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JUSTICE HOYTS MAHONEY CASE DECISION The decision of Justice Hoyt of the Special Ses ¬ sions of New York in tlie case against Charles Ma Vmiey manager of the Hoffman House was even stronger than those of Justices Bischoff and Q ay nor jind follows the latter in his opinion that if if man iiloes not make a business of making bets he is not i common gambler and does not violate the law The decision was handed down after Assistant Dis ¬ trict Attorney Nott and John B Stanchfield counsel for Mahonev had submitted briefs It was a ttst cnse brougfit by District Attorney Jerome and se Jected by him Justice Hoyts opinion which Js concurred in by Justices Wvatt and Zeller Is as follows followsThe The facts in this case are undisputed It appears from the testimony that on the igth of July ItiOS at l4i p in one Herzog approached the defendant who was standing beside the cigar counter in the cafe of the Hoffman House and calling him by name said Mahoney 1 want you to take a bet The defendants reply to this remark was inaudible Unit Herzog thereupon wrote out a memorandum which was submitted in evidence and which read an follows July 10 1OS Enlield 30 straight 5 race tO place Paid 5 race Nelson II Horzog HorzogThe The statute which Mahoney was charged with violating Is not of recent enactment and the amend ¬ ment of 190S has no bearing save that the offense bus been made a misdemeanor instead of a felony Tlie court says saysThis This case therefore presents no unusual fea ¬ tures and we are required to decide it strictly upon she evidence In the same manner as many other itses of a similar character have been decided in the past in the various courts of the state Tlie obvious intention of section C 51 of the i enal code Js to prohibit the business1 of bookmaklng or pool Helling and to make any participation in such business crime Mere Individual betting unconnected with arrvlng on the gambling business has been decided mrt to constitute in itself a violation of the statute Mr Justice Gaynor said An ordinary bet is not n Time whether made in the parlor or on the golf links or at a race track nor is the making of a note or memorandum thereof but if you hold your wlf out to bet and bet with all comers or generally nr become a general recorder of such bets or of bets between others you are guilty of a crime crimeThe The case resolves itself therefore into the sim ¬ ple question of whether the defendant was guilty if anything further than the participation and the making of an individual bet From the evidence in the case we are forced to reach the conclusion iliat he was not No books paners or other para ¬ phernalia for the puriwse of recording bets were found In his possession nor was any evidence Intro ¬ duced showing the commission of other acts of a slinllar nature by the defendant AWo are not by any manner of moans of the opinion thut all these elements must be present to prove fl violation of the statute We do believe however that to hold a man guilty of a crime some ¬ thing more must be shown than the mere receipt ot a sumyof money and the admission that It re ¬ ferred to a bet of some kind There must be some evidence which would justify the court in presuming that the defendant was engaged in the business of recording bets and wagers and in acts which are Incidental to that business Participation in such a business may be shown in a number of ways Hint in the present case proof of that character is entirely lacking lackingDistrict District Attorney Jerome said that no appeal was possible nnd that he was sorry that he had not had Ihe chance to argue the case In the Supreme Court on a writ of habeas corpus As to the effct of the decision upon bookmakiiig in the county Mr Jerome refused to give an opinion
