in law wager contracts.
The Eevised Statutes of this State provide that “ 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 so wagered, bet, or staked, shall be void.” 3 Rev. Stat. (7 ed.) 1962; Bigelow v. Benedict, 70 N. Y. 202 ; Story v. Salomon, 71 Id. 420; Harris v. Tumbridge, 83 Id. 93; Cassard v. Himman, 1 Bos. 207; Tyler v. Burrows, 6 Rob. 110 ; Kingsbury v. Kerwin, 43 Super. 451; Yerkes v. Salomon, 11 Hun, 473 .
Illinois.—In Pearce v. Foote, 113 Ill. 229 , Pearce entered into a contract with a broker by which the latter was to take options in his own name, and if there were profits the broker was to pay them to the other contracting party; if losses, the latter was to pay them, the broker to receive a commission for his services. No property was to' be bought or sold; the trade was to be in differences and in options alone, and to settle the profits and loss upon the fluctuations of the market, guessing or betting on it. This-was held to be a gaming contract and within the inhibition of the statute.
Where on the evidence it is apparent that the transaction for which a note was given was a mere gambling transaction, no delivery of the property being contemplated, but a
p. 213
settlement on the basis of the fluctuations of the market, the note was held to be void.
Indiana.—In Witesides v. Hunt, 97 Ind. 191 , it was adjudged that a contract in form for the purchase of wheat to be delivered at a future day with the intention of both parties that the property is never to be delivered, but that a settlement shall be made by the payment of the difference in price on the day fixed for delivery as compared with the purchase price, is a gaming contract, and void.
Maine.—In Rumsey v. Berry, 65 Maine, 574, the court said :
“ A contract for the sale and purchase of wheat to be delivered in good faith at a future time is one thing, and is not inconsistent with the law ; but such a contract entered into without an intention of having any wheat pass from one party to the other, but with the understanding that at the time appointed the purchaser is merely to settle or pay the difference between the contract and the market price is another thing, and such as the law will not sustain. This is what is called a settling of differences, and as such is clearly and only a betting upon the price of wheat, against public policy, and not only void but deserving of the severest censure.”
Missouri.—In Cockrell v. Thompson, 85 Mo. 510 , it was held that where in a contract for the sale of wheat it is the mutual intention and understanding of the parties that the transaction shall be closed by a settlement of differences in the value of the article sold according to the fluctuations of the market, and not by its delivery, such contract is one of wager. See also Kent v. Miltenberger, 16 Cent. L. J. 433.
Tennessee (U. S. Circuit Court).—In Kirkpatrick v. Adams, 20 Fed. Rep. 287 , the court held that if the parties intended in fact to buy dr sell cotton to be delivered at a future time agreed upon by them, it is not a gambling transaction, although the exercise of the option of settling the difference in price rather than make delivery ; but if the original purpose is not to deliver the-cotton, but to use the
p. 214
form of a contract for a genuine sale as a method of merely speculating in the fluctuations of the market, the contract is void; the transaction is a gambling transaction, although there be an option of veritable sale and delivery, and that it a question of fact for the jury to determine the intention.
Kansas.—In Cobb v. Prell, 16 Cent. L. J. 433, it was hold that the fact that the intention of the-parties to the contract for the sale of commodities for future delivery is that there should be no actual delivery, but that the transaction shall be settled by the payment of the difference between the selling and the market price, renders such contract a gambling contract.
Iowa.—In the Union Nat. Bank v. Carr, 16 Cent. L. J. 320, it was held that the validity of option contracts depends upon the intention of the parties. If it is not the intention in making the contract that any property shall be delivered or paid for, but that a fictitious sale shall be settled on differences, the contract is illegal as a gambling transaction ; but if it is the bona fide intention of the seller to deliver or the buyer to take, and the option consists merely in the delivery upon a given time, the contract is valid.
District of Columbia.—In Justh v. Holliday, 11 Wash. Report; 418, it was held that where a contract is made for the delivery or acceptance of securities at a future day at a price named, neither party at the time of making the contracts intends to deliver them or accept them, but merely to pay differences according to the rise or fall of the market, the contract is a gambling one.
Pennsylvania.—Jackson v. Thomas, 97 Pa. St. 278 .
In a note to Bryant v. West. Union Tel. Co. 17 Fed. Rep. 831 , it is said the criterion by which it is determined whether the transaction is gambling or not is the intention of the parties; if they intend an actual bona fide sale and delivery it is a lawful transaction, and this although settlement made be made finally by a payment of differences. But not so if they in fact intend merely to bet upon the terms of the prices; then the transaction is gambling, and
p. 215
as such all acts and contracts m furtherance of it are illegal. Citing Cobb v. Prell, 15 Fed. Rep. 774 ; Melchert v. Amer, U. Tel. Co., 11 Id. 193; Bruce’s Appeal, 55 Pa. St. 94 ; Smith v. Bouvier, 70 Id. 325; Maxton v. Gheen, 75 Id 166; Swartz’ Appeal, 3 Brewst. 131; Fareira v. Gatell, 89 Pa. St. 89 ; Gheen v. Johnson, 90 Id. 38 ; Ruchizky v. DeHaven, 97 Id. 202 ; Porter v. Viets, 1 Biss. 177 ; In re Green, 7 Id. 338; Rumsey v. Berry. 65 Me. 570 ; Noyes v. Spaulding, 27 Vt. 420 ; Sampson v. Shaw, 101 Mass. 145 ; Bigelow v. Benedict, 70 N. Y. 202 ; Story v. Salomon, 71 Id. 420; Harris v. Tumbridge, 83 Id. 95; Lyon v. Culbertson, 83 Ill. 33 ; Gregory v. Wendell, 39 Mich. 337 ; Barnard v. Backhaus, 52 Wis. 593 ; Sawyer v. Taggart, 14 Bush, 727 ; Wilheim v. Carr. 80 N. C. 294 .
U. S. Supreme Court.—Such is also the doctrine of the Supreme Court of the United States. In Irwin v. Williar, 110 U. S. 499 , it was held that if, under the guise of a contract to deliver goods at a future day, the real intent being to speculate in the rise and fall of prices and the goods are not to he delivered, but, one 'party is to pay to the other the difference between the contract price and the market price of the goods at the day fixed for executing the contract, the whole transaction is nothing more than a wager, and is null and void.
And the English decisions are to the same effect. Briezwood v. Blaine, 11 C. B. 538 ; Rourke v. Short, 34 Eng. L. & E. 219. On the authority of the above cases it cannot be doubted that the transaction for which, in this case, the defendant was condemned by the jury was a mere wager.
III. And the making of such contracts is deemed gambling within the meaning of section 343 of the Penal Code.
The definition of gambling by Bishop is as follows: “ In general, subject, possibly, to a few exceptions, yet not many, the words 6 gaming’ and 1 gambling’ in our statutes are similar in meaning, and either one comprehends the idea'that by a bet, by chance, by some exercise of skill, or by the transpiring of some event, unknown until it occurs, something
p. 216
•of value is, as the conclusion of the premises, agreed to he transferred from the loser to the winner, without which latter element there was no gaming or gambling.” Bishop on Statutory Crimes, § 858.
The words “ game,” “ gaming ” and “ gambling ” are essentially alike in meaning. In general literature he says' “game” is widely used to denote an innocent sport, “gaming” is sometimes, yet less commonly so, and “ gambling” rarely, if ever, while in other connections those words are severally employed in the evil sense. Id. § 857.
Since in popular language the words gaming and gambling do largely if not universally indicate an evil sport, if a statute makes either punishable the evil form of it is commonly or always presumably meant; the statute being construed, as legislative acts should be, harmoniously with its manifest purpose and intent. Id. § 858.
When “ gaming ” was the statutory word, the word “gambling ” in the indictment was held not to be ill as a substitute. State v. Nelson, 19 Mo. 393 .
In Smith v. State, 17 Tex. 191 , it is said: “It is the game and not by the name by which it may be called that determines whether gaming is in violation of law or not; the law is not to be evaded by changing the nairte by which it was known when prohibited.”
In People v. Sergeant, 8 Cow. 141 , the court said: “ Illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity. Experience having shown that this leads to idleness and waste, riot and intemperance, the common law has wisely pronounced it pernicious and condemned the gambling house as a common nuisance.” 1 Hawk. P. C. ch. 75, § 6; 10 Mod. 336.
In Griezwood v. Blaine, above cited, the court held that a colorable contract for the sale and purchase of railway shares, when neither party intends to deliver or to accept the shares,' but merely to pay differences according to the rise
p. 217
■or fall of the market, is gaming within 8 & 9 Vict. ch. 109, § 18.
But nothing could be more explicit upon the subject of what constitutes gambling than the provisions of the ¡Revised Statutes above quoted. Section 8 provides that all wagers, bets, or stakes made to depend upon any lot, chance, ■casualty or unknown or .contingent event whatever, shall be unlawful. Nothing could be broader than the language quoted. Ruckman v. Pitcher, 1 N. Y. 404 ; Hitchins v. People, 39 Id 455 ; Tanner v. Trustees, 5 Hill, 121 .
■ In view of the sweeping provisions of the Revised Statutes as interpreted by the courts of this State, it cannot bo doubted that it was the intention of the Legislature to denounce as unlawful all gambling whatever, and to condemn all gambling in whatever form practiced, and to condemn all wagers, bets, or stakes made to depend upon any lot, chance, casualty or unknown or contingent event whatever.
That the species of gambling practiced by the defendant in this case falls within the term gambling used in the statute, upon which the indictment was based, appears from the spirit and letter of the various provisions of the Petial -Code relating to gaming. Examination of those provisions must satisfy the court that it is the purpose of the statutes •of this State, whether incorporated in the penal law or in the Revised Statutes, to repress and prohibit the practice of ■every land of gambling. By the Revised Statutes, all wagers, bets or stakes depending upon any lot, chance, casualty, or unknown or contingent event whatever, are declared to be unlawful; those who have suffered losses are permitted to recover the same from the winner, as summary :and extraordinary remedies are provided to effect that result.
The criminal, procedure has been exhausted by the legislature in the effort to provide means for repressing all ¡kinds of this vice.
The broadest, most comprehensive and forcible terms
p. 218
have been employed to define the various ways in which the offense may be committed, or the places or parts of places where it may be practiced. The spirit of the law breathes its hostility to every kind of gambling in every word of these extraordinary provisions. Surely a court will hesitate to declare that a transaction, cloaked in the dress of lawful 'business, but when stripped of its disguise' is nothing but gambling of the most vulgar type, is excepted from the statute.
In the People v. Jackson ( 2 Den. 102 ), Bronson, Ch. J., said : “We have not enacted the Statute 38 H. 8 , c. 9, § 11. Still I have no doubt that the keeping of a common gaming house is indictable at common law.” See also Butler’s Case, 1 C. H. Rec. 66; Cascadden’s Case, 2 Id. 53 .
No better illustration of the breadth of this statute can be found than the case of Hitchins v. People, 39 N. Y. 454 . In that case the counsel for the prisoner insisted that to-bring the plaintiff within the provisions of the statute, the room or building must be principally used for gambling that permitting gambling thereon by the owner only occasionally, is not sufficient. Grover, J., said: “ In this, I think, the counsel is mistaken. The design of the statute was to entirely prohibit, not to regulate or restrain excessive gambling, and this is clearly the import of the language used.”
In People v. Cutler, 1 N. Y. Crim. Rep., Gilbert, J., said : “ The evidence shows that the defendant kept a public saloon, to which persons resorted for the purpose of playing the game called ‘ pool.’ These games are sometimes played upon the terms that the loser of the game should pay for the use of the gaming apparatus, but at others times the parties pay for the drinks. The place of the defendant., as appears, was kept principally for those purposes. Such a place is a public nuisance at common law.” Citing Tanner v. Trustees of Albion, 5 Hill, 121 : Hitchins v. People, 39 N. Y. 456 .

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 New 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 properly filled, as follows;

Mr.-:

In consideration of $-received, can buy of the undersigned, if called for before the stock sells — per cent, below or 6 per cent, above contract price-shares at-.

E. W. Todd.

And in case of a sale a kindred document with the necessary changes as follows:

In consideration of $-received can sell to the undersigned, if delivered before the stock sells - per cent. above- or 5 per cent, below contract price,- shares at

The blank before the words “ per cent.” was filled in to correspond exactly with the sum deposited by the customer, which was generally 1 per cent. If the advance or decline were in favor of or against him, the transaction was closed, either by the exhaustion of his margin, unless he enlarged his deposit, or the payment to him of the advance. It was not a part of the scheme to deliver the stock, but to settle the difference which was caused by the fluctuation in value or price, as indicated by the quotations mentioned. These contracts, as stated by the learned trial judge, were not illegal per se, but might be, if used and so intended, as a mere disguise for gambling, for the reason that where an optional contract for the sale of property is made, and there is no intention on the one side to sell or deliver it, or on the other to buy or take it, but merely that the difference should be paid according to the fluctuation in market values, the eon-

p. 220
tract would be a wager within the statute'. Bigelow v. Benedict, 70 N. Y. 202 ; Story v. Salomon, 71 Id. 420 ; Harris v. Tumbridge, 83 Id. 92.

But it does not follow that a wager, as a contract, constitutes a crime under chapter 9 of the Penal Code, or becomes a criminal offense under its provisions and punishable as such. 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 see the quotations, which are recorded on a blackboard, and are correct statements 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 ojperandi,-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 “ Graining.” 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 any thing 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 upward within twenty-four hours, is punishable by a fine of

p. 221
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 tables, cards, dice, or other articles or apparatus, and the keeping of the same for such games of chance.

It is quite manifest that these various provisions were intended to prevent gambling in the ordinary acceptation of that term, by cards, dice, or other symbols of chance or hazard, and in places more or less private or secluded, and which in itself, without reference to any other element, was •malum prohibitum and malum in se. And section 343, which is as follows: “ A person who keeps a room, shed,, tenement, tent, booth, building, float, or vessel, or any part thereof, to be used for gambling, or for any purpose or in any manner forbidden by this chapter, or, being the owner or agent, knowingly lets, or permits the same to be so used, is guilty of a misdemeanor,” was designed to punish for keeping a place where any of those games might be played —a place where any prohibited contrivance could be used or practiced. The word “ gambling” occurs in this section for the first time, and is undoubtedly intended to relate to the games prohibited in the preceding sections and to embrace them only. This is the more apparent from the-language of the section, “ to be used for gambling, or for any purpose or in any manner forbidden bv this chapterthat is, to be used for gambling forbidden by this chapter, or to-be used for any purpose forbidden by this chapter. The proper construction of this section leads to this result. The object in view was to prevent the use of any.place for play

p. 222
ing or practicing any one of the prohibited games or devices or- hazards or chances designated or fairly embraced within the purview of the statute. There is no intention manifest of including all matters of hazard, which might involve many legal transactions by forced construction. There is an element of chance, of speculation, in all purchases which, in the main, are made for gain, and in which there may be either loss or profit to the parties, and perhaps both, for the seller may lose by selling too low and the purchaser profit by a good bargain. It must be observed, also, that the language employed consists of words of general import and designed to cover beyond peradventure all the prohibited games—a species of recapitulation in general terms. And when particular words are followed by general ones, the latter are held to apply to persons and things of the same kind as those which precede. Potter’s Dwarr. Stat. 236; Sedgwick Stat. & Con. Law, 425.

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 sections 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 Be vised

p. 223
Statutes (see notes to section in Doiinan’s Annotated Code), and wliich were chiefly enacted before the introduction of many of the stratagems, devices, and symbols which aré now in use, and are the offspring 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 of games. If the question were only whether the contracts made by the appellant were gambling transactions, there could be no doubt of the propriety of the judgment rendered herein, inasmuch as the evidence warrants the finding that they were mere disguises for gambling. Cases, supra. And the appellant’s place of business would be one kept for that purpose. But the appellant was indicted under one of a series of sections relating to the subject of gaming, and designed to cover the methods, devices, and hazards then in the legislative mind, and of which the transactions of the appellant form, it would seem, no part. He was held under one of the sections which relate to the subject expressed in and covered by them, and that section must be interpreted by its relation to the whole context. The gambling inveighed against was such as the ordinary acceptation of that term included, unless otherwise expressed or particularized. The words of a statute are to be taken in their ordinary and 'amiliar signification and import, and regard is to be had to their general use, and the intent is not to be collected from any particular expression, but from the whole act. Potter's Dwarris Stat. 193. Statutes are to be read according to the natural and obvious import of their language. Sedgwick

p. 224
Stat. & Cons. Law, 260; Walder v. Harris, 20 Wend. 555 , 556, 557; Martin v. Hunter, 1 Wheat. 326 ; Clark v. City of Utica, 18 Barb. 451 .

It is correctly insisted on this subject that the word gamble is a derivative of the word gamen, from the Anglo-Saxon gamien, which means to play. And, accordingly, the word game is defined by Webster “ to play for a stake or purse; to use cards, dice, billiards, or other instruments, according to certain rules, with a view to win money or other thing waged upon the issue of the contest;” “ to practice playing for money or some other stake;” and Worcester defines it to be “ to play at any sport, especially to play for money or any other stake;” and Bouvier declares gambling to be a contract between two or more persons by which they agree to play by certain rules at cards, dice or other contrivance, and that one shall be the loser and the other the winner. Here there was no contest to be decided, no game, eo nonvine to be played. The result was to be determined by such fluctuations in the legal disposition of securities as marked their value, or their price, by sale or purchase, at the Stock Exchange, and the hazard was dependent, therefore, upon such lawful transactions as might’occnr in regard to the stock. We are not .called upon to do more than to say whether the appellant was lawfully convicted under section 343 of- the Penal Code, and that must be answered by the interpretation of that section as it stands, without reference to any other statute or rule of law embracing such a crime, if any exist. The examination of the subject leads to the conclusion, however unfortunate that may be for the community, and however much it must be regretted, that the conviction was wrong, and that it cannot, therefore, be sustained.

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

p. 225
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.

A recent case in Minnesota (State v. Shaw, 39 N. W. Rep. 305 ), while not directly in point, perhaps, is an instance of the application of the same principle of statutory construction as in the case at bar.

It was there held that boards and lists containing the names of horses to race at a given time and place, from which combinations of winners and auction pools are sold, are not gambling devices within the Penal Code of Minnesota, section 294,—prohibiting gaming with cards, dice, gaming tables, or any other gambling device whatever, and section 295 of that Code, punishing whoever keeps any gambling device whatever designed to be used in gambling,—since, though they may afford information in so convenient a form as to-facilitate gambling, they introduce no new element of chance into the transaction (and, of course, this may be also said of all the apparatus described in People v. Todd—that is, blackboards kept in a bucket-shop and the record of fluctuations of stocks recorded thereon for the edification of the customers. In both cases the apparatus facilitates the game of chance without in any way introducing, any new element of chanee into the transaction;.

- The court said : “ Though the words 1 any other gambling device-whatever ’ are doubtless intended to include any kind of apparatus, contrivance or instrument which may be used in games of chance, and upon the manipulation or operation of which the result of the game is determined, yet these terms, 1 gambling devices,’ must be construed ejusdem generis with the particular devices which are described in the preceding portion of the same section in fixing the

p. 226
general character of such devices referred to in the statute. In re Lee Tong, 18 Fed. Rep. 257 . A horse-race is not a gambling device, nor are descriptive lists of such races, or statements or announcements of the particulars thereof, from which those desiring to bet on the races may more conveniently obtain information in respect to the same, and we are unable to see that the boards and lists or records of the pools sold described in the indictment are anything more. There is no element of chance in their use, which we think is the test. The defendants’ methods undoubtedly serve to facilitate gambling, and so does the fact that they keep open a place for gambling, and the same may be said also of the published schedules of races and games, and many other acts and things which, however, cannot be denominated ‘gambling'devices’ within the meaning of the statute. The betting is on the races exclusively, and the result is in no way determined by the use of the instrumentalities in question, and no additional element of chance is introduced thereby. The cases of Com. v. Moody, 9 N. E. Rep. 511 , and People v. Weithoff, 16 N. W. Rep. 442 , are cited in súpport of this indictment, but they arose under entirely different statutes, and only .serve to illustrate more fully the defects and omissions in the statutes of this State as respects the charges in question here.”

It will be seen that in this case the court applied the same principle of construction of statutes as was applied in the case at bar by •our own General Term; that the general words in the statute must be construed with reference to the particular ones which precede them.

Cases cited