People v. Todd — 21 N.Y. St. Rep. 399

Majority

p. 399

The People, Resp’ts, v. Elliott W. Todd, App’lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

.1. Gambling—Bucket shops—Penal Code, chap. 9—Options for the PURCHASE OR SALE OP STOCKS ARE NOT GAMBLING WITHIN THE PENAL Code.

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 the market value of that stock, is not gambling within the provisions of chapter 9 of the Penal Code.

Same—Penal Code, § 343—What not a room for gambling within THIS SECTION.

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 this section.

'3. Same—What word “gambling” as used in § 343 covers.

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.

A. Same—Statute—Rule for interpreting.

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.

;5. Same.

The words of a statute are to be taken in their ordinary and familiar 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.

Appeal from a judgment of conviction in the court of ■general sessions for keeping a room used for gambling.

. Freeling H. Smith, for app’lt; McKenzie Semple, for the people.

The transactions which were alleged to constitute gambling under section 3Í3 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 five per cent above contract price-shares-at-. E. W. TODD.”

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

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“Mr.--;

“In consideration of $-received can sell to the undersigned if delivered before the stock sells - per cent above or five per cent below contract price-shares-at-. E. W. TODD.”

The blank before the words “per cent” was filled in to-correspond exactly with the sum deposited by the customer which was generally one 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 on market-values, the contract would be a wager within the statute. Bigelow v. Benedict, 70 N. Y., 202 ; Story v. Salomon, 71 N. Y., 420 ; Harris v. Tumbridge, 83 id., 92.

But it does not follow that a wager, though void and nonenf orceable 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 black-board 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 developes the modusoperandi, and the difference, therefore, between his transactions and those of the stock exchange consist 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 “Gaming.” 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

p. 401

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 anything 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 upwards within twenty-four hours, is punishable by a fine of 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 game 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 table-cards, dice, or other articles or apparatus, and the keeping of the sanie 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 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 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 by this chapter,” that is, tc be used foi gambling forbidden by this chapter or to be used for any purpose forbidden by this chapter, or to be used in any manner forbidden by this chapter. The proper construction of this

p. 402

■section leads to this result. The object in view was to prevent the use of any place for playing or practicing any one of the prohibited games or devices, or hazards, or chances, designated or fairly embraced within the purview of the statutes. 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 Dwar, Stat. 236; Sedgwick on Stat. and Const. Law, 425.

The accuracy of this interpretation is enforced by the provisions of some of the remaining sections: 344 for example declares what a common gambler is and the three following sections provide for the seizure of articles suitable dor 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 cf 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 and 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 m reference to gambling is substantially a re-enactment of the provisions of the Revised Statutes (see notes to section — in Donnans’ Annotated Code) and which were chiefly enacted before the introduction of many of; the stratagems, devices, and symbols which are now in use', and are the offspring of inventions similar to the stock quotation indicator, thus illustrating what is maintained by some philosophers with cogent reason that immorality and crime keep pace with intellectual developement and travel hand in hand with science and progress with civilization, which enlightens for good and for evil as well: However

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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 appellants 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 findings that they were mere disguises for gambling. Oases 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 familiar 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 on Stat., 193. Statutes are to-be read according to the natural and obvious import o£ their language. Sedg. on Stat. and Constitutional Law, 260; Waller v. Harris, 20 Wend., 555 , 556, 557; Martin. v. Hunter's Lessee, 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 “gamen,” which means to play. And accordingly the word 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 nomine to be-played.

The result was to be determined by such fluctuations in the legal disposition of securities as marked their value or

p. 404

their price by sale or purchase at the stock exchange and the hazard was dependent therefore upon such lawful transactions as might occur 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 have failed in consequence of the ingenuity displayed in the method adopted 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, Ch. J., and Daniels, J., concur in the result.