Hyperlawhypertext legal database People v. Earing 130 N.Y.S. 1099

← Cases

People v. Earing

130 N.Y.S. 1099 Court N.Y. Cty. Ct. English

Delivered by ROSS, J.

Contents

Majority

p. 1099
(71 Misc. Rep. 615.)
PEOPLE v. EARING.
(Onondaga County Court.
April, 1911.)

Headnote

1. Municipal Corporations (§ 592[1] )—Police Power—Ordinance Conflicting with State Law.
A village ordinance .which prohibits both the keeping and the use of a place for gambling, and makes a violation thereof disorderly conduct and the offender a disorderly person, is not within Village Law (Consol. Laws 1909, e. 64) § 93, providing that village ordinances shall not declare any conduct to be disorderly, or that the person violating it shall be a disorderly person, where any statute of the state declares such conduct disorderly or makes the violator a disorderly person, although by Code Qr. Proc. § 899, subd. 4, keepers of houses for the resort of gamesters are declared to be disorderly persons, since the ordinance is directed against the actual use of a place, and the Code section applies to the keepers of houses for the resort of prohibited persons irrespective of the actual use of the premises.
[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 592.[1] ]
2. Municipal Corporations (§ 643[1] )—Violation of Ordinance—Prosecution-Certificate of Conviction.
On prosecution for violation of a village ordinance, prohibiting the keeping and use of a place for gambling, and making a violation disorderly conduct and the offender a disorderly person, the certificate of conviction is not fatally defective for failure to disclose that the defendant was convicted of being a disorderly person, where the commitment refers to the ordinance violated, and states the facts constituting the violation.
[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 643.[1] ]
3. Municipal Corporations (§ 643[1] )—Violation of Ordinance—Prosecution—Certificate of, Conviction.
In a prosecution for violation of a village ordinance prohibiting the keeping and use of a place for gambling, and making a violation disorderly conduct and the offender a disorderly person, a commitment stating that defendant was convicted of “viol. ord. No. 12 of the village of East Syracuse, N. Y., in allowing his place t'a be used for gambling purposes,” is sufficient, as it states all the possible violations of the ordinance which could happen.
4. Criminal Law (§ 273[1] )—Plea of Guilty—Waiver of Objections.
Defendant’ by a plea of guilty and failure to object before the magistrate waives any defect in the proceedings which is not jurisdictional.
[Ed. Note.—For other cases, see Criminal Law, Dee. Dig. § 273.[1] ]
5. Criminal Law (§ 273[1] )—Admissions—''‘Plea oe Guilty.”
A plea of guilty is a record admission of whatever is well alleged in the indictment.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 631-634; Dec. Dig. § 273.[1]
For other definitions, see Words and Phrases, vol. 6, p. 5408; vol. 8, p. 7756.]
Vernon Earing was convicted of allowing his place to be used for gambling purposes in violation of an ordinance of the village of East Syracuse, and he appeals.
Affirmed.
p. 1100
William E. Rafferty (George B. Dolsen, of counsel), for appellant.
George W. Standen, Asst. Dist. Atty., for the People.

The facts were' that the defendant advertised and had a raffle in his saloon, in which turkeys, chickens, etc., were disposed of by chance.

[1] The defendant was convicted of a violation of an ordinance of the village of .East Syracuse, known as ordinance 12, which reads as follows:

“No person shall have or keep a house, or building, or room or place in this village in which any keno table, faro hank, shuffle board, bagatelle, playing cards, dice or any instrument, device, thing or things whatsoever shall, by or with the consent or permission or knowledge or privity of such person, be kept or used for gambling purposes, or for the purpose of playing for money or other property, or to obtain or secure money or other property by chance. Any person violating this ordinance or any of its provisions shall be liable to a penalty of $25 for each offense. And it is further ordained that a violation of this ordinance shall constitute disorderly conduct and that the person violating the same shall be a disorderly person.”

Section 899 of the Code of Criminal Procedure contains the following:

“Who are Disorderly Persons. The following are disorderly persons: * * * 4. Keepers of bawdyhoúses or houses for the resort of prostitutes, drunkards, tipplers, gamesters, habitual criminals or other disorderly persons. * * * ”

Section 93 of the village law (Consol. Laws 1909, c. 64) reads as follows:

“Violation of Ordinances.—The board of trustees of a village may enforce obedience to its ordinances by prescribing therein penalties for each violation thereof, not exceeding one hundred dollars for any offense. In addition to the penalty the board may also ordain that a violation thereof shall constitute disorderly conduct and that the person violating the same shall be a disorderly person; and such violation shall constitute disorderly conduct and such person shall be a disorderly person. An ordinance of a village shall not declare any conduct to be disorderly conduct or that the person violating the same shall be a disorderly person, if any statute of the state shall declare such conduct to be disorderly or constitute the person a disorderly person. Every such ordinance shall be void in so far as it violates the provisions of this section.”

It is claimed by the appellant that ordinance 12 comes within the inhibition of section 93 of the village law, in that the ordinance in question and subdivision 4 of section 899 of the Criminal Code declare the same persons to be disorderly persons and the same conduct to constitute disorderly conduct. At first there would seem to be some force in this claim, which arises from the use in both acts of the word “keep” and its derivatives. . In the Code:

“Keepers of bawdyhoúses. * * * Keepers of houses for the resort of various classes of undesirables including gamesters.”

In the ordinance:

. “No person shall have or keep a house * * * or room in which any keno table * * * playing cards or dice * * * shall, by or with the consent or permission or knowledge or privity of such person, be kept or used for gambling purposes.”
p. 1101
But the apparent similarity is superficial, not real. The section of the Criminal Code deals with petty offenses, triable by a magistrate, and seeks, primarily, to compel the person charged with a violation thereof to give security for good behavior. Its provisions are framed rather to prevent than to punish crime. The section does not prescribe punishment for the crime of keeping gambling apparatus, or for the crime of keeping a gambling establishment. These offenses are defined and their punishment is fixed by the provisions of article 88 of Penal Law (Consol. Laws 1909, c. 40) §§ 970-997. The ordinance prohibits both the keeping and the use of a place for gambling. _ It is directed against keeping a place for gambling purposes. The section of the Criminal Code prohibits the keeping of a resort for gamblers, and is aimed at the character of the frequenters of the place, not at what they do therein. For instance, upon the trial of' a person charged with a violation of the Criminal Code in question, in that he kept a resort for “habitual criminals,” it would not be necessary to show that the crimes which may be made a basis of a judgment that a per son is a habitual criminal were, or any of them, committed in defendant’s place. Keeping a resort for thieves does not even imply that larceny is committed therein.

It is claimed by the appellant that a place where gambling is done must be a resort for gamblers; that they must be present to do the gambling. This is rather a play on words than a correct analysis of the language of the ordinance. This, for several reasons: First. The ordinance can be violated, even if no gambling is done in the place. The prohibition of the ordinance extends to having or keeping a house or room, etc., where the forbidden apparatus is kept for the purpose of gambling; and it would not be necessary for the people to wait for its actual use to secure a conviction. Second. To secure a conviction under the ordinance because of the use of the appliances prohibited, the character of the persons who gambled, whether gamblers by occupation or only chance participants, is entirely immaterial. It is the keeping of the room and the forbidden appliances for the purpose of gambling and also the use of the same for that purpose which are forbidden.

Imagine a charge against this defendant under the provision of section 899 of the Code of Criminal Procedure. He would say, with other pleas, “My place is not a resort for gamblers (a) because these men (assuming that they are gamblers) were never here before.” It takes more than one visit to make a place a resort, (b) Also that the men engaged in this affair were not gamblers. It takes more than a single throw of the dice to make a man a gambler within the meaning of section 899. For the reasons set forth, it seems to me that the claim that the ordinance is void, as being within the inhibition contained in section 93 of the village law, is not well taken.

[2] The objection that the certificate of conviction does not disclose that the defendant was convicted of being a disorderly person is not in my judgment fatal. The commitment refers to the ordinance which it is claimed was violated and states the facts constituting violation. I think it is sufficient. People ex rel. Ryan v. Webster,

p. 1102
86 Hun, 68 , 33 N. Y. Supp. 337 ; People ex rel. Sullivan v. Sloan, 39 App. Div. 265 , 56 N. Y. Supp. 930 ; Matter of Bartholomew, 106 App. Div. 371 , 94 N. Y. Supp. 512 ; People ex rel. Bidwell v. Pitts, 111 App. Div. 319 , 97 N. Y. Supp. 509 ; People v. Johnson, 110 N. Y. 134 , 142, 17 N. E. 684 ; People ex rel. Dinsmore v. Keeper, 125 App. Div. 137 , 109 N. Y. Supp. 531 .

In the case of People ex rel. Allen v. Hagan, 170 N. Y. 46 , 62 N. E. 1086 , relied on by the defendant in this connection, the order of commitment only referred to the section of the Penal Code claimed to have been violated; and, as stated by Mr. Judge O’Brien on page 51 of 170 N. Y., page 1088 of 62 N. E., it was claimed upon the argument of that appeal that the section in question contained fifteen different acts which are, or may be, offenses against it, some of them excusable and some of them felonies. There can be no doubt that a general reference to the section in such a case is insufficient.

[3] The ordinance in this case can only be violated in two- ways, in keeping or allowing a place to be used for gambling purposes. The commitment states that he was convicted of “viol. ord. No. 12 of the Village of East Syracuse, N. Y. in allowing his place to be used for gambling purposes.” This states in fact both possible violations, for he could not allow it to be used without also keeping it.

[4] Any. defect, not jurisdictional, can be, and was, waived by the defendant in not raising the objection before the magistrate, and by the plea of guilty. People v. Rathbun, 21 Wend. 509 -542; People v. Carter, 88 Hun, 304 , 34 N. Y. Supp. 764 ; Jones v. Foster, 43 App. Div. 33 , 37, 59 N. Y. Supp. 33 ; People ex rel. Dinsmore v. Keeper, 125 App. Div. 138 , 109 N. Y. Supp. 531 . The three cases last cited are decisions of the Appellate Division of this department.

[5] A plea of guilty “is a record admission of whatever is well alleged in the indictment.” 2 Bish. Crim. Law (4th Ed.) § 795, subd. 2.

The judgment and commitment are affirmed.

Judgment affirmed.

Cases cited