
    The People of the State of New York ex rel. Orlando Jones, Respondent, v. Joseph Langan, a Lieutenant of Police, Appellant. (Action No. 2.)
    Second Department,
    May 7, 1909.
    Crime — bookmaking — written record essential — information not charging crime.
    A person is not guilty of “book-making ” in violation of section 351 of the Penal Code unless he makes some written record of bets.
    Hence, an information which merely states that the defendant did on a race track “ quote and lay odds ” to many persons, specifying the odds, and “ did state and publish to'said persons the terms on which ” he was willing to bet with them, on the result of horse races then and there to be run, and did bet a specific sum with the person named that a certain horse would lose does not charge a violation of section 351 of the Penal Code if there be no allegation that the defendant made a written record of the bets.
    Appeal by. the defendant, Joseph Langan, a lieutenant of police, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of March, 1909, sustaining a writ of habeas corpus and discharging the relator from custody.
    The relator was arrested under a warrant of the Court of Special Sessions of the City of New York issued on an information filed by the District Attorney of Kings County under section 742 of the Code of Criminal Procedure.
    
      Robert H. Elder, Assistant District Attorney [ John F. Clarke, District Attorney, with him on the brief], for the appellant.
    
      Joseph S. Auerbach [ Charles H. Tuttle with him on the brief], for the respondent.
   Gaynor, J.:

Any person who engages in “book-making ” is guilty of a misdemeanor (Penal Code, § 351). The information and the warrant against the relator accuse him of the crime of “ engaging in bookmaking”. The information has to state facts which constitute book-making (Code Crim. Pro. § 742; People v. Corbalis, 178 N. Y. 516; People v. Pillion, 78 Hun, 74; People v. Miller, 81 App. Div. 255). It does not do so. It states that the relator did on a race track “ quote and lay odds ” to many persons, specifying the said odds, that is to say, did state and publish to said persons the terms on which ” he was willing to bet with the said persons against the horses on the result of races then there to be run by such horses, and did bet $500 to $200 with a person named that a certain horse would lose. There is no allegation of the writing or recording of anything. The learned counsel for the People admits there was no writing or recording, and argues that bookmaking means only the making up by one of a plan of system, called a book ”, of odds- to be followed by him in betting with all comers, and which, though it may be written or recorded, does not need to be, but may be made up and carried in his head, and communicated or published by him orally. This is not so. There can be ,no book-making without writing or recording. The word in betting, and as used in the Penal Code, implies the use of a book, or sheets of paper, or .a bulletin board, or some such thing. This is the genesis of the word. It is not necessary to enter upon a precise definition, no facts of writing or recording being alleged.

The order should be affirmed.

Woodward, Jenks, Burr and Miller, JJ., concurred.

Order affirmed, without costs.  