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PRIVATE BETTING LAWFUL PROSECUTING ATTORNEY IN SHANE CASE CONCEDES IT IN BRIEF FILED Also Contends Tliat Directors of Racing Associations Associationsin in New York State Would Escape Responsibility ResponsibilityUnless Unless Possessing1 Knowledge of Law Violations New York July til TIio peoples brief in the case of Iaul Sliine accused of bookmaking during tlie spring mooting of the United Jlunts Racing As ¬ sociation at Bclmont 1ark Terminal June G against Justice of the 1eaco Charles F Gitting of Hcmp stoad L I on application for a writ of habeas iorpus was lilod Saturday In the Supreme Court it Alinoola yesterday by Assistant District Attorney Charles CountyThe T McCarthy of Nassau County The brief argues that the use of a book or other apparatus does not affect the crime of betting and that Shane who is accused of oral hookmaking without apparatus was just as guilty of betting in the sense of the statute as if lie had had an entire outfit outfitNo No writing or memorandum is necessary to con ¬ stitute the crime insists Mr McCarthy and piotes from the laws of 1110 that any person who en ¬ gaged in pool selling or bookmaKfng with or without apparatus and any person who records bets or wagers or sells jiools or makes book with or with ¬ out writing is guilty of a misdemeanor misdemeanorShane Shane Mr McCarthy continues is not charged merely with making a private Iwt as was argued liy his counsel The information charges public gambling It sets forth that Shane wilfully made liets and wagers with various persons on the grounds that ho placed himself in a secluded spot away from where the horses wore racing and there offered to gamhle with all coiners The bets were recorded by a private memorandum made by the opposite party showing that the science of bookmaking lias advanced to such a staje that the bookmaker can attempt to evade the law by having some one else make the memoranda memorandaThe The directors of the association the brief con ¬ tends could not IKJ held responsible for bookmakins on their grounds unless it was shown that they actually had knowledge of the place being used not ince but continually for purposes of gambling This in reply to the contention of Shanes counsel that if Shane was held guilty of Iwokmaking the directors could be held responsible responsibleThis This case was argued before Justice Townsond Shudder at Mineola June 29 by Surrogate John J Iraham counsel for Shane and by Mr McCarthy fur the people Justice Scudder asked both parties ti submit briefs briefsShane Shane was arrested Juno G at Bolmont Iark Terminal by Deputy Sheriff Michael Williams who Alleged that Shane WHS making oral bets in vio ¬ lation of the IlartAgnew anti betting laws Al ¬ though Slinne had no books or other properties for riciinling bets and gave only memoranda of them MI a slip of paper with pencil it was charged that his constituted bookmaking in the sense of the tatute He was brought before Charles F Gittons justice of the pence of Jlempstcad June IS for ar ¬ raignment but the bearing was posti oncd to July 1 Shane was released in custody of his attorney Surrogate attorneySurrogate Graham on behalf of Shane obtained a ii niporary writ of habeas corpus from Justice Scnd r ordering Justice of the Ieace Graham to appear sniil to show cause why Shane should be held in cus ¬ tody of the justice court This caused the susiien Ion of the case in the lower court until it shall be filled by the Supreme Court If Justice Scudder cides that Shane is illegally held it will mean hat the state has no case against him under the s ntibetting laws and that oral letting does not constitute a violation of the statute Tin brief in part says saysThi Thi facts set forth in the information under liicli the relator is held constitute the crime of iHokiiialing as delined in section 9SG of the penal lan of the state of New York as amended by chap t r 1SS of the laws of 1010 1010The The crime of engaging in bookmaking as set forth in the statute and charged in the information iifaiiK engaging in gambling as a business according to a particular method The method is to publicly liiil and Iny odds to all comers who care to bet on I he result of an uncertain event such as a horse ivcc about to take place on the basis of a plan so tartirely arranged as to cause one party to win as a rule and to cause the other party to lose as a ml This is the substance of the crime which may or may not be attended by the recording of the tran ¬ saction The record if made is merely the evidence if the Mlds quoted and the bets laid so as to aid the memory It is but an incident of the main transaction such as the maintaining of a booth or tent or making use of some other convenient agency to accomplish the result intended intendedThe The vice of Ivookmaking consists in soliciting and In the inducing the public to take chances in the carefully figured and planned scheme of the book ¬ maker People ex rcl Lichtenslelu V Langan 100 N V 200 200The The proposition ns to what was the intent of the Igislature in enacting Chapter 488 of the laws of 1 1 which so far as material to this inquiry pro ¬ vides as follows Any person who engages in pool lling or bookmaking with or without writing at anv time or place and any person who records bets or wagers or soils pools is guilty of a misdemeanor misdemeanorA A disjunctive conjunction separates the various frms and manner of violation of this section as will appear from the reading of the word or in so manv places in the section so that the proposition argued before your honor at the time of the argu ¬ ment that the question of a booth or shed or other apparatus for the commission of the crime charged was a material clement in the commission of the crime of bookmaking Is not tenable tenableIn In this connection we desire to call your Honors attention to the fact that not a single case on this iKiokmaklng proposition cited by the learned counsel on the argument is good law since the amendment of 1010 making It a crime to engage in bookmaking without any writing In the latest expression of opinion from the Court of Appeals on the subject People vs Lambrix 204 N Y 201 which was a prosecution for recording litts previous to the amendment of 1910 Cullon Ch J bv strong inference clearly indicated that the iicision would have been different had the charge lpn bookmaking and the crime have l een committed alter the 1910 amendment for he said It is lo be borne In mind that the offenses with withwhich which the defendant was charged were committed prior to tbe amendment of the penal law innkinr innkinrbookiuaking bookiuaking and pool selling with or without writinj crime Laws 1910 4SS page 204 204As As already said since the decision in the Llch tensteln case 19G N Y 200 the Legislature has mended the nenal law section here involved so as to make It a crime to engage In poolselling or book making with or without writing but It has not changed In any respect the law as to recording or registering bets betsThe The crime charged In the case at bar Is not record ¬ ing bets or wagers which must be in writing both before and after the 1910 amendment As Judge Cnllen points out the amendment did not change the law as to recording bets or wagers which by the way is one of the ways of violating Section 9SG but it did change that ortion of the section relating to bookmaking by making bookmaking with ¬ out any note memorandum or writing a crime crimeWe We are going to burden your honor with a nara rative of the history of gambling legislation in the state of New York and of the enactments of our legislators in order to carry out the public will in regard to the morals of the community That has Leon discussed by able judges in this state People ex rel Collins 128 API Div 599 Sunice it is to say that horse racing was forbidden by law as early as 1802 1 It L 22 22The The argument that nothing more than a private bet is charged in this information is absurd Pri ¬ vate betting never was and is not now a crime People vs Stedekor 175 N Y 57 People ex rel Sterling CO Misc The information before the court charges public gambling not private letting The information of course in this case takes the place of an indictment in a court of record It is elementary that while an indictment must set forth the crime charged and the acts constituting it nevertheless there is no rule of law that compels the people to set forth evidence either in an information or an indictment indictmentIf If 1 private bet with an individual had been charged standing alone no crime would have been made out but the information here charges the re ¬ lator while upon the race track property whore these horse races were actually In progress with moving around the grounds and not making a hot or a friendly wager with one of his friends but with making numlKTloss bets and wagers on the re ¬ sult of these horse races with divers people under a system by which the opposite party to the transac ¬ tion did make a note or memorandum of the bet in writing We do not claim that tills note or memoran ¬ dum as a legal proposition bound the relator The contrary has been expresscdly held in the People vs Lambrix 204 N Y 201 201lut lut we do respectfully urge that every possibil ¬ ity of a private betting proposition is negatived in the statement that at the time the relator made each of these bets the opposite party made a note or memorandum of the same clearly indicating and proving that the science of bookmaking has advanced to such a stage that the bookmaker can attempt to evade the law by having some one else make the memorandum We say that this note or memorandum so made as charged in the information shows not a private bet but a clean cut new system of public gambling which the Legislature condemned in plain English language in Chapter 4SS of the Laws of 1910 The courts before this have condemned evasions of the law in gambling cases People vs Fisher 42 N Y State Uep 384 384It It may be urged that if the facts stated in this information constitute a crime then the directors and persons in charge of the racing associations are likewise guilty of a crime without any intent whatever to violate the law lawThe The answer to that is that the law requires j knowledge of the acts constituting the crime on the part of the person acciifcd and the law as it now stands would not permit of the conviction of the owner of a race track who had no knowledge of the gambling not betting going on in his premises It is erroneous to say thatviny directors could be held liable under these conditions under the present law Section 975 of the penal law of the state of New York as a penal statute must be strictly con ¬ strued and under the common law a person cannot i convicted of a crime if ho had no knowledge of the act actIt It is true as a matter of law that there need be no proof of actual knowledge where a thing is clearly and expressly prohibited for in such a case knowledge is always presumed but in this case the thing prohibited under the existing statute is the keeping of a race track used for gambling and no director could bo convicted of keeping a race track used for gambling unless he had guilty knowl ¬ edge that the place was not once or twice but continually used for ganibling not private betting and had taken no effective means to stop It ItThe The argument that a writing is a necessary in ¬ gredient of this crime under the present law is not sound A glance at section SO will show that the section prohibits many things It prohibits for in ¬ stance pool selling then it mentions bookmaking maintaining places for gambling etc then it goes on and says And any person who records or registers bets or wagers is guilty like ¬ wise clearly showing that recording and registering a bet is one tiling and bookmaking without any writing is another And the distinction is discussed by Cullen J in the Lambrix case In discussing the amendments to the law lawThis This issue now before your honor Is tho most important that has arisen in this state in connec ¬ tion with gambling since racing on the big tracks was abandoned as a result of legislative enactment
