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TEXT OF AN INTELLIGENT DECISION Justice Bischoffs Analysis of the Intent and Effects of the HartAgnew Law Following is the full decision of Justice BiscliofT of the Supreme Court of New York handed down in the habeas corpus proceedings for the release of Melville Collins arrested for making an oral bet at Sfievpsliiiid Bay BayThe The relator is charged with 1 violation of Sec ¬ tion 351 of the renal Code in that he received 5 as the result of a bet upon a horse race at the race course of the Brooklyn Jockey Club on June 1C 1UOS the bet having been made and accepted orally with one John Rail RailThe The provisions of Section 851 of the Penal Code are not now With the exception of certain changes in the penalty and in the matter of exemptions the language has remained unaltered since the year 1895 and while by Chapter 000 of the Laws of 1908 the existing statutory exemptions and transactions upon race tracks from the operation of Section 331 as removed the definition of the criminal acts to which the statute applies hid for thirteen years the same place in our criminal law which it has today todayIn In this proceeding I am to determine whether the successful bettors receipt of the money or thing wagered is made a crime by the section referred to which reads as follows Section 351 Poolselling bookmaking bets and wagers etc Any person who engages in poolselling or bookmaking at any time or place or any person who keeps or occupies any room shed tenement tent booth or building float or vessel or any part thereof or who occupies any place or stand of any kind upon any public or private grounds within this state with books papers apparatus or para ¬ phernalia for the purpose of recording or register ¬ ing bets or wagers or of selling pools and any person who records or registers bets or wagers or sells pools upon the result of any trial or contest of skill speed or power of endurance of man or beast or upon the result of any political nomination appointment or election or upon the result of any lot chance casualty unknown or contingent event whatsoever or any person who receives registers records or forwards or purports or pretends to receive register record or forward In any manner whatso ¬ ever any money thing or consideration of value bet or wagered or offered for the purpose of being bet or wagered by or for any other person or sells iwols upon such result or any person who being the owner lessee or occupant of any room shed tenement tent booth or building float or vessel or part thereof or of any grounds within this state knowingly permits the same to be used or occupied for any of these purposes or therein keeps exhibits or employs any device or apparatus for the purpose of recording or registering such bets or wagers or the selling of such pools or becomes the custodian or depository for gain hire or reward of any money property or thing of value staked wagered or pledged or to be wagered or pledged upon any such result or any person who aids assists or abets in any manner in any of the said acts which are hereby forbidden is guilty of a misdemeanor and upon conviction is punishable by imprisonment in a penitentiary or county jail for a period of not more than one year yearThe The particular words pointed to by the respon ¬ dent as applicable to the present case are or any person who receives registers records or forwards or purports or pretends to receive register record or forward in any manner whatever any money thing or consideration of value bet or wagered or offered for the purpose of being bet or wagered by or for any other person or sells pools upon any such result and the contention is that these words define the criminality of the relators receipt of his winnings when read Any person who receives any money bet or wagered by any other person upon any such result etc etcFor For the purpose of determining the intention of the legislature when adopting a statute it must necessarily be read as a whole Only when so read can the conclusion be reached whether Isolated words of the text may or may not properly be placed to ¬ gether in such a sense as to cover a particular case caseAccording According to the rule of construction prescribed by the Penal Code Section 11 the fair import cf the statute under consideration is to be the measure of its application and as I have read the words employed I cannot hold that Section 351 fairly im iwrts that a bet or the receipt of the tiling Wagered is a crime crimeThe The whole scheme of the section appears upon a reasonable reading to relate to bookmaking and poolsplling that is to the business of taking and recording bets and wagers and to acts which are incidental to that business businessThe The very words of the clause under which the relator is held would seem Indeed to exclude the meaning that the bet received described money won as the result of a bet since from the context It is apparent that what is contemplated is the act of receiving registering recording or forwarding the subject of a wager as yet undetermined before not after It is won or lost lostThe The words by or for any other person in this clause may be taken as a matter of grammatical construction to qualify either any person who re ¬ ceives etc or any money bet or wagered but it cannot qualify both and it is only upon the as ¬ sumption that the relative antecedent of the quali ¬ fying phrase Is the latter that any argument in support of the criminal charge against the relator can be made at all allAs As a matter of reasonable interpretation in view of the apparent purpose of the whole statute how ¬ ever I think that the phrase by or for any other person has reference to the receipt registering recording or forwarding etc not to the money or tiling wrigered wrigeredThis This harmonizes with the general theory and aim of the section while the contrary construction would very materially detract from what the legis ¬ lature evidently designed to accomplish in prohibit ¬ ing the business of bookmaking and poolsellin and in penalizing the acts incident to that business whether done through agents or correspondents or personally by the person conducting the particular business businessTlie Tlie construction contended for by the district attorney requires a strained application of the words employed In the statute contrary to their apparent sense and it is quite clear to my mind that this section of the Penal Code has actually no reference to the case of a bet made between individuals with ¬ out the intermediate oQice of a stakeholder nor to the winners receipt of the money or other thing of value transferred to him by the loser when the event is determined determinedFor For all the years during which this statute has been in force it lias not been deemed applicable to the case of ordinary individual betting Tins people vs Stedeker 173 N Y 5702 the Court of Ap ¬ peals when discussing the condition of the law relative to gaming in this state said There lias always been observed a distinction between betting or gambling and maintaining a gambling house or a place to which people resort to gamble AVhile at common law wagers on indifferent subjects were legal and might be enforced a gamb ¬ ling house or a resort for gamblers was a public nuisance for which its keeper might be indicted Whartons Criminal Law Section 2 44G The same distinction has obtained in this state where ordinary betting has never been made a crime though in some cases subjects to small pe ¬ cuniary mulcts while the keeping of a gambling house selling lottery tickets and the profession of a common gambler have been subjected to severe punishment punishmentThis This opinion was written in the year 1903 eight years after the enactment of Section 51 of the Penal Code in practically its present form and certainly indicates that the broad application now sought to be given to that section had not been con ¬ sidered possibilityAgain a serious possibility Again as this section stood prior to the late amendment which defined the prohibited acts as a misdemeanor any violation of its provisions was a felony To apply it to the case of a single bet be ¬ tween individuals a term of imprisonment was thus to be the fixed punishment for the winning of money at simple hazard yet at the same time the ob ¬ taining of money by cheating at cards or other play was punishable merely as a misdemeanor and so by fine Penal Code Section 339 339Such Such a result is a shock to common sense and the court must look for the reasons for adopting a construction of the statutes which would necessitate it itIt It may not be out of place to note that if this relator is properly charged with a crime because of a construction of Section 351 then every wager on a contingent event If followed by the receipt of something by the winner would place the latter within reach of the criminal law lawThe The consequences of criminality would descend alike upon the successful participant in a rattle conducted for religious or charitable purposes upon the girl whose partisanship for a college has been rewarded by the winning of gloves or candy through its athletic fulfillment upon the messenger who with knowledge carries from loser to winner the tiling won and upon all who bet upon anything except possibly upon a certainty where the bet is paid paidit it may be that since the adoption of the consti ¬ tution of 1S14 declaring the popular will that every form of gamblng lie unlawful tlu legislature should properly proceed to make the simplest bet or hazard a crimp but whatever the devised policy it may be said that as yet that body has not done so and indeed when legislation was proposed at tin last session in the form of an amendment of flu racing law Chap 57 of the Laws of 18 i direqtly pro ¬ hibiting Individual bets upon the result of a horse race and punishing a violation by imprisonment Assembly Bill No 213 January IS 1908 the pro ¬ posed amendment did not become a law lawBecause Because the provisions of Section 5I of the Penal Code do not in their fair import prohibit the j act with which the elator is charged according 41 Ihe views expressed in this memorandum and there being no charge of a violation of any other penal statute he is entitled to his discharge from ens tody
