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A JUDICIAL DEFINITION OF WHAT CONSTITUTES BOOKMAKING IN THE STATE OF NEW YORK The decision of Judge James P Nieinann of Nassau County New York in dismissing the charge that UKiknuking is being tolerated at Belinont Park is interesting and shows a careful consider ¬ ation of the tine legal Kiints involved in the case Its complete tet is available and is as follows followsThe The sole question in this proceeding is whether from the facts stated by the prosecutor and his witnesses tlielo is reasonable ground to believe that the defendants named in the information hav been guilty of Ihe crime of bookmaking within the strict meaning of that term termWhat What is bookmakingV Judge Hnight denned Ixiokmuking as follows The term liioicuukiiig originally indicated a collection of sheets of paper or other substance upon which entries toiild be made either written or printed Prior to the enactment of the HartAguew law bookmaking was conducted UIKHI the racetracks of ths State in the following munuer munuerThe The bookmaker prepared a slate upon which was marked the odds he was willing to lay against the various horses entered in the race lie would then stand upon a platform hold his slate in his hand so that it cjnld easily le observed by Un ¬ people who gathered around him and jxdicit bets from the general public those whit were seeking to bet would if the odds quoted were to their liking place a bet ii on the horse of their se ¬ lection lectionThe The entry of this bet was made by the book ¬ makers clerk who stood or was sealed next to him The manner of entering such bets was that the clerk would record iiHii sheets of paper the number of the admisiqn tag held by the bettor the amount of the money bet at the odds quoted and the position in which the horse was played playedTills Tills practice of belting on horse races is what was known at that time as bookmaking and t was this very practice of bookmaking that the Legislature sought to ttamp out outAs As stated in the pinion of Judge Haigit The ordinary bookmaker is a person who follows the races and becomes fully informed with refer ¬ ence to the skill speed and endurance of the hoires that are entered for races racesThese These horses arc taken from one meefing1 to another of Ihe various racing associations and thereby the liookmakers are enabled to prepare a list of liorses entered for a race with the odds so arranged as to percentages as to give them a profit whichever the winning horse may be These schedules are written out and either posted or circulated by the clerks or agents of the Isook makcr among the persons in attendance mi the races nnd their bets solicited and when a cus ¬ tomer is found he is given a check indicating a horse and amount upon which he has placed his money moneyThis This was the scheme under which bookmakers were enabled to Induce men women and persons of Immature years to part with their money thus enabling Ihe bookmaker to reap great profits out of the public and to become the chief supporters of the races This is the evil which the legislature sought to prevent by the enactment of the Hart Agnew bill billThe The information in the Liehlenstein case did not allege or was there any claim made by the District Attorney that the laying of the odds and publish ¬ ing the same was by any written or printed in ¬ strument but that it was oral so that the ques ¬ tion presented to the Court was whether the lay ing of odds and orally announcing them eonstitiitd bookmaking within the meaning of the statute The Court held that these acts did not constitute bookmaking but It said in speaking of what the term Miookiiiakiug means But the term has been used in many ways and in determining its meaning as used in this statute we must consider the evident purpose and intention of the Legislature in enacting the pro ¬ vision in question giving to the term its ordinary and accepted meaning as it was understood at that time timeThe The meaning of the term bookmaking as It was understood at that time was this system or practice of gambling by writing or printing odds upon si slate or sheet of paper soliciting bets from the general public and recording the same and it was the evident purpose and intention of the legislature in enacting the HartAgnew law to prohibit this particular practice It was not the intention of the Legislature to prohibit the lay Ing of odds and orally announcing them for that was not considered at that time bookmaking bookmakingThere There being therefore in the Lichtensteln case no allegation iu the information or claim by the District Attorney that the defendant did not pre ¬ pare and write quotations of odds on er or other substance solicit bets and record the same the crime of bookmaking was not charged within the meaning of that term as it was understood at that thatIn In the Lamhrix case the defendant was indicted In March IHO for bookmaklng The evlde showed that he made bets with certain persons on i horserace There was no evidence to show that he recorded or registered a bet in any other way than by receiving a memorandum made by the party with whom he l et The Court said It is to be I Iorne orne in mind not only that the offenses with which the defendant was charged were com ¬ mitted prior to the amendment of the penal law making bookmaking and pool selling with or with ¬ out writing a crime but that the only question submitted to the jury was whether the defendant had recorded or registered bets That making a bet or wager unaccompanied with record or registry was not at that time of this transaction a crime was decided by this court in Lichtenstein vs Lan gan In order to overcome this limitation and to prohibit bookmaking no matter how conducted the Legislature enacted the laws of 1HO which prohibits a person from engaging iu bookmaking with writingThis or without writing This brings us to the question What is book making Bookmaking as it now exists is not ma ¬ terially different from liookmaking as it existed prior to the IlartAgnew law but we may now dls tinguish two kinds of hookmakiug written hook making and oral bookiuakng The former was pro ¬ hibited by the IlartAgnew law while the latter was not The latter however by the amendment of 1010 is now also prohibited prohibitedOrdinary Ordinary betting even if repeated from day to day is not bookmaking The statutes and the de ¬ cisions have made a clear distinction between the person who transacts business as a professional gamester based upon a scheme and plan known as bookmaking and the man who makes a bet or a series of bets in the ordinary way In the Lichten ¬ stein vs Langan case the scheme and vice of book making is pointed out outThe The words with or without writing inserted in the Penal Law of 1HO did not in any way change the fundamental requirements of the statute that to constitute the offense there must be book making as it has always been understood It may now be oral bookmaking if that term may be em ¬ ployed that is bookmaking without writing but the evidence shows that the accused belongs to the das of common gamblers prtiftssiuiutl gamesters whose operations are conducted Upon the scheme known as bookmaking Bookmaking is distinct from the mere making or recording of bets betsThe The operatives of the Burns detective agency In the course of their testimony referred to the defendants as bookmakers but a mere designation by the witnesses of these men as bookmakers has no legal force it is a mere conclusion of the wit nessis There must be evidence of such acts and conduct of the defendants as show that by their actual practices they belong to the class of profes ¬ sional gamblers failed bookmakers bookmakersThe The evidence of these witnesses fails to show such acts and practices as would authorize a finding that there is probable cause to believe that the ac ¬ cused persons have committed the offense of book muking and therefore the court is unable to follow them in their conclusion that the defendants are Ixxikmakers What these defendants did constituted no doubt a form of gambling but it must be borne iu mind that not every form of gambling is prohibited in this state In fact the Constitutional Convention of 1S04 by an overwhelming vote refused to make such prohibitionHere a sweeping prohibition Here we are dealing with a specific and distinct form of gambling which consists of certain specific acts distinguishing this form of gambling from every other form of gambling and specifically designated In the statute as liookmaking The information in this case charges that particular statutory offense and as the evidence falls short of establishing the crime alleged to have been committed the pro ¬ ceedings must be dismissed dismissedDistrict District Attorney Charles N Wysong when asked his opinion regarding the dismissing of the pro ¬ ceedings said Under our present law there was not sutlicieut evidence to convict and as the laws now exist it Is a ditlicult matter to secure evi ¬ dence on which the men can be held When the matter came up in the Hearst papers I did not know what evidence could be adduced and de ¬ termined to have an investigation and see if we could secure a conviction convictionI I subpoenaed all the Burns men I could get also Mr Brisbane and after they had given all the testimony they had I adjourned the case sev ¬ eral days In the hope of getting more evidence and to also have an opfiortmiity to secure the original reports of the detectives so hat Judge Niemann could read them and form his opinion from them themThe The opinion of the judge speaks for itself and also for the evidence as adduced Hverv day men are ejected from the racetracks by the Sheriff Detective Prendegsist and the Pilikertons and they are not allowed to return At the same time we cannot get sntlicient evidence against these men lo convict them
