
    The People of the State of New York, Respondent, v. William J. Ebel, Appellant.
    
      Receiving and registering a money bet on the result of a horse race—placards taken from the poolroom at the time of the arrest, but at a date subsequent to the commission of the offense, are incompetent.
    
    Upon the trial of an indictment charging the defendant with the crime of receiving, registering and recording a money bet upon the result of a horse race contrary to the provisions of section 351 of the Penal Code, the chief witness for the prosecution testified that the offense was committed in a certain poolroom April 20, 1903, and that there were placards on the wall of the poolroom stating the names of the horses that were to compete in certain races.
    There were admitted in evidence, over the defendant’s objection, placards which were taken from the defendant in the poolroom in question at the time of his arrest on May 1, 1903. These placards were not shown to be similar in character to the placards which were alleged to have been on the wall of the poolroom when the defendant committed the offense charged in the indictment nor was any explanatory proof thereof given.
    The defendant, who was a witness in his own behalf, admitted that the alleged ’ poolroom was a betting place, but denied that he had ever participated in any betting transaction therein, and swore positively that he was not connected therewith. ,
    The court, after referring to the defendant’s testimony in the course of the charge, said: “ A few days after that this defendant was arrested in this place, and certain things (the placards) found upon him were introduced in' evidence because of the fact that he denied having any connection with this place whatever.”
    
    
      Held, that the placards were inadmissible and that, while in the absence of explanatory proof they did not constitute intelligible evidence of any kind, their admission did not constitute a harmless error because the court treated them as competent and important evidence on the question of the defendant’s credibility.
    Appeal by the defendant, William. J. Ebel, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of May, 1903, convicting the defendant of receiving, registering and recording a money bet upon the result of a horse race, contrary to the provisions of section 351 of the Penal Code, and also from an order denying the defendant’s motion for a new trial.
    
      Henry F. Cochrane, for the appellant.
    
      Robert H. Roy, Assistant District Attorney [John F. Clarke, District Attorney, Avith him on the brief], for the respondent.
   Willard Bartlett, J.:

There was an error in the admission of evidence upon the trial of this indictment which entitles the defendant to a reversal of the judgment.

The fourth count of the indictment, upon which the conviction is based, charged that on the 20th day of April, 1903, the defendant in Kings county and not upon any authorized race course did feloniously receive, register and record and aid, assist and abet in receiving, registering and recording the sum of four dollars bet and wagered by one Albert Winters upon the result of a certain horse race thereafter to be run at St. Louis in the State of Missouri.

The testimony given in support of this count tended to show that the defendant had committed the offense with which he was thus charged, on the date stated in the indictment, to wdt, the 20th day of April, 1903, at a poolroom at or near the corner of Harrison avenue and Bartlett street in the borough of Brooklyn. The chief witness against him was Albert Winters, a private detective. According to the testimony of this Avitness there were placards on the wall stating the names of the horses which were to compete in specified races at St. Louis. He selected one of these horses, wrote the name on a slip of paper and gave the paper, together with two dollars, to the defendant. “My horse came in second,” said the witness, “ and I got $1 back; I came out even ; lost $1 and won $1.”

On his cross-examination, being questioned in regard to the placards in the poolroom, Winters said that he had preserved some of the placards; that they were in court, and that he got them from the defendant. Further inquiry, however, developed the fact that these placards were taken from the defendant at the time of his arrest, on May 1, 1903, ten days after the .occurrence in the poolroom which was the subject of the indictment; and it was also made distinctly to appear that they had no relation whatever to the events of that day. “ They are not the same placards,” said Winters, “ that applied to the r’aces that were run on the 20th of April.”

When counsel for the defendant discovered this fact he asked that the testimony in reference to the taking of these placards from his client be stricken out. His motion was denied and he duly excepted, and later on in the trial the placards in question wei'e inti’oduced in evidence over the defendant’s objection and exception.

The submission of these printed cards to the jury is sought to be justified by the learned assistant district attorney upon the ground that their possession by the defendant showed guilty knowledge or intent on his part, and hence they became admissible, although tending to prove the defendant guilty of another ci’ime. In the absence of any explanation as to their use or meaning — and none was fur’nished in the testimony — the placards taken from the defendant at the time of his arrest do not tend to establish the commission of an independent crime, or to establish anything. By and of themselves they ar'e meaningless. Ther-e was no proof that they were similar in chat’acter to the placards on the wall of the poolroom where the defendant was alleged to have received the two dollars bet by Winter’s on the twentieth of April. Eleven of those which were admitted in evidence have been submitted to the Appellate Division upon this appeal. They are cards of pasteboard, about eight inches long, three and one-half inches wide, and the following copy of the printed matter upon one of them gives a fair idea of the character of all:

3 JAMAICA 3-4 Mile
1 Ascension 108
2 Cameron 120
3 Demurrer 120
4 Minotaur 98
5 Muskateer 116
Farrell entry.

Ho doubt, a jury might guess that this card referred to a horse race and that the names were the names of race horses, and that the card was designed for some use in connection with a racing contest, but there was not the slightest proof to this effect, and even if there had been such proof, and it had furthermore appeared that these very cards were intended to be employed in the registration of bets, their possession would not tend to convict the defendant of the felony denounced by section 351 of the Penal Code without proof that they were used, or to be used, upon a race course. (People v. Stedeker, 175 N. Y. 57.)

If I am right in thinking that these placards, in the absence of explanatory proof, did not constitute intelligible evidence of any kind, it may be argued that their admission, in that view, was harmless, and affords no substantial ground for reversal. The answer to this argument is that the trial court treated them as competent evidence affecting a vital point in the case •— that is to say, the credibility of the defendant, who was a witness in his own behalf. While admitting on the stand that the alleged poolroom was a betting place, he denied that he had participated in any betting transaction there on the twentieth of April, or received any money there on a bet made by Winters or any one else. He also swore positively that he was not connected with the place.

Referring to his testimony in this respect, the learned county judge said in the course of his charge to the jury: “A few days after that this defendant was arrested in this place, and certain things found upon him were introduced in evidence because of the fact that he denied having any connection with this place whatever.”

The things thus referred to were the placards in question found in the possession of the defendant at the time of his apprehension. I think I have already shown that they ought not to have been admitted in evidence at all, but if it be assumed that their admission though erroneous might have been harmless in the absence of specific instructions as to their effect, it became most injurious when the jury were told, as they were told in substance by the passage which I have quoted from the judge’s charge, that the possession of these placards tended to prove that the defendant testified falsely when he denied being connected with the poolroom where the offense was alleged to have been committed. It is utterly impossible to find anything on or about the placards or in the testimony concerning them which has the slightest tendency to prove anything one way or the other concerning the defendant’s connection with the poolroom. In view of the court’s language on this subject, the jury may well have been led to discredit the defendant’s testimony when otherwise they might have believed him, and it cannot be held that the erroneous reception of documentary evidence which could have had such an effect may be disregarded as unproductive of injury.

For the foregoing reasons, I think this judgment should be reversed. I have not overlooked the analogy which has been suggested between the placards under consideration and burglars’ tools found in the personal possession or in the dwelling of a defendant charged with burglary. That such implements may be exhibited to the jury, when accompanied by proof tending to show that they were actually used in the particular burglary or were adapted to such use, has frequently been decided in this and other States. (People v. Pawned, 7 N. Y. 445, 452; Ruloff v. People, 45 id. 213, 223; People v. Wilson, 7 App. Div. 326; affd., 151 N. Y. 403; People v. Hope, 62 Cal. 291; Commonwealth, v. Williams, 2 Cush. 582.) It has also been held, as in the case last cited, that even tools not adapted to the.particular burglary under consideration may be received in evidence' if they were found with others appropriate for the crime. There the prosecuting officer laid before the jury a lot of implements taken from the possession of the defendant, some of which might probably have been used in the alleged burglary while other instruments among them were not adapted to the commission of that particular offense. Without sanctioning the admission of evidence merely tending to show that the defendant had in his possession instruments adapted to the commission of other crimes,” said the Supreme Judicial Court of Massachusetts, “we think we may sustain the present ruling, as justified by the character of a portion of the tools and implements, thus found and exhibited as a mass or entire parcel.” I hardly think any case can be found, however, which goes so far as to hold that in a prosecution for burglary the district attorney may put in evidence implements which he has expressly proved not to have been employed in the commission of the offense for which the defendant is on trial, and which were not found with instruments adapted to the commission of that offense. Even if we indulge in assumptions to the extent of likening the placards here to burglars’ tools, we have the clear, express and unequivocal declaration of the principal witness for the People to the effect that these documents were not used in perpetrating the offense charged in the indictment.

I think we should reverse the judgment appealed from and let the defendant have a new trial.

All concurred.

Judgment of conviction reversed and new trial ordered.  