People v. Hines

CourtNew York Court of Appeals
Citation29 N.E.2d 483,284 N.Y. 93
PartiesPEOPLE v. HINES.
Decision Date08 October 1940

284 N.Y. 93
29 N.E.2d 483

PEOPLE
v.
HINES.

Court of Appeals of New York.

Oct. 8, 1940.


Appeal from Supreme Court, Appellate Division, First Department.

James J. Hines was convicted in the Court of General Sessions, New York County, of the crimes of conspiracy and of contriving, proposing, and drawing a lottery, and he appeals by leave of a judge of the Court of Appeals from an order of the Appellate Division affirming the judgment of conviction, 258 App.Div. 466, 17 N.Y.S.2d 141.

Judgments modified and, as modified, affirmed.

[29 N.E.2d 485]

Martin W. Littleton, Irving Goldberg, and Richard H. Brown, all of New York City, for appellant.

Thomas E. Dewey, Dist. Atty., of New York City (Stanley H. Fuld, Burr F. Coleman, and Whitman Knapp, all of New York City, of counsel), for respondent.


FINCH, Judge.

After a trial in General Sessions defendant was found guilty by the jury upon

[29 N.E.2d 486]

all counts of the indictment. Of these the first count charged a conspiracy to contrive, propose and conduct lotteries known as the ‘numbers game’ and ‘policy’, and the remaining twelve counts charged separate substantive crimes, each consisting of taking part in contriving, proposing or drawing a lottery known as the ‘numbers game’ and ‘policy’ in violation of the Penal Law, Consol.Laws, c. 10, s 1372.

Upon appeal to the Appellate Division, that court unanimously affirmed the judgment of conviction.

As the facts found present a background against which the questions of law are to be considered, we note the opening paragraph in the opinion of the Appellate Division: ‘The concession of appellant's counsel that, ‘unquestionably, the testimony was sufficient prima facie to establish that appellant was a member of the conspiracy to commit the crimes charged, as alleged in the indictment,’ renders unnecessary any extended review of the evidence. Indeed, an examination of the record and briefs leads to the conclusion that it would have been futile for counsel otherwise to contend. Questions of law only, therefore, need be considered.' 258 App.Div. 466, 467, 17 N.Y.S.2d 141, 142.

Let us examine what facts the evidence was sufficient to establish, so that counsel for defendant was forced to say ‘unquestionably the testimony was sufficient * * *.’ For the purposes of this appeal, therefore, we must assume that the evidence is sufficient to establish the following:

Briefly, in 1931, the notorious Dutch Schultz with a group of associates formed a combination to gain control of and operate various policy enterprises. By 1932 this combination had consolidated these enterprises into a business which operated a daily drawing, except Saturdays and Sundays, clearing an annual income of hundreds of thousands of dollars. Specifically, when the daily net intake had grown to $45,000 by the fall of 1632, the leaders still were not satisfied, and contrived a scheme whereby the profits might be still further increased through a rigging of the pari-mutuel figures on which the pay-offs were based. Therefore, the combination paid an individual $10,000 a week to manipulate the odds on the last race in such a way as to prevent an honest pay-off when too many players had chosen a legitimate number. As the combination increased and became more centralized, its operations became more vulnerable to attack by honest law enforcement authorities. It became essential to the continued growth and profits to have someone as a member of the gang who could as far as possible furnish protection from arrest and, if arrested, immunity from conviction. Appellant was taken in for this purpose and was paid $500 to $1,000 a week over the period from 1932 to about October, 1936, with a cut in the weekly salary in 1935 to $250 to $500 together with incidentals such as some $30,000 to help elect a District Attorney named by appellant. In brief, the method employed was to obviate arrests by obtaining the transfer to other portions of the city of the police officers who were efficiently performing their duty in enforcing the criminal law, and arranging with magistrates for dismissals when arrests were made. Appellant also took part in opening central headquarters for the combination which under the direction of Dutch Schultz were not to be opened without his approval. He also sought to arrange the removal of the banks of the combination from New York to Mt. Vernon. He took part in selecting and financing the campaign of the successful candidate elected to the office of District Attorney, and thereafter used his influence to prevent serious investigation by such office into his own activities and the activities of those associated with him in the conspiracy. As found by the jury and as stated in the brief of appellant: ‘After he (appellant) was hired, as aforementioned, appellant allegedly used his political influence on behalf of Schultz and his associates whenever called upon to do so. From time to time, various police officers who had molested or threatened to arrest or molest members of the Dutch Schultz gang, were transferred to other precincts, presumably through appellant's efforts or influence. On one occasion, according to Weinberg's testimony, appellant, at Weinberg's request, communicated with Magistrate Capshaw and induced him to dismiss policy charges pending before him against employees of the

[29 N.E.2d 487]

combination who had been arrested by the police (fols. 2546, 4917). On another occasion, upon a similar request from Davis, appellant allegedly used his influence with the late Magistrate Erwin for a similar purpose (fol. 4896). Other testimony was introduced tending to show that appellant interceded with other officials, on behalf of Schultz and his associates (fols. 5027-5030).’

The work of appellant in preventing arrests and obtaining immunity from conviction was most successful. In order not to lengthen unduly this opinion, it may be said that here was a well-organized business, successful in effective corruption of police and magistrates and in the destruction of public confidence in the orderly processes of justice in a democracy. Facts in detail supporting conclusory statements herein are available in the record.

Are there any questions of law which compel us to nullify the judgment of conviction as supported by the facts as found? Even if technical errors exist, they must be disregarded and the judgment of conviction affirmed unless a substantial right of appellant would be thereby prejudiced. Code Crim.Proc. s 542.

We take up the alleged errors seriatim in the order set forth in the brief of appellant.

Appellant contends that the offenses of which he stands convicted, namely, contriving, proposing or drawing a lottery, or assisting in contriving, proposing or drawing a lottery, because they relate to policy, are not punishable under the provision of the Penal Law relating to lotteries. In other words, the contention of appellant is that policy is not a lottery.

The answer to this contention is two-fold. The express language of the Penal Law is concededly broad enough to cover policy. s 1370. Second, that policy is a lottery has been so held not only by this court but by the courts of every other jurisdiction which have been called upon to decide the question. As was said in the highest court of Virginia recently (Abdella v. Commonwealth, 1939, 174 Va. 450, 5 S.E.2d 495, 496): ‘that it (policy) is a lottery is nowhere questioned.’

A lottery is defined in section 1370 of the Penal Law as follows: ‘A scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise or by some other name.’

This is general language comprising every form of lottery of which there have been many forms in the past and will be many forms in the future. Every year human ingenuity is expended in inventing a new form, but in each the fundamental principle is the same, namely, a scheme for the distribution of property in which a valuable consideration is paid on chance alone, with no admixture of skill. It cannot be successfully contended that there arises a need to drew a new statute every time a new device arises for the creation of a lottery. Every scheme for a distribution of property by chance among those who have paid a valuable consideration, is covered by the comprehensive definition in section 1370 of the Penal Law. In the language of the definition of a lottery in the Penal Law there is no reference to specific property. Money is property and ‘The language of section 1370 of the Penal Law and its predecessor has received the broadest interpretation. The sale of a piece of chewing gum for a penny which secured a chance to draw a prize in value according to the number on the package constitutes a lottery * * *.’ People v. Miller, 271 N.Y. 44, 47, 2 N.E.2d 38, 39. Policy is merely another form of such a scheme. Policy as conducted by the combination was a scheme of chance in which the player selected a number containing three figures. That number was written on a slip of paper which was given with the amount bet, to a so-called collector. The winning number was determined each day by chance, generally, in the case at bar, by a computation based upon the moneys paid on the result of horse races at a designated track, subject to the rigging of the last number as above noted. If a player succeeded in picking the winning number, he was paid six hundred times the amount of the bet, otherwise nothing. That such a scheme falls...

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