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JUDGE ASPINALLS DECISION. New York. June 10. -Justice Aspinall. in denying the motion of attorney John 1$. Staiichticld for the dismissal of the indictments found by the Kings CoiuiIn grand jurv last Sepleiiibcr against the .oiiey Island Jockey Club, the Drooklyn Jockey Club and nineteen others, including several Iiiil-.erlon men. I kmaK.-is and Polite Inspector John J. OBrieu and two members of his Staff and dismissing the demurrer intei|Hised by the Iwo jockey clubs, in w.iich they set up the content ion that the Hart Agm-w law was unconstitutional, decided that the indict ui.-iits charging conspiracy were properly drnwn nml do not conlli.-t in nliy way with the several provisions of He- seciions iii the Code of criminal Proced ure. He also affirmed Hint tin- bookiunking indict incuts fall well wit Din the provisions of law and are properly drawn. The point made by John R. Stanchficld. attorney for the race track interests, in his argument before the curt was that the Hart Aguew law is union siilutioiial. because Gaeeraof Hughes had no lighi lo call a special election ill the torty -sci lit h sella i-.rial district two rears ago. and that Senator Wal laces presence as a result of that election al lh extn liaary session of the Legislature in July. 1968. was illegal: coiiseniieiilly that chapter SOT of lh. laws ,,f r.H.s. popularl termed the Hart-Agnev. law. was unconstitutional. Senator Wallaces vol. gave il the majoritv of one. ami Governor Hughe-signed the bill. In replv to this District Attorney John F. Clarke declar.-il that the indictments which have been found againsl tin .lelendanls were uol based oil the law ol r.ms which is a dead biter, but oil tin- new penal law. and h.nce there was no need for a tesl of tin llaii-Agnew law: thai lh.- ipicslion of its legality did not enter into the matter before tin- court la anv form, heeaase all tie indictments had been breaajhl under the penal laws of l.iu.l. Mr. Clarke cut. Tided that the Hall Agn.-w law was repealed bv the inaciuient of the new penal laws of 1Mb. Chapter 88 of ihos.- laws specifically repealed it. he declared, and all lh" criminal stalules which had he.n .naeted since 1790 wei-e also repealed by the p. nal laws ulopted in March. V.MC.l. Apparently Justice Aspinall a lew of tin- matter does nol coin iide with Mr. Clarkes on the subject, because In explicitly aaya in his decision that the Hart Agaew law is a valid and binding slntute an. I should be r.-spe.-ieil and obeyed, and. furthermore, that it re ccivi-d a consiituiiorial majority of the lawlul votes in tin- Senile on June 11. liHiv. Hence the law is cnslihitional under the ruling of the court. In d-ir ing the motion to quash the indiclinent-aa the ground that the Hail -Agm-w law is uncoil stiiul ionil. Justice Aspinall says: "The nueslion lo he decided in this motion is Whether the Hart Aguew law passed in the state S.-nal June 11. I.MIS. by a vote of 2d to 25. is in reality a binding statute. •The ilel.iul.iiils claim that it is not. They claim that the I In! I -Aguew law as a matter of eonstilii lioual law uever received a majority of the lawful votes in the Senate, and if il did not. then the l.egislalures adoplioii of the compilation hv the Board of BtatBtory Revision of the contents of the statute h.Miks did not give life and existence as a •tat ate to such law. "In support of this contention the learned attar neys representing the ilclendanls herein have sub milled lo me a very voluminous nnd ehaiislive brief in which tills question is ablv presented and argued. "1 have read and re-read Ilie same with great interest, mid l.nve given this question considerable study and attention, but 1 cannot concur or agree with counsels rensoning or conclusions. "I am of the opinion that the apportionment act of l!Mi7 is constitutional, and that the llnrt gnew bill or hills received a constitutional majority of Unlawful votes in the Senate on June 11. l.ius. and la therefore in reality a valid and binding statute and should he respected and Obeyed. " This conclusion or decision might be argued and written out at great length, but it seems lo me un-nei-i aaary to da so while sitting at a criminal term • I this court and before trial. "1 am n 1 called upon lo decide or pass upon the -ecoiul very inlircsl ing question raised by lln- learaed :eiitlemen representing the defendants. to wit: Whether if in law tin- said bills railed of passage ilie Legislatures adoption of the compilation by the Board of Statutory KcvisMiii of the contents of the statute hooks gave existence as a statute to the "llnrt-Agiu-w law." for the reason that I have already decided that the said bill or hills did not ail of passage, hut did receive a i stitul ional Ilia inily of all tin- lawlul votes in the Senate, ami I therefore leave this interesting nnd very important in.siioM for the higher court- lo deieiinin.-. "The demurrers Interposed by the defendant* to each indictment musi be overruled for the following reasons: "The indictments as to the crime of conspiracy are properly drawn and .1 i mallei in anv way with the provisions ol aeetiana 27.".. 276. 27s and 279 of the Code of Criminal lrocedure and cannot he defeated because ovrl a- Is of bookmakini: ai. alleged. •Ii is well nettled that ii| a trial for eonapir aey in I eaae where an overt ail is necessarv to constitute the crime the defendant cannot be con vhied unless- one or mole overt acts be expressly alleged in the Indictment, nor unless one or mere of the ads alleged be proved. "If the overt act rharjWd be a felony then con spiraea i-; merged in the f. lonv. but where the Priam barged and tl vert act alleged are both of the sane- grad. of liiiMl.-uieanor there can be no merger. ■The beokmaking tadietmenta fall well within the nrovisioiis of law. they contain sullicicnt Information to the defendants of the alleged crime and. in my •pinion, ai.- properly diavvn."
