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TEXT OF JUSTICE SCODDERS IMPORTANT DECISION IN NEW YORK New York October Racing men are hopeful that the Shane case which has gane to tlia Appel ¬ late division of the Supreme Court on appeal and which will eventually reach the Court of Appeals Iu case the decision of Justice Scudder is atiirnied by the Apitellatu Court will clean ui all the am ¬ biguous points in the HartAgnew and AguewPerk ins laws lawsJiisti Jiisti e Scudders decision went into the matter of tKKikuiaking and butting at great length and in full Ss as follows followsTills Tills matter comes before the court on an applica ¬ tion by Paul Shane the relator to be released from custody of Charles J Gittins Justice of the Peace respondent on a criminal charge pending again t relator charging him with committing the crime of K ckiuakiiig in violation of Section UJsG of the Penal Law of the State of New York YorkThe The information under which the rein tor is held charges that one Paul Shane did commit the crime of bookmakiug in violation of Section 985 of the Penal Iaw of the State of New York in manner following towit towitOn On the Oth day of June 1912 at Belmont Park in the town of Hempstead Nassau County New York on the grounds of a private iuclosure known as the grounds and race course of ltlw llolmonl Park Racing Association a domestic corporation owned by said corporation and Jiy it leased on said day to the Inited Hunts Racing Association a domestic corporation where certain trials and contests of skill speed and endurance of horses commonly culled horse racing where then and there conducted of which trials and contests the said Paul Shane was tli n and there a spectator having paid the fee ruijsiircd bv the said last mentioned corporation for admission to said grounds the said Paul Shane while moving about ou said grounds did unlawfully willfully mid privately make several bets or wugiars on the result of each of suld contests the said l lets ets or wagers being made by him orally and with ¬ out the iihe of paraphernalia or writing but a note or memorandum of ach of said iHW or wagers was then and there prepared and written by the opposite party to each of said bets r wagers stating the niicie of the horse upon which the par ¬ ticularbet or Aviiger was madu and the amount Uureof and tho said note or memorandum was thereupon in each case shown to the said Paul Sftanc J y the aUUoppusite party jit th rcqjiejit Qf the said Paul Shane against thu form ot the statute lii such case made and provided providedThe The deposition supporting the information reads as follows followsState State of New York 1 Nassau County f fMichael s Michael Williams the above named informant lieing duly sworu and examined in relation to thu foregoing information deposes and says I reside in the village of Hempstead Nassau County N Y and am on of the official deputy sheriffs of Nassau County I was present on June 0 1012 at Ihe race meet conducted by the Lnlteil Hunts Racing Association ou the grounds of the Bui moat Park Racing Association at Belmpnt Park in the town of Hempstead Nassau County New York I saw the abovenamed Paul Shane there He P I 1 the fixed fee of to enter the grounds on said day ns a spectator of the horse races and trials of speed of horses then and there being conducted There I were sir races on said dtty and during the progress of the day and while these races were going on the said Paul Shane was walking around the grounds and at that time I saw htm ninke bets and wager wit h various persons on tho result of each and every horse race then and there nm He made the bets orallv with these persons at the time but when the bets and wagers weni made the other party to the bit or wager m de a note and memorandum of the sumo hi writing which note or memorandum M forth the name if Ihe horse or animal then anj there bet np m together with the amount ot tin particular bit and wager which niemorandiiiu or note was then and there shown by the said opposite partv to each of said bots and wagers to the sail Paul Sham at his the ssid Paul Shanes request The public wen admitttd to tho above grounds ri payment of a nxed iidinissiou fic Michael Williams WilliamsSworn Sworn to before mu June 0 lt2 lt2Charles Charles F Oitteus Justice of thft Peace Towiiof Ilempstead IlempsteadS S ctIon SlSti of the Peinil law uuJer which relator is held provides S S Poolselling Ixxikinaking lxts and wagers wagersAnt Ant persou who engagis In KXtlsellIng or hook nmUIng ivilh or witliout writing at any time or place or any person who keeps or occupies any room shed tcnamint tent booth or building Uoat or ves ¬ sel 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 ap ¬ paratus or paraphernalia for the purpose of record ¬ ing or registering bctK or wagers or of selling pools and any person who records or registers bets or wagers or soils pools or makes book with or with ¬ out writing uion the result of any trial or contest of skill K eed or power of endurance of man or beast or upon the result of any political nomination appointment or oection or upon the result of any lot chance casualty unknown or contingent event whatsoever or nny person who receives registers records or forwards or purports or pretends to re ¬ ceive register record or forward in any manner whatsoever any money thing or consideration of value bet or wngered or offered for the purpose of Ircing bet nr wagered by or for any other person or sajlls pools upon any such result or any person who being the owner lessxe or occupant of any loom shed tenement tent booth or building float or vessel or part thereof or of any grounds within this slate knowingly permits the same to be used or occupied for nnv of these purposes or therein keeps exhibits or employs any device or apparatus for tin purpose of recording or registering such bets or wagers or the telling of such pools or lieconus Ihi custodian or depositary for gain hire or reward of anv nionev proiurty or thing of value staked wagmil or pledged or to b wagered or pledced upon any such rosult or any person who aids assists or lifts in anv mamier in any of the said acts which an hereby forbidden Is guilty of a misde ¬ meanor and upon conviction is punishable by im rlMiniiient in a peultentiary or county jnll for a ptrlixl of not more than one year yearPrior Prior to 1S10 the words with or without writing did not appear in Section SO of the Penal law these words were road into that section by Chapter 1HS of the Laws of 1JIO Before the enactment of thin statute under the decision Of the Court of Ap ¬ peals In People ex rel Llchtenstein vs Langan N Y 2CO the facts stated In the information tcfotv me would iot have constituted the crime of JKMikiiiaklng The question to be decided here is whether the acts alleged in the information are Mtifliclvnt to constitute the crime of bookmaking under the amendment of 1010 to said Section 180 180The The constitution of the state forbids bookmnking but dots not define what bookniaking is and the statute we have quoted forbids engaging in book making also without iTeiliilhg It but makes It a dis ¬ tinct and Independent offence offencellookuinking llookuinking has been detineil In People ex rel Llirhcnstein v Lnngiin 100 N Y 2V Judge Halght writing for the court and discussing the contention of the District Attorney that the laying of odds and orally announcing them constituted lx ok making withiuthe meaning of the statutes said at page 264 264The The term bookmakiug originally indicated a col ¬ lection of sheets of paper or other substances upon which entries could hu made either written or printed But the tern has been used in many ways and in determining its meaning as used in this statute we must consider the evident purpose ami intention of the Legislature in enacting the provision in question giving to the term its ordinary aud ac ¬ cepted meaning as It was understood at that time The court then goes on to say page 2GT The ordinary bookmaker is a person who follows the races and becomes fully informed with reference to the skill speed and endurance of the hoisea thu are entered for races These horses are taken from one meeting to another of the various racing associa ¬ tions and thereby the bookmakers are enabled to prepare a list of the horses entered for a race with the odds BO arranged as to percentages as to give them a profit which ever the winning horse may be The information in that casa charged the defendant Languii with unlawfully willfully aud knowingly to many persons upon the results of said races and upon various and divers horses that were announced to participate and did participate iu said races quote and lay odds that is to Kay did state and publish to many persons the terms on which they were willing then and there to but with said per ¬ sons on saiit results and against said horses and lid then and there quote and lay odds as aforesaid 3 reciting the bets made The court held this information failed to allege acts which consti ¬ tuted bookmakingThis tho crime of bookmaking This decision va rendered prior to 1010 and before the words with or without writing were read into Section OSG of the Penal Ltiw by Chapter 4SS of the Laws of 1010 1010Do Do these words with or without writing so change the lav forbidding Ixxikmakiug ns to consti ¬ tute a crime of the acts with the commission ot which relator is charged acts whiut prior to 1010 did not constitute the crime of l x k making under the decision ot the Court of Ap eals hi the cusi of People x rel Lichtnstoln vs Langai or lo these acts constitute betting only which bus never been made a crime in this State excepting betting upon the result of u prize light which is a misdemeanor Penal Law Section 1712 Doubtless the Legislature by the enactments we are considering intended to suppress public ambling on racetracks aud elsewhere and to prevent the in ¬ jury tonmblie morals resaHinsr therefrom Hut us said by Judge1 Vaan in the Lichtenstein case Pri ¬ vate betting and iKwkmakJng are widely separated both in nature and effect and the evil if any re ¬ sulting from the one is trifling while the evil result ¬ ing from the other is serious seriousItookmaking Itookmaking the Legislature bus sought to SUP1 press by making it a iriuie to engage In it Betting the Legislature his declared unlawful but has not made It u crime except betting on prizefights En ¬ gaging in bookmakiug is hotting but ordinary but ¬ ting on a horse race is not bookmaking and is not a crime and when the sum or sums won or lost by betting within the space of twentyfour hours aggre gate less than twentylive dollars it is not punish ¬ able if in exccts of this amount betting is punlsa uble by a tine iu an amount of not less than five times the sum so lost or won to be recovered in u civil action by the Oversocr of the Poor See Penal Law Sections OSO 090 001 001It It does not seem probable that had the Legisla ¬ ture intended to make several bets such as those with the making of which the relator is charged punishable by imprisonment for a possible term of one year it would have declared at the same time that the making of a single Bet or several bets ex ¬ ceeding twentylive dollars in amount was punish ¬ able by a tine only in a civil action brought by the Overseer of the Poor PoorAs As said by Chief Judge Ciilkn in People vs Lam hrick 204 X Y at page 204 referring to Section OSO of the Penal Law before Its amendment in VHO VHOIt It was directed against public gambling aud pro ¬ fessional gamblers and while all gam ¬ bling has for a long time been illegal in this State professional gambling and the maintenance of gam ¬ bling resorts alone have been subject to the penal tis of the Criminal Law LawThe The information now beforo the court contains io allegation that relator was u professional gamliler or that he made his bets in such a way as to con stitute his letting public gambling on the con ¬ trary it isjiileged that relator did pri ¬ vately make several bets Under Section OSO of the Penal Law the person who is declared guilty of a misdemeanor is Any person who engages in hookuiuking with or without writing Relator is charged in the present Information with committing the crime of Ixiokmaking IxiokmakingThe The Court of Appeals in People vs Bright 20 N Y commenting ou the words who engages has said saidThe The phnsi who engages is significant It means something more than occasional participation It im ¬ ports some continuity of practice just as the oplthtt common implies that a common gambler is a person who customarily or habitually or frequently carries on tho gambling practices which are denounced by the statute The underlying idea is the habitual participation in gambling as a moneymaking pur ¬ suit suitThe The information before me fails to allege the ele ¬ ment of professionalism or hahihialncss on the part of rotator It fails to charge the relator with thf public quoting and offering of odds with the solicit ¬ ing of bets with inducing the public to take changes with him in any scheme of odds with effecting through his methods any exchange of money c propvrty propvrtyAs As bookmaking has been defined by the courts its chief dements stMin to to be lacking iu the acts oininitteil by the relator as set forth Iu the in ¬ formation formationAs As wild bv Chief Judge Cullcn referring to Section S of the Penal Law in People vs l ingnn supra While supraWhile in reality the statute is directed against gambling not against its incidents tho law has laid hold of certain incidents on the theory that those being prohibited the evil itself will be sup ¬ pressed because of the impracticability of carrvlng on gambling on a large scale without some of the accessories denounced by tho statute statuteWhether Whether this plan is the host plan is for the Legislature not for the courts to determine The court is powerless to hold that a given act or a series of acts constitute a crime unless thov fall within the prohibition of the statute Tho remidv for tho evil complained of here must come from the Legislature Tho Legislature has made it a crime to hut on prizelHelits H can niike it a crime to hot on horse races It has not done so and the court is powerless to do so I hold tliat the Legislature in inserting iu 1010 in Sec ¬ tion OSC of the IVnal Law after the words hook making the words with or without writing did not intend to make betting a crime but did intern to deal with that form of professional gambling bookmakingIt known as bookmaking It was contended on the argument that if the acts allegnl in this information constitute a crime then the directors and persons in charge of the racing associalion are likewise guilty of a crime without any intent whatever to violate the law I agree with the learned district attorney that the answer to this Is that the law requires knowledge of the acts constituting the crimo ou the part of the per ¬ sons accused ind the law will not permit the con ¬ viction of the owner of a rave track who has no I Continued on second page 1 TEXT OF JUSTICE SCITDDERS DECISION Continued from first page knowledge of the fact that bnokmaking not ordi ¬ nary betting is going on upon his premises It is erroneous to say that any director could K held liable nailer these conditions under the present law Section 973 of the Penal Law of the State of New York as a penal statute must be strictly con ¬ strued True 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 here the thing prohibited is the keeping of a race track used for gambling and no director could be convicted of keeping a race track used for gambling unless it was proven he had guilty knowledge that the place was not once of twice but continually used for gambling in the form of bookraaking not of private betting and had taken no effective means to stop it itCounsel Counsel for tin Society for the Prevention of Crime in his brief asserts assertsWe We cannot escape the conviction that the Infor ¬ mation purposely avoided setting forth all the acts of Shane and IIR expresses grave doubts whether this case is not collusive collusiveThe The recognized standing and high character of tin1 learned District Attorney of Nassau County and of the Assistant District Attorney refute any such In ¬ sinuation The information In the case at bar the court is Informed by tho Assistant District Attor ¬ ney was written by the justice Issuing the warrant rt his dictation and set forth all the acts that the informant Michael Williams a deputy sheriff of Nassau County observed in connection with rclators betting bettingAu Au Information jMjrforms to some extent the same oliicc as au indictment aud must state with accur ¬ acy not only the crime charged but the facts which constitute the crime so charged as distinct from con ¬ clusions of law 1 think tho information here fails to allege acts which constitute the crime of book making the only crime with which relator is charged chargedThe The motion should be granted and the relator dis ¬ charged from custody and it is so ordered
