Betting And Its Status In Law.: An Able Dissection of Its Moral Aspect and Misdirected Statutes Hostile to It., Daily Racing Form, 1908-05-15


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BETTING AND ITS STATUS IN LAW An Able Dissection of Its Moral Aspect and Mis ¬ directed Statutes Hostile to It John H Dos Passos a lawyer of high standing and practice in New York has prepared and printed lu the New York Sun his opinion and views on the general question of gambling under tlie laws of the state and suggested that the best test would be a topular vote on the alwlition of race track gam ¬ bling blingDiscussing Discussing the moral question involved Mr Dos Passos said saidSo So far as my observations are concerned few public officials in the stale of New York have treated the subject of gambling with frankness and broadness I was going to say intelligence The mere politician regardless of the inherent nature of the question shapes his views to meet temporary sentiment The clergyman attunes his sermons in the impracticable key of absolute annihilation of this vice The result is mistakes by legislators and oilicials who have to deal with it and utter misapprehension by the general public To the legis ¬ lator truly anxious for the welfare of the people nothing otters more ditliculty than tlie treat ¬ ment of the subject of gambling It is a vice in ¬ herent in the human system It is not what is called a crime inaluin in se wrong in itself but it is sometimes declared to be an offense because the predominating moral sense of the community con ¬ demns it as detrimental to its welfare just as swearing expectorating in public places violation of the building laws and tlie like acts are forbidden Crimes mala in se imply inherent moral turpitude those mala prohihita such as gambling imply mis ¬ conduct No writer of merit and distinction so far as my reading extends lias ever claimed that in the abstract it was immoral to bet Lecky whose rank as a scholar and moral philosopher is indisput able says Gambling is not in itself a crime Few moralists will pretend that a man Is committing an immoral act if lie stakes a few pence or shillings on a game of chance1 Jeremy Rcntham whom 1 may call the great legal diagnostician advocates hotting on certain lines And wagers in general by the common law were lawful contracts Today in the state of New York it is not ti crime for individuals to gamble In fact gambling for small sums seems to be expressly sanctioned because if one wins or loses less than 25 within twentyfour hours a recovery cannot be had under Section II of the Penal Code in a civil action for tht benelit of the poor If h loses or wins over 25 within such period lie is liable to this penalty but he commits no crime crimeHonest Honest gambling Is by the statutes of New York enforced and cheating frowned upon for un ¬ der tlie Otb section of the Penal Code one who by fraud or false pretense while playing at any game or while having a share in any wager played for or while betting on the sides or hands of such a play wins or acquires to himself or to any other a sum of money or other valuable thing is guilty of mis ¬ demeanor demeanorAgain Again no law prevents a citizen from gambling in his own house No otliccr can break into his castle and interfere with such an act and no legis ¬ lature would dare to make a law by which the privacy and sacredness of home life domesticity could be invaded Such a licentious act for it would be fiothing else would put an end to the fundamental principles of social organization pro ¬ tecting personal security Cut a citizen cannot com ¬ mit a murder or robbery in his house and this illustrates the distinction between crimes mala in se wroijg in themselves and acts mala prohibita wrong because prohibited That it is foolish for in ¬ dividuals to gamble who cannot afford to lose their money goes without argument and that public gambling should be controlled by proper legislation is universally acknowledged It is a venial act however and should lie discriminatingly treated and mildly punished Gambling is a principle in human nature It belongs to us all says the immortal Burke BurkeDiscussing Discussing the present state of the laws in this state insofar as they affect gambling Mr Dos Pas ¬ sos continued continuedThe The laws upon the subject of gambling in tlie state of New York are superbly inconsistent and as well from that cause as from the Indulgence and habits of the people are practically unenforceable The constitution of New York provides Nor shall any lottery or the sale of lottery tickets pool sell ¬ ing bookmaking or any other kind of gambling hereafter be authorized or allowed within this state and tlie legislature shall pass appropriate laws to prevent offenses against any of tlie provisions of this section This is very broad language and if the legislature In its discretion were to say an appropriate law to prevent these offenses would l e the indict ion of a fine or penalty of 5 for each offense who could complain complainAsk Ask any inqmhcr of the constitutional convention at which this article was framed for the history of its passage and he will tell you that it was put forward as a mere piece of partisan bluff each iwlitical side represented in tlie convention seeking to outdo its rival fr a show of excessive virtue and the gambling clause was cast forth without any particular advocacy by anybody and with no hope that it would eventually be adopted by the people Indeed the provision should have found no place in the constitution at all for the reason that a con ¬ stitution of government is not a body of laws To confuse them is to impair the authority of both If that principle needed illustration the selection of such a subject as gambling in any of its forms would conspicuously afford it To the student of institutions itTcads like a travesty As it is tlie whole subject seems to be left to the discretion of the legislature and this was the view adopted hi the Court of Appeals AppealsI I argued the Stedeker and The Allen cases In the Court of Appeals These cases had to do with the construction of the 351st section of the Penal Code under which they were proceeded against That law is a species of net which drags in all of tho cases covered by antecedent sections and undertakes to make the crimes of pool selling and hookmaking felonies The distinction between misdemeanors and felonies in New York is that tlie former is punished by Imprisonment in a peniten ¬ tiary for one year or less or a fine After the Imprisonment is over the law Is satisfied A felony Is totally different The convict is consigned to state prison His character is tattooed for life with tlie brand of crime He can never vote one of the most important attributes of citizenship nor can he ever hold any office of trust or profit When the nature of the offense of gambling is considered when it Is compared with other crimes more heinous the punishment and degradation at ¬ tending its commission is out of all proportion It throws the necessary grades and balances of crimes and punishment into complete disorder disorderAsked Asked his views of Governor Hughes attitude Mr Dos Passos said saidWo Wo find Governor Haghes without taking heed of the subject as a whole the inconsistencies and Incongruous provisions of the law upon gambling concentrating his whole personal and ofllclal Influ ¬ ence to have all race track betting abolished and henceforth all acts of gambling Connected there with to be made felonies I venture x to believe Continued on second page BETTING AND ITS STATUS IN LAW Continued from first page with great respect that the learned governor has entered the arena without giving full study to the question in its relation to other offenses If legis ¬ lation is deemed iinitortaut In thU regard the offense of gambling should be punished by a tine or made a misdemeanor and not a felony Governor Hughes in his enthusiasm apparently tliiiiks that gambling is one of the most heinous crimes that exist In the calendar and hence he pays no attention to the dis ¬ tinctions which I have pointed out In the argu ¬ ments which 1 made iu the Court of Appeals upon these questions I assailed the 3 lst section of the Penal Code because it created a discrimination iu favor of betting oil The race tracks and against the poolrooms making the latter felonies J firmly be ¬ lieve that the 351st section should be repealed and that no law should be made wlueh will hereafter constitute gambling of any sort a felony instead of a misdemeanor misdemeanorThe The punishment for gambling under the 351 t section of the Penal Code is more severe than that provided for offenses of greater moral dereliction or public wrong such as embracery Improperly influ ¬ encing a juror section 75 Penal Code conspiring to commit a crime section 1CS Penal Code in ¬ decent exposure section 1CS Penal Code petit larceny section 535 Penal Code which are all misdemeanors misdemeanorsThe The congress of the United States followed the ordinary course of domestic and foreign legislation In this respect and we find that it provided that the act of gambling should be punished by a fine of 500 or imprisonment of not more than ninety days or both This places the offense In the grade of misdemeanors For some reason or other best known to Governor Hughes lie lias abdicated his functions as an executive otllcer of this state and has gone upon the stump to carry out his policy to have all gambling punishedIt on race tracks bitterly punished It seems to me with all respect that the first thing that the legislature should do is to repeal the 351st section of the Penal Code under which no con j victions I believe cau be sustained against per 1 sons who keep poolrooms because of its unusual severity I do not find from an examination of the daily papers that there Is any great public sonti 1 incut back of Governor Hughes movement Of j course everybody will go to hear him speak and applaud him because tho Americans are very polite and are very fond of cheering They look upon these performances as a species of circus and when Mr Bryan at the last election made speeches through the country the places where he received the most applause where he thought he was most effective gave strong majorities against him There are always individuals iu a community consisting of sen ¬ sational preachers and hybrid societies ready to enter into a crusade for the extirpation of vice It is most beautiful in theory but iu practice it is im ¬ possible and visionary What we need is to make these venial acts such as gambling prostitution and rum drinking as innocuous as possible and a true legislator and humanitarian can do no more If the people of this state are in favor of the abolition of race track betting let it be attested by a pleblseitum a rousing public vote In the mean ¬ time I regard this movement if successful as merely chasing a rat out of one hole into another

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