People v. Stedeker

• Decision Date: 28 April 1903
• Parties: PEOPLE v. STEDEKER et al.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 57

67 N.E. 132

PEOPLE

v.STEDEKER et al.

Court of Appeals of New York.

April 28, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Leon Stedeker and others were indicted for keeping a poolroom. From an order of the Appellate Division (78 N. Y. Supp. 316) reversing an order of the court of general sessions sustaining a demurrer to the indictment, defendants appeal. Reversed.John R. Dos Passos and Benjamin Steinhardt, for appellants.

William Travers Jerome, Dist. Atty. (Howard S. Gans and Joseph S. Auerbach, of counsel), for respondent.

Joseph S. Auerbach and Herbert Barry, for interveners.

CULLEN, J.

The appellants were indicted for violating the provisions of section 351 of the Penal Code. The indictment contains three counts. The first charges the appellant with the crime of keeping and occupying a room for the purpose of recording and registering bets and wagers and of selling pools upon the result of horse races and other contingent events; the second, with the crime of keeping, exhibiting, and employing devices and apparatus for the purpose of recording and registering such bets and wagers and of selling pools; the third, with the crime of keeping and occupying a room with books, papers, apparatus, and paraphernalia for the purpose of recording and registering such bets and wagers and of selling pools. To this indictment the appellants demurred on the ground that it failed to state facts sufficient to constitute a crime. The principal objection urged by the appellants is that the section of the Penal Code referred to is unconstitutional and void because of the great difference between the punishment of offenses by that article when committed without the grounds of any racing association and that imposed by the racing law on the same acts when committed on the racing grounds. But the constitutionality of the racing law and of the provisions of section 351 of the Penal Code has been so recently affirmed by this court-the former in the case of People ex rel. Sturgis v. Fallon, 152 N. Y. 1, 46 N. E. 302,37 L. R. A. 419, and the latter in People ex rel. Weaver v. Van De Carr, 150 N. Y. 439,40 N. E. 1040-that we deem it not necessary or wise to reopen the discussion, and shall confine ourselves to an examination of the objections to the form of the indictment.

It is contended that the first count is defective in failing to allege that defendants kept and occupied a room with books, papers, apparatus, or paraphernalia, for the purpose of recording bets or wagers. The objection is well taken. The statute makes the presence of the books or apparatus an essential ingredient of the felony defined by it.

It is urged against all the counts that they are not sufficiently definite, in that they fail to specify the particular house or building in the city of New York in which the defendants are charged with keeping and occupying a room for the purposes forbidden by the statute. This objection was not well taken. It is sufficient that the indictment charged the facts constituting the offense, and the place where it was committed as within the jurisdiction of the court. People v. Buddensieck, 103 N. Y. 487, 9 N. E. 44,57 Am. Rep. 766. If there were any question as to the particular place where it is charged that the offense had been committed, by which the appellants could be in any way misled or prejudiced in their defense, the remedy was by motion for a bill of particulars. Tilton v. Beecher, 59 N. Y. 176, 17 Am. Rep. 337.

We are now brought to the serious question presented as to the form and sufficiency of the indictment. By section 351 it is enacted that any one who commits any one of the acts which are thereby forbidden ‘is guilty of a felony, except when another penalty is provided by law, and upon conviction is punishable by imprisonment in the State Prison for a period not less than one year, nor more than two years or by such imprisonment, together with a fine not exceeding two thousand dollars.’ It will thus be seen that the forbidden acts do not constitute a felony in all cases, nor, in fact, in any case, unless there is no other penalty provided by law for their commission. The appellants contend that the acts charged against them are subject by other statutes to specific penalties.

The first claim is that the provisions of the Revised Statutes which authorize the recovery of money lost on a wager thereby create a penalty for the offense of gambling. The decisions of this court are to the contrary. In Meech v. Stoner, 19 N. Y. 26, it was held that the claim for money so lost was assignable; and in Ruckman v. Pitcher, 20 N. Y. 11, that the claim bore interest. Both decisions proceeded on the ground that the statute was remedial, not penal; that, the statute having made wagers void, the loser never parted with the title to his money; and that his suit was to recover only his own. It is also to be observed that these provisions relate to the subject of betting or losing money at play or on a wager, not to the maintenance of a house or establishment for gambling, which, substantially, is the offense with which the defendants are charged. There has always been observed a distinction between betting or gambling and maintaining a gambling house, or a place to which people resorted to gamble. While at common law wagers on indifferent subjects were legal and might be enforced, a gambling house, or a resort for gamblers, was a public nuisance, for which its keeper might be indicted. Wharton, Crim. Law, § 2446. The same distinction has obtained in this state, where ordinary betting has never been made a crime, though in some cases subject to small pecuniary mulcts, while the keeping of a gambling house, selling lottery tickets, and the profession of a common gambler have been subjected to severe punishment.

It is next contended that section 343 of the Penal Code prescribes a penalty for the appellants' offense, by enacting ‘that any one who shall keep a room, shed,’ etc., ‘to use for gambling, or for making wagers made to depend upon any lot, chance,’ etc., ‘shall be guilty of a crime.’ Doubtless bookmaking, pool selling, and like acts enumerated in section 351, are merely species of gambling; and the terms of section 343, if the section stood alone, would comprehend these offenses. But it must be borne in mind that the three statutes were passed on the same day-May 9, 1895. The first of these (Laws 1895, p. 370, c. 570) enacted the racing law; the second (Laws 1895, p. 378, c. 571) amended section 343 of the Penal Code so as to present it in its present form; and the third (Laws 1895, p. 379, c. 572) similarly modified section 351 of the Penal Code. These two sections of the Penal Code must be construed in harmony; otherwise the latter section would be rendered substantially ineffective. Thus interpreting the sections, we think that section 343 must be held to embrace only cases not specifically provided for by section 351. So construed, section 343 does not prescribe any penalty for those of offenses.

We are now brought to a consideration of the effect of the racing law upon the provisions of section 351. While, as was said in People ex rel. Sturgis v. Fallon, supra, we cannot presume that this law was enacted to evade or defeat the provisions of the Constitution that no pool selling, bookmaking, or other kind of gambling shall be authorized or allowed within the state, still the provisions of that law must be most carefully examined, since, though they do not authorize certain kinds of gambling on the race course (the Constitution would forbid that), they punish it with merely a civil liability, while the same gambling under other circumstances or at other places than the race track is made a felony. It is a matter of the greatest concern to the offender whether he is merely liable to be sued for the amount of the bet or wager, or may be imprisoned in the State's Prison and rendered infamous as a felon. This great difference in punishment is based upon but slight distinction in the offense, and therefore it is necessary to ascertain with exactitude what elements constitute one offense, and what the other, in order to determine whether the acts charged against the appellants are, or under certain circumstances may be, under the terms of the racing law, subject to the exclusive penalty provided by that act, to wit, a loss of the amount of the wager, or not. The subject of betting on racing grounds is dealt with by sections 17 and 18 of the act mentioned. By section 17, any person who, on an authorized race course, makes or records any bet or wager on a contest taking place on such course, forfeits the amount wagered or received by him, to be recovered in a civil action by the person with whom the wager is made. The penalty is made exclusive of all others prescribed by law, 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, of 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.’ By section 18 a similar provision for an exclusive penalty is imposed upon any one who makes or records any sale or purchase of any pool or interest therein on any contest taking place on the course. It will thus be seen that the effect of these two sections is to relieve any person who either makes or records a bet, wager, or pool upon the race course from any liability to punishment, except the recovery by the other party of the money bet or deposited. There is but one qualification on this exemption-that no record or registry of the bet shall be delivered to the other party, or to some third person for him. In other words, the question whether the offender is a felon or not depends upon...