People v. Cadle

• Decision Date: 17 December 1958
• Parties: The PEOPLE of the State of New York, Appellant, v. Carlton CADLE, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 576

180 N.Y.S.2d 576

7 A.D.2d 65

The PEOPLE of the State of New York, Appellant, v. Carlton CADLE, Defendant-Respondent.

Supreme Court, Appellate Division, Fourth Department.

Argued Nov. 10, 1958.

Decided Dec. 17, 1958.

Harry L. Rosenthal, Dist. Atty., Monroe County, Rochester (Leon N. Armer, Rochester, of counsel), for appellant.

George Hoffenberg, Rochester, for defendant-respondent.

Before McCURN, P. J., and WILLIAMS, BASTOW, GOLDMAN, and HALPERN, JJ.

WILLIAMS, Justice.

This is an appeal from an order of County Court which allowed a demurrer to an indictment and dismissed the same.

The indictment, in two counts, charges violations of Secs. 1370, 1372 and 1376 of the Penal Law. These sections, dealing with lotteries, read as follows:

' § 1370. * * * A 'lottery' is a scheme for the distribution of property by change, 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.'

' § 1372. * * * A person who contrives, proposes or draws a lottery, or assists in contriving, proposing or drawing the same, is punishable by imprisonment for not more than two years, or by fine of not more than one thousand dollars, or both.'

' § 1376. * * * A person who offers for sale or distribution, in any way, real or personal property, or any interest therein, to be determined by lot or chance, dependent upon the drawing of a lottery within or without this state, or who sells, furnishes, or procures, or causes to be sold, furnished, or procured, in any manner, a chance or share, or any interest in property offered for sale or distribution, in violation of this article, or a ticket or other evidence of such a chance, share, or interest, is guilty of a misdemeanor.'

The indictment sets out substantially the statutory language of the above sections and then continues: 'Those participants who desired to sit down in order to participate in the lottery known as 'Bingo' conducted by defendant signed for the receipt of a folding chair, and paid to the defendant the sum of One Dollar ($1.00) and were immediately issued a folding chair; upon entering the room in which the lottery known as 'Bingo' was continued and conducted by the defendant, the participants each received a board on which were printed six 'Bingo' cards, each * * * headed 'Bingo'.'

It is defendant's contention, and the County Court apparently so decided, that the indictment fails to allege the payment of any consideration and therefore that no lottery took place.

Upon a demurrer the facts stated in the indictment must be assumed to be true (People v. Decina, 2 N.Y.2d 133, 139, 157 N.Y.S.2d 558, 564, 138 N.E.2d 799, 803), as well as everything that can be implied by fair and reasonable intendment from those facts (People v. Wright, 12 Misc.2d 961, 964, 173 N.Y.S.2d 160, 164). Further: 'The indictment is sufficient, if it identifies the charge against the defendant, so that his conviction or acquittal may prevent a subsequent charge for the same offense; notifies him of the nature and character of the crime charged against him to the end that he may prepare his defense; and enables the court upon conviction to pronounce judgment according to the right of the case.' People v. Farson, 244 N.Y. 413, 417, 155 N.E. 724, 725. The indictment is to be construed liberally rather than in a technical or impracticable manner. So long as no substantial right of the defendant is prejudiced, the court should take a liberal approach and look to the realities of what the indictment alleges (People v. Williams, 243 N.Y. 162, 164, 165, 153 N.E. 35, 36). At the very least, the allegation in the indictment as to the payment of $1 by 'participants' who desired to sit down raises a question as to what this was consideration for. Defendant argues that, on its face, it is payment for the use of the seat, but, as is pointed out cogently in People v. Williams, 202 Misc. 420, 423, 113 N.Y.S.2d 167, 171:

'It is apparent, that this defendant has attempted to contrive a scheme or plan, whereby, he can conduct a Bingo game for profit and circumvent the Law. When we say, that a participant in this game was admitted free to play Bingo as a standee, and that money was only obtained from the rental of chairs, it might seem upon a cursory examination of the facts, that the player was only paying for a chair. However, he was not paying merely for the privilege of sitting down; he was paying for a chair at a bingo game. If the lottery was not furnished, there would be no reason for him to rent the chair, therefore, the lottery becomes a part of the consideration for the payment of the $2.'

The purpose of the $1 payment seems fairly clear, but at least its determination should await proof at trial. Certainly it cannot be said that the payment by 'participants' was not consideration for a lottery as a matter of law.

In People v. Cadle, 202 Misc. 415, 417-418, 114 N.Y.S.2d 451, 454, the language of the information appeared to be substantially the same as in the indictment before us. The court said:

'Surely one can draw the inference, especially from the language used in the information charging a conspiracy, that the element of 'consideration' was lacking as regards the persons who participated in the game while standing but it is not believed that the court has any legal right to...