People Ex Rel. Lichtenstein v. . Langan , 196 N.Y. 260 ( 1909 )

The relator was arrested by virtue of a warrant, upon information filed by the district attorney with the Court of Special Sessions in the city of New York, in which information the relator was accused of the crime of engaging in bookmaking. The information charged that "The said Sol Lichtenstein, William Brown and Louis Mayer on the 23d day of September, 1908, at the Borough of Brooklyn, of the City of New York, in the County of Kings, on the grounds of a private inclosure known as the racecourse of the Brooklyn Jockey Club, a domestic corporation, where certain trials and contests of skill, speed and power of endurance of horses, commonly called horse-races, were then and there conducted, did unlawfully, willfully and knowingly, to many persons, upon the results of said races and upon various and divers horses that were announced to participate and did participate in said races, quote and lay odds, that is to say, did state and publish to said persons the terms on which they, said Sol Lichtenstein, William Brown and Louis Mayer, were willing then and there to bet with said persons on said results and against said horses; and did then and there quote and lay odds, as aforesaid, of eight to five on one of said horses called Fitz Herbert, and did then and there accept a bet of fifty dollars from a person whose name to the district attorney is unknown, but who can be identified, on said horse at said odds, that is to say, bet eighty dollars against fifty dollars bet by said person, that said horse would lose, against the form of the statute in such case made and provided." Thereupon relator petitioned for a writ of habeas corpus in which he claimed that the information filed stated no offense under section 351 of the Penal Code. Upon the hearing at Special Term the writ was sustained and the relator was discharged from custody.

Section 351 of the Penal Code, so far as is now material, provides as follows: "Any person who engages in * * * bookmaking at any time or place; or any person who keeps or occupies any room, shed, tenement, tent, booth, or building, float or vessel, 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, apparatus or paraphernalia, for the purpose of recording or registering bets or wagers, * * * and any person who records or registers bets or wagers, * * * upon the result of any trial or contest of skill, speed or power of endurance, of man or beast, or upon the result of any political nomination, appointment or election; * * * is guilty of a misdemeanor, and upon conviction is punishable by imprisonment in a penitentiary or county jail for a period of not more than one year."

Upon the argument of this appeal the learned district attorney stated that in the information by him, in which he charged the relator with laying odds and publishing the same to numerous persons, he did not intend to charge that such laying odds and publishing was by any writing or printed instrument, but that it was oral. We thus have the question presented as to whether a person who offers to bet, and so announces to others orally, upon a horse or horses that are about to engage in a race in which he lays odds, is a bookmaker within the meaning of the statute.

It will be observed that it is not alleged in the information, nor was it claimed upon the argument of this appeal, that the relator kept or occupied any room, shed, tenement, tent, booth, or building, float or vessel, or that he occupied any place or stand of any kind, upon any public or private grounds, with books, papers, apparatus or paraphernalia, for the purpose of recording or registering bets or wagers, nor is it alleged or pretended that he recorded or registered any bets or wagers. The provision relied upon by the district attorney is that he was engaged in bookmaking; that the laying of odds and orally announcing them constituted bookmaking within the meaning of the statute.

The term "bookmaking" originally indicated a collection of sheets of paper or other substances upon which entries could be made, either written or printed. 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 provision in question, giving to the term its ordinary and accepted meaning as it was understood at that time.

For many years the racing of horses for the purpose of determining their skill, speed and power of endurance has been one of the diversions in which a portion of the public has indulged, and no county fair has been considered complete without a race. Generally, in large cities, associations have been organized which have constructed tracks and inclosed grounds for that purpose, and annually have maintained races by the prominent horses of the day. Of late years, however, these associations have tolerated a system of bookmaking which has come to be regarded as specially vicious and demoralizing to the public. The ordinary bookmaker is a person who follows the races and becomes fully informed with reference to the skill, speed and endurance of the horses that are entered for races. These horses are taken from one meeting to another of the various racing associations, and thereby the bookmakers are enabled to prepare a list of the horses 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 bookmaker among the persons in attendance upon the races and their bets solicited, and when a customer is found he is given a check indicating the horse and amount upon which he has placed his money. 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 the 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, chapters 506 and 507 of the Laws of 1908. The making of the lists and the laying of the odds so as to make the percentages such as to give the bookmaker a profit has to be carefully figured, the maker taking into consideration the speed and endurance of the respective horses, and in order to make a practical use of the list and secure bets it of necessity has to be entered upon paper or some other material so that the odds upon each horse may be posted or shown to the patrons of the races when their bets are solicited.

It is perhaps true that a bookmaker may retain in his own mind the memory of the odds where three or four horses only are entered in a race so that he could state the odds orally to others, but it would be difficult for him or his customers to remember the precise amounts in many transactions and base their bets thereon, and consequently but very few bets could be taken under such circumstances. The masses could not be drawn into the scheme and their money obtained without some writing or entry that they could rely upon.

There has always been observed a distinction between betting and gambling, or the maintaining of a house or place to which people could resort to gamble. At common law wagers on different subjects were legal and might be enforced, while a gambling house or a resort for gamblers was a public nuisance. The same distinction obtains in this state where ordinary betting has never been made a crime, while the keeping of a gambling house has been subjected to severe punishment. (People v. Stedeker,175 N.Y. 57-62.) The laying of odds standing alone does not, therefore, constitute a crime. If a man should offer to bet the ladies of his party a pair of gloves to a box of candy, it would be the laying of odds and publishing the same. To hold him to be a bookmaker would, in my judgment, be a departure from the rule which gives to the terms of the statute their ordinary and accepted meaning, and would be a construction which was not within the contemplation of the legislature. The vice of bookmaking chiefly consists in soliciting and in the inducing the public to take chances in the carefully figured and planned scheme of the bookmaker, and this, in order to be profitable to him, requires the writing out of the list of the odds laid on some paper or material so that they can be seen by those who are solicited to invest.

We, consequently, conclude that the information filed by the district attorney failed to allege acts which constituted the crime of bookmaking, and that, therefore, the order appealed from should be affirmed.