
    The People, Resp’ts, v. John Floss, Impleaded, App’lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed November 19, 1889.)
    
    1. Prize fight—A sham contest arranged for advertising purposes is NOT.
    For the purpose of advertising a woman sparrer an arrangement was made for a sham fight between her and another woman to take place in Canada. It appeared that there were no gate receipts or prize money, and that the principals were whispering to each other during the contest. Held, that this did not constitute a prize fight within §§ 458,461, Penal Code.
    2. Same—Aiding and abetting.
    Defendant was not shown to have been connected with the contest except that he was present when the arrangement was made and was on the boat going down the river to the place of contest, and that he gave the woman, who was in his employ, some money. Held, that he was not connected with the ofíense with such certainty as to warrant a conviction for aiding and abetting.
    Appeal from judgment of criminal trial term convicting defendant of the crime of instigating, aiding and abetting a prize fight
    The indictment charged the defendant, with others, with instigating, etc., a contention, fight, ring-fight and prize-fight, without weapons, in that between the 2d day of July and the 16th day of September, 1888, the defendants did unlawfully give, utter and publish notice to the public of a fight, contention, prize-fight and ring-fight, to take place and occur between Libbie Spann, called Hattie Leslie, and Barbara Dillon, otherwise called Alice Leary, without the state of New York, and did unlawfully, etc., train, fit, help and prepare said Leary and Leslie for such fight and contention, and furnish and give money, means, assistance, support and maintenance to them while in preparation and training for such fight, and did, with intent to evade and elude the provisions of the Penal Code of the state of New York relating to prize-fighting, depart from and leave the state of New York, and at Navy Island, in the Dominion of Canada, attend at, aid, abet and take part in the aforesaid fight, contention, prize-fight and ring-fight between said Leslie and Leary, as “referee, bottle-holders, seconds and spongers.”
    The evidence showed that the woman Spann had been on the stage a year and a half under the stage name of Hattie Leslie as an exhibition sparrer, sparring in exhibitions with her husband,' and was in the employ of defendant. In July, 1888, while the defendant Spann and his wife were at work at Genesee Hall for defendant, they showed Floss an article, a clipping from a newspaper, in which the woman Spann, alias Leslie, claimed to be the champion female sparrer of the world. There was a challenge in that paper from one Alice Leary of Bradford, a big, tall woman, and a sparring match or prize-fight was arranged and articles signed for it to take place about the 4th day of July, 1888, be-' tween this woman Spann, alias Leslie, and the Bradford Alice Leary; and it was advertised that there was to be a prize-fight on that day for $500 ; $250 a side. There was no proof that Floss had anything to do with this advertisement. This fight never took place, because the original Leary woman would not spar; and a new arrangement was made with another woman, who had never sparred before in her life, to personate the Leary woman and have a sham fight for the sake of advertising the woman Spann. It appears that after the first proposed prize-fight fell through, the defendant Baker suggested that they should have a friendly set-to, and that articles for it were signed in Genesee Hall. The woman Spann, who was sworn as a witness for the people, testified that there was no prize money up, or gate receipts, nor. any bottle holders or seconds ; that defendant never gave her any money outside of her salary except a little money when she was. out in the country.
    This witness also testified: “ This Alice Leary and myself were-friendly, and were together most of the time, and during the time that we were having this sparring on the barn floor I and Alice Leary were whispering together. In a prize-fight that is not allowed, I suppose. I remember of these articles being destroyed. This fight at Navy Island wasn’t under articles. The only object of the fight was to get newspaper notoriety so that I could go and earn a better salary. That is the only business I have; sparring-exhibitions with my hushand. If I was sparring with a person, skilled in the art of sparring, I would have to spar different from what we were down there. This Alice Leary that I was sparring-with don’t understand how to spar, anyway, much; just enough to make it look as if we were sparring. The sparring down there was just the same as exhibition sparring on the stage; no fight, about it, no knock out.” Again she testified: “I didn’t get any money out of it at all. I never got any money out of it.
    All the witnesses testified that it was only a hippodrome or sham fight.
    It appeared that, while there was some talk about having gate receipts, or that five dollar’s admission fee should be charged, there is no evidence that any gate receipts were charged or taken, and no evidence whatever, from the beginning to the end of the case, that the defendant Floss had anything to do with making the arrangements for the fight, or that he was present at it, except that he was present when the arrangements for the contest were made, and was on the boat going down the river, or that he had anything to do with it by way of aiding or abetting it in any way except some evidence that he paid the woman Spann, by the hand of her husband, fifteen dollars
    At the close of the case, counsel for defendants moved that the court direct a verdict of acquittal on the ground that there was no prize-fight within the meaning of §§ 458 and 461 of the Penal Code. This motion the court denied, and the defendants excepted. Defendants’ counsel then gave evidence by John Spann which showed distinctly that the whole arrangement which culminated in the transaction at Uavy Island was simply for advertising purposes, and was a “hippodrome,” or make-believe and pretended fight throughout Defendants’ counsel then renewed, his motion that the jury be directed to acquit the defendants on the ground that the plaintiff had failed to prove that there was any fight, as alleged in the indictment, or any violation of the law, and that it appeared that they had used weapons; two-ounce gloves. The court held that the evidence presented a question of fact for the jury as to whether there was a prize fight or not, and submitted the case to them with instructions that if they found that there was only a form of fight for advertising purposes, and not a real fight, they should acquit. The jury returned a verdict of guilty.
    
      George T. Quinby, for resp’ts; Tracy C. Becker, for app’lt. .
   Per Curiam.

We think in this case that the undisputed facts do not authorize the conviction of the defendant for the offense charged in the indictment. It is evident that no prize fight was intended by the parties to it; that it was a scheme intended to advertise one of the principals that she might demand a better salary in her profession.

We are also of the opinion that the defendant is not connected with the offence with such certainty as is required in criminal actions to effect a conviction.

The judgment should be reversed.

Beckwith, Ch. J. and Titus, J., concur.  