People ex rel. Sturgis v. Fallon

• Citation: 46 N.E. 302,152 N.Y. 1
• Parties: PEOPLE ex rel. STURGIS v. FALLON, Prison Warden.
• Decision Date: 02 March 1897
• Court: New York Court of Appeals

152 N.Y. 1

46 N.E. 302

PEOPLE ex rel. STURGIS

v.FALLON, Prison Warden.

Court of Appeals of New York.

March 2, 1897.

Appeal from supreme court, appellate division, First department.

Joseph Sturgis was arrested on a charge of violating Pen. Code, § 351, and was committed to jail to await the action of the grand jury. He was discharged on a writ of habeas corpus, and John Fallon, the prison warden, appealed. From a judgment of the appellate division (39 N. Y. Supp. 860) affirming the order of discharge, the warden appeals. Affirmed.

John D. Lindsay and Benjamin Steinhardt, for appellant.

De Lancey Nicoll, for respondent.

MARTIN, J.

The relator was charged by an information filed with one of the magistrates of the city of New York with a violation of section 351 of the Penal Code, in that on October 24, 1895, at the private grounds of the Westchester Racing Association, in the city of New York, he engaged in poolselling and bookmaking, and occupied and used a certain place, with books, apparatus, and paraphernalia, for the purpose of recording and registering bets and wagers. Upon the examination before the magistrate, it was shown that on that day he was upon the grounds of the association with one Orlando Jones, by whom he was employed as clerk. He and Jones, who attended the race for the purpose of making wagers according to his judgment, walked about the grounds together, the latter making bets on the races then in progress, with persons with whom he was acquainted; and the relator, at his direction, entered such bets on sheets of paper belonging to Jones, which were conveniently ruled for that purpose. The prosecution called Jones as a witness, who testified to the distinction between bookmaking and what was done on that occasion. He was admitted to the grounds without charge, as he was the owner of a horse entered for the races, but the relator paid for his admission. Neither Jones nor the relator had any desk, stand, chair, rest, or support of any kind, nor did they occupy any booth, tenement, building, or part thereof, or any particular spot upon the grounds. Nor did either exchange any money with any person making a wager with Jones, or exchange, deliver or transfer to any one with whom a wager was made, any record, memorandum, or document of any kind, or subscribe, by name, initials, or otherwise, any record, registry, or memorandum in the possession of another of any bet or wager, to be retained by such other or any person as evidence of a bet or wager. No odds were posted, money exchanged, or memorandum of any kind received, delivered, or transferred. Upon these facts the magistrate decided that the relator had violated section 351 of the Penal Code, and held him to answer therefor. A writ of habeas corpus was then obtained, and also a certiorari to review the decision of the magistrate. Upon the hearing in the court of oyer and terminer, the relator was discharged.

As the propriety of the decision in this case is largely, if not wholly, dependent upon the validity of section 17 of chapter 570 of the Laws of 1895, which is claimed by the appellant to be unconstitutional and void, it may be well, at the threshold of this examination, to refer to the provision of the constitution with which it is said that that section of the statute is in conflict. Section 9 of article 1 of the constitution of the state declares: ‘Nor shall any lottery or the sale of lottery tickets, poolselling, bookmaking, 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.’ In May, 1895, the legislature, with the ostensible, if not the actual, purpose of complying with this command of the constitution, passed several statutes relating to those subjects, being chapters 570-573 of the laws of that year. Chapter 570 is an act for the incorporation of associations for the improvement of the breed of horses, to regulate the same, and to establish a state racing commission. It provides for the incorporation of such associations, for the payment of their capital stock, and makes other provisions, to which it is unnecessary to refer at this time. It then provides that such corporations, upon complying with the provisions of that act, shall have the power and right to hold one or more trotting or running race meetings in each year, and to hold, maintain, and conduct trotting or running races at such meetings; that at such meetings the corporation, or the owners of horses engaged in such races, or others who are not participants therein, may contribute purses, prizes, premiums, or stakes to be contested for; that no person other than the owner of a horse contesting in the race shall have any pecuniary interest in the prize, or be entitled to receive any portion thereof after the race is finished, but the whole shall be allotted in accordance with the terms and conditions of the race. It then provides for a state racing commission, defines its duties and powers, and makes other provisions which need not now be considered. Then it declares: ‘Sec. 16. All racing or trials of speed between horses or other animals for any bet, stake or reward, except such as is allowed by this act, or by special laws, is a public nuisance; and every person acting or aiding therein, or making or being interested in such bet, stake or reward is guilty of a misdemeanor; and in addition to the penalty prescribed therefor he forfeits to the people of this state all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other property betted or staked upon the result thereof.’ Then follows the section which the appellant claims to be unconstitutional, which reads: ‘Sec. 17. 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, or document of any kind whatever as evidence of any such bet or wager, or the subscribing by name, initials or otherwise, or 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.’ Chapter 571 amends section 343 of the Penal Code, which makes it a misdemeanor to keep a gaming and betting establishment, while chapter 572 amends section 351 of the Penal Code so as to read: ‘Sec. 351. 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, 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,...