People v. Williams

• Decision Date: 07 February 1978
• Citation: 93 Misc.2d 726,402 N.Y.S.2d 310
• Parties: The PEOPLE of the State of New York v. James WILLIAMS, Defendant.
• Court: New York City Court

Page 310

402 N.Y.S.2d 310

93 Misc.2d 726

The PEOPLE of the State of New York v. James WILLIAMS, Defendant.

Criminal Court of the City of New York, New York County Arraignment Part.

Feb. 7, 1978.

Robert M. Morgenthau, Dist. Atty., New York County, for the people.

Martin Erdmann, New York City, for defendant.

IRVING LANG, Judge:

In France it is an "escroquerie." In Belgium it is "un jeu essentiellement d'adresse." In England Lord Alverstone of the King's Bench called it "sleight of hand and nothing more." The Canadian court followed England, but the Canadian Parliament outlawed it. American cases are in conflict. Scarne scorns it and Leff ignores it. There are no New York cases on it, but hundreds were arrested for it in New York City in 1977.

It is "three-card monte" and the question to be resolved by this court, previously undecided in this state, is whether it is a known confidence game under New York's fraudulent accosting statute.

The defendant is charged with fraudulent accosting (Penal Law § 165.30). The complaint states that "defendant accosted unknown passersby and engaged in conduct of a kind commonly performed in perpetration of a known confidence game, to wit: three card monte. Deponent further observed defendant receive a sum of USC as a wager from another individual. Deponent . . . observed defendant is in possession of . . . three playing cards."

The statute which the defendant is accused of violating reads as follows:

"165.30 Fraudulent Accosting

"1. A person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud him of money or other property by means of a trick, swindle or confidence game.

"2. A person who, either at the time he accosts another in a public place or at some subsequent time or at some other place, makes statements to him or engages in conduct with respect to him of a kind commonly made or performed in the perpetration of a known type of confidence game, is presumed to intend to defraud such person of money or other property.

"Fraudulent accosting is a class A misdemeanor."

Defendant contends that the complaint fails to allege facts showing an intent to defraud, an essential element of the crime, and therefore should be dismissed.

The people maintain, however, that under subdivision 2 of section 165.30, defendant's conduct is "of a kind commonly performed in the perpetration of a known confidence game . . ." and therefore is presumptively fraudulent, validating the complaint.

Thus, if three-card monte is a "known confidence game" under New York law, the complaint survives the challenge. If not, it must be dismissed.

Webster's Seventh New Collegiate Dictionary (1963) defines three-card monte as follows:

"a gambling game in which the dealer shows three cards and then shuffles and throws them face down before anyone who wishes to pick out a particular card."

Hence it is a variation of the old "shell game" (thimblerig) with cards substituted for cups, under one of which (purportedly but most often not) is a pea.

The skilled monte dealer verifies the adage that the hand is quicker than the eye and provides practical proof of Heisenberg's uncertainty principle. The odds are clearly two to one against the player, but some dealers are so good at this trompe l'oeil that they induce the bettor to specifically pick a wrong card rather than guess one out of three, thus increasing the odds against the bettor. ¹

But it was not merely concern for the player against the monte dealer's legerdemain that caused men like John Scarne to call it "the most popular con game of the old West . . . it is a swindle, not a game . . . ." (Scarne's Complete Guide to Gambling 520-524 (1961)).

Not content to have the odds two to one in their favor, history and practice reveal a number of swindles and hustles in order to insure the operator's success.

"(T)he manipulator of the game frequently became so skilled in his sleight of hand performance that the 'court-card' would be held in the palm of his hand, or slipped up his sleeve, without being noticed by the 'victim,' so that any card the victim picked up from the table was certain not to be the court card, with the result that he was sure to lose." (State v. Terry, 141 Kan. 922, 44 P.2d 258, at 259 (1935).)

Again, the use of confederates or "shills" was and probably is the most frequent form of ripping off the bettor. The shill's participation might range from convincing the player that the dealer is unskilled to pretending to have made a "winning" bet previous to the player (thus causing the dealer to graciously declare a misdeal) to getting the player to believe that the shill has bent the court card and therefore has a sure thing. (For a demonstration of the last variation see Scarne, supra, and The Flim-Flam Man, starring George C. Scott.)

It is, of course, these variations on the basic theme that have caused divergent views of three-card monte in courts throughout the world.

While this state has no reported cases on the character of three-card monte, the game has had a lengthy association with the law in the rest of the Western world. The earliest reported cases interpreting the oldest statute are from France, where "bonneteau" (three-card trick) has been declared an "escroquerie" (swindle) under C.Pen. sec. 405 since 1881. (1882) Receuil Sirey, II, 52 (cour d'appel de Paris, 1881).

Reaffirming this position, the highest French court has said that

"The game consists in shuffling three cards in such a manner as to give the players the illusion of almost certain gain to be had, but which can be realized only at the will of the dealer and not, as is falsely claimed, by chance. By this means, the dealer nourishes the hope of impossible gain" (Bull. Crim. 1027 (1958)).

Opposed to the French view are those of the Belgian and British courts. Belgium, under virtually the same generally worded false pretenses statute (C.Pen. sec. 496), considers three-card monte "primarily a game of skill (un jeu essentiellement d'adresse)." Pasic. III, 224 (cour d'appel de Bruxelles, 1885). However, the conviction was upheld because an abuse of confidence was found in arranging for confederates to win in order to build false hopes among the real players.

England is much less equivocal in declaring "three-card trick" a game of skill. In the leading case of Rex v. Governor of Brixton Prison, 3 K.B. 568 (1912), the King's Bench refused to authorize an extradition to Norway in a monte caper.

As Lord Alverstone, C. J., asserted:

"What is known as the three card trick is a game in which one player backs his ability to indicate the position of a particular card, and the other player by sleight of hand and quickness of movement in manipulating the cards in such a way as to deceive the eye, induces the former to indicate the wrong card. That in my opinion is sleight of hand and nothing more . . . ." (at 570)

Indeed, the English court went further than its Belgian counterpart in holding that "fraudulent conduct whereby the prosecutor is induced to play and which is preliminary to the playing itself is not sufficient to constitute an offense . . ." (p. 570), thereby ruling that any ruse undertaken to lure a player into the game was irrelevant.

Moving further westward, in Canada, Rex v. Rosen, 61 D.L.R. 500 (1920), followed the English case, while citing the Belgian position, supra, and distinguishing French cases based on the differences in the underlying statutes. However, the Canadian Parliament took care of the Canadian court by specifically outlawing three-card monte (11-12 Geo. V. ch. 25, sec. 7 (1921)).

The Canadian statute was preceded in the United States by the actions of several states outlawing three-card monte as an evil in itself. Illinois (Ill.Rev.Stat.1874, p. 348, div. 1, sec. 100), Missouri (1874 Mo.Laws, p. 50, sec. 1), Kansas (1876 Kans.laws, ch. 81, sec. 1), Minnesota (1877 Minn.laws, ch. 130, esp. sec. 4), California (1877 Cal.Stat., p. 8), Montana (1887 Mont.Comp.Stat., sec. 208), the District of Columbia (31 Stat. 1331, ch. 854, sec. 867 (1901)), and Arizona (1913 Ariz.Sess.laws, sec. 533) all made the obtaining of property by playing three-card monte subject to heavy penalties, even in the absence of fraud. Typical is the following:

"Whoever shall deal, play or practice, the confidence game or the game called top and bottom swindle, three-card monte, bunko, or any similar play, game or practice, or practice any confidence trick not mentioned in this section, shall be deemed guilty of a felony" (Ariz.Rev.Code, sec. 4791 (1928)).

No doubt these statutes, except in the District of Columbia, were the result of the widespread operation of three-card monte men throughout the developing American West (Nash, Hustlers and Con Men, 22-24 (1976)). ²

Consequently, all of the American cases considering the character of three-card monte have, until recent times, been grounded in statutes which left no room for deciding whether or not it was a confidence game or swindle but declared it and barred it as one. Thus, in State v. Terry, supra, the Supreme Court of Kansas upheld the dismissal of a complaint holding that "five-card stud poker is not 'any such game, play, or practice' as 'the confidence game or swindle known as three-card monte,' the playing, dealing or practicing of which is made a felony by R.S. 21-930" (44 P.2d 258).

Two relatively recent cases discuss three-card monte under general statutes and come to different conclusions. Metcalf v. State, 205 Tenn. 598, 329 S.W.2d 824 (1959) reversed a conviction and United States v. Edwards, 516 F.2d 913 (8th Cir. 1975) affirmed a conviction. Significantly the fact patterns are distinguishable.

In Metcalf, the defendants were convicted of larceny by trick in "playing a game named Three Card Monte." The victims were soldiers at Fort Campbell, Kentucky, who were met at the entrance gate of the post on pay day by the defendants, who on pretense of...