People v. Bright

• Decision Date: 03 October 1911
• Citation: 96 N.E. 362,203 N.Y. 73
• Parties: PEOPLE v. BRIGHT.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 73

96 N.E. 362

PEOPLE

v.BRIGHT.

Court of Appeals of New York.

Oct. 3, 1911.

Appeal from Supreme Court, Appellate Division, Third Department.

Albert Bright was convicted of being a common gambler, and from a unanimous affirmance by the Appellate Division (140 App. Div. 945,125 N. Y. Supp. 1136) he appeals. Affirmed.John H. Gleason, for appellant.

Rollin B. Sanford, Dist. Atty., for respondent.

WILLARD BARTLETT, J.

Section 970 of the Penal Law provides that a person ‘who engages as dealer, game-keeper, or player in any gambling or banking game, where money or property is dependent upon the result,’ is a common gambler, and punishable by imprisonment for not more than two years, or by a fine not exceeding $1,000, or both.

The indictment charged that Albert Bright, on the 2d day of March, 1910, at the city of Albany, was a common gambler, and in a certain room in a certain building, known as No. 426 Broadway, unlawfully and feloniously did engage as dealer and gamekeeper in a certain gambling game where money was dependent upon the result, to wit, a certain gambling game commonly called draw poker, consisting of certain gambling tables, cards, chips, devices, and apparatus for gambling, a more particular description of which was to the grand jury unknown, and could not then be given.

[1] Upon the issue joined by his plea of not guilty, the defendant went to trial and was convicted, and the judgment upon the conviction has been unanimously affirmed by the Appellate Division. Under the Constitution, the unanimous affirmance requires us to assume that the proof sufficed to establish every element of the crime charged in the indictment.

Only one witness was called in behalf of the people. He testified to having participated with the defendant in playing a game of draw poker for money, on the 2d day of March, 1910, at No. 426 Broadway, in the city of Albany. When the people rested, and also at the close of the defendant's case, counsel for the defendant moved for a dismissal of the indictment, on the ground, among others, that the jury could not be permitted to convict upon the testimony of an accomplice alone. Code Cr. Proc . § 399. The motion was denied in each instance, and the defendant duly excepted. These exceptions do not survive the unanimous affirmance. There is one exception in the record, however, which suffices to raise the question whether the sole witness against the defendant was an accomplice. This is an exception to the refusal of the learned county judge to charge ‘that if the jury find that the people's witness was an accomplice their verdict must be a verdict of acquittal.’ There is no suggestion that this witness was in any manner corroborated, and if there was any evidence from which the jury could have found that he was an accomplice the defendant was entitled to have this instruction given. ‘A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.’ Code Cr. Proc. § 399.

The statute under which the defendant was indicted condemns as a common gambler any person ‘who engages as dealer, game-keeper or player in any gambling or banking game where money or property is dependent upon the result.’ The indictment is directed against the defendant, not for engaging as player in a game of draw poker, but for engaging therein as dealer and game-keeper. The evidence indicates that it was not merely as a player that he participated. The game was played with colored chips; each chip representing a certain sum of money, determined by the color. These chips or checks were ‘edged up’ by the players toward the center of the table, and then, ‘before the hand was opened,’ sometimes the defendant and sometimes another party took off one or two checks, and placed them in front of him in a separate pile from the checks he was playing with. The inference sought to be drawn from this evidence was that the defendant thus reserved to himself a percentage over and above any of his winnings as a player, upon the amount at stake in each game where he so withdrew one or two chips. This action on the defendant's part distinguished his conduct from that of the people's witness and all the other players, except the other party, who is described as having likewise withdrawn checks ‘at the time the pot was made up,’ to quote the language of the witness. The jury was justified in finding that such a proceeding brought the defendant within the purview of the statute as one who was thus engaging as game-keeper in a gambling game, provided the sole witness, whose uncorroborated testimony was relied on to establish the charge, was not an accomplice.

[3] It is plain that he was not an accomplice in the sense of being also a game keeper within the meaning of the statute. According to the evidence the only such gamekeepers present were the defendant and the other party who has been mentioned. Each participant in every game of poker that was played, however, on the occasion in question, acted as dealer when it became his turn to deal. The charge in the indictment is that the defendant ‘did engage as dealer and game-keeper’ therein; and hence it is argued that the defendant and the people's sole witness must be...