
    Supreme Court, Appellate División, Second Department.
    April, 1904.
    THE PEOPLE v. JOSEPH CANEPI.
    (93 App. Div. 379.)
    1. PoolSElling—Evidence Necessary to Convict.
    Where the testimony was, that on the day mentioned in the indictment, poolselling was conducted in a building occupied by defendant as a liquor saloon, that he was present for five minutes in the room talking with one C. while the latter was hanging up the cards bearing the names of the horses entered for the races, and that the day before defendant had refused to allow a police officer to enter the room and that a telephone had been placed in the pool room upon .application of defendant, it is sufficient to sustain a finding that defendant assisted and abetted pool-selling.
    2. Same—Trial—Instruction as to Punishment.
    '. It is not error for the Court to instruct the jury as to the punishment which may be inflicted upon the defendant if found guilty.
    Appeal by the defendant, Joseph Canepi, Jr., from - a judgment of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the ist day of June, 1903, upon the verdict of a jury convicting the defendant of the crime of poolselling in violation of section 351 of the Penal Code.
    David H. Hunt, for the appellant;
    J. Addison Young, for the respondent.
   Willard Bartlett, J.:

There is no evidence in this case that the - defendant actually engaged in poolselling himself; but I think the proof is sufficient, within the rule which requires the establishment of criminality beyond a reasonable doubt, to sustain the finding that the defendant on the day charged in the indictment (July 26, 1902) assisted and abetted poolselling in violation of section 351 of the Penal Code, and, hence, that he became liable as a principal. (See Penal Code, §29.)

The defendant went to the jury without offering any evidence whatever. The proof in behalf of the prosecution showed that on July 26, 1902, in a room upstairs in a building at Yonkers occupied by the defendant as a liquor saloon, poolselling on the horse races at Brighton Beach was going on; that cards were brought from behind a partition in this room and hung on the wall by a man named Cunningham, which cards bore the names of the horses entered for each race and were consulted by the persons in the room before they made their bets; that for a period of five minutes the defendant was present in the room talking with Cunningham while the latter was engaged in hanging up these cards, and that the defendant exercised control over access to this room, having on Friday, July 25, 1902, refused to allow a police officer to enter it, but saying that the officer could do so on the following Monday, adding: “I am through. . Mrs. Engle is going to take the rooms. * * * I am going to hire the rooms to Mrs. Engle.” This was after the policeman had told Canepi that he heard he was running a poolroom, and Canepi had told him that nothing of the sort was going on.

The evidence introduced by the People further showed that a telephone found in the poolroom had been placed there upon the application of the defendant. The telephone contracts, which the defendant signed, contained the following words, under the heading Matters for Subscribers’ List: “Canepi, Joseph, Jr., St. James, 12 Palisade Avenue.” The witness who testified to Canepi’s presence with Cunningham in the poolroom received from the hand of an unseen person behind a partition therein a ticket as a voucher for the money which he bet on one of the races, and upon the face of this ticket were printed the words ‘ ‘St. James Club.”

Without a further review of the testimony, I think it sufficient to say, so far as the facts are concerned, that this record clearly establishes the defendant’s complicity in the conduct of poolselling upon the premises under his control.

Some questions of law are raised which it is necessary to notice. The learned counsel for the defendant likens this case to that of People v. Shannon (87 App. Div. 32), where we reversed a judgment of conviction upon the same indictment. The defect in that case however, was the failure to prove Shannon’s presence on any day when pools were sold, although there was evidence that pools were sold on days when the testimony did not show that he was present. The effort there was to establish Shannon’s' active participation in the selling of pools, and we held that the trial court erred in refusing to charge the jury that they must not find him guilty unless they found that he was engaged in pool-selling on July 26, 1902. Here, Canepi was proved to have been present in the poolroom on that date, one important step in the selling of pools being taken .in his presence by the person with whom he was conversing at the time, while the other evidence to which reference has been made shows that he was the protector, if not the principal promoter, of the poolselling business.

Just before the jury retired the following colloquy occured between counsel and the court: “Mr. Young: When your honor read the statute in full you stated the penalty. I ask your honor to charge the jury that under the statute the crime is punishable by fine or imprisonment. Mr. Hunt: Objected to. The Court: I have read the statute. I read the statute that the defendant might be imprisoned in State’s prison for not exceeding two years, and that he might be fined for an amount not exceeding two thousand dollars. That means from imprisonment of from one to two years — not from one day up; or it means a fine of from one cent up to two thousand dollars. It cannot be both. [Exception to defendant.] Mr. Hunt: I ask your honor to charge that your statement—having charged on this subject the fine may be from one cent, is no intimation to the jury that your honor will fine one cent. . The Court: No; I don’t give any intimation to the jury what I will do.”

It is not suggested that the final statement of the learned county judge as to the penalty prescribed by law was incorrect, but it is argued that it was error to give the jury any instruction whatever as to the punishment, the idea apparently being that they may have been influenced to convict by the impression that the district attorney would ask for only a light sentence. This view strikes me as rather fanciful. I can hardly see how this- jury can have been misguided by being told simply what were the possible consequences of a conviction at their hands. The case is not at all like People v. Chartoff (72 App. Div. 555), where the objection to the instruction on the subject of punishments was that it permitted the jury to assume that different and less stringent rules applied to the conduct of a trial for a misdemeanor than to the conduct of trials for offenses which the law punishes more severely. There was no comparison of the sort here, and I cannot assent to the doctrine that it is legal error to tell a jury what the Legislature has put into the statute book in reference to the punishment of the very crime of which they are called upon to take cognizance.

I find no errors in this record affecting the substantial rights of the defendant, and, therefore, conclude that the judgment should be affirmed.

All concurred. 1

Judgment of conviction affirmed.

NOTE ON CHARGING JURY AS TO RESULTS OF ITS VERDICT.

The law in the State of New York, relating to the judge’s charge and to requests to charge, is in hopeless confusion. In the matter of charging juries with respect to the consequences of their verdicts, there are a number of discordant rulings, which we observe in their order.

In a case in the Second Department a prisoner was on trial for murder in the first degree, and the jury asked to be informed what was the punishment of murder in the second degree, to which the court said that that was a matter which was not for their consideration. Held; error as “in all cases the jury should know the effect of their verdict” (People v. Cassiano, 30 Hun, 388; 1 N. Y. Crim. R. 505).

Subsequently, in the First Department, it was claimed, as ground of error, that the judge had not instructed the jury as to the extent of the punishment. The opinion, however, noted that no request for any such instruction had been made ; and affirmed the conviction, distinguishing the Cassiano case (People v Reavey, 38 Hun, 418; 4 N. Y. Crim. R. 1; reargument-denied, 39 Hun, 364; 4 N. Y. Crim. R. 23; judgment affirmed, 104 N. Y. 683, no opinion.)

Subsequently, and also in the First Department, the question was squarely presented. The court was asked to define the punishment of each of the crimes mentioned in the indictment; refused ; exception. Held, no error; it was in no way within the range of the jury’s province; it was their duty, by their verdict to give effect to the evidence, and to that alone. (People v. Ryan, 55 Hun, 214; 7 N. Y. Crim. R. 448.)

In the Chartoff case, in the Second Department (distinguished in the main case, supra), the judge charged that the jury were to convict upon the evidence alone, without considering the possible punishment; adding, however, that the case was a misdemeanor and was not of the character of trials which they had heard which involved charges far more severe in their punishment. Held, error, justifying a reversal. (People v. Chartoff, 72 App. Div. 555; 16 N. Y. Crim. R. 512)

The last case is the main case of Canepi, supra.

The reversals in these Cassiano and Chartoff cases were clearly unwarrantable. It is incredible that sane jurors could have been affected by the action of the judge in either of those cases. Moreover, the Chartoff case is at variance with the rulings of the Court of, Appeals in the Tuczkewitz case. There the trial judge had made inapt remarks upon the pardoning power, doubtless for the purpose of intimating that even if the jury found the defendant guilty, he would not necessarily be put to death. The Court said that the remarks “might properly have been omitted;” but held that they did not justify a new trial (People v. Tuczkewitz, 149 N. Y. 240; 12 N. Y. Crim. R. 49). A somewhat similar situation arose in the recent Flanigan case, where the judge commented upon, the trial of Czolgos, the assassin of President McKinley; but it was held that this did not require a reversal. (People v. Flanigan, 174 N. Y. 356; 17 N. Y. Crim. R. 300.)

A peculiar circumstance in connection with the subject of the charge in criminal cases is that the courts ignore the provisions of Sec. 420 of the Code of Crim. Proc., which says: . “In charging the jury, the court must state to them, all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact.”

This section is in line with Sec. 542, and other like sections, which require technical errors to be disregarded.

When the Code of Criminal Procedure was enacted, the Legislature was undoubtedly aware of the vexatious process of making innumerable requests to charge for the purpose of trapping the trial judge; and must have intended, by the enactment of Sec. 420, to authorize him to deliver such a charge as, in his discretion, was needed. The writer has never discovered a case in which Sec. 420 has been discussed as making the trial judge the arbiter of what is proper to be charged.

In the light of Sec. 420, it is submitted that the trial judge has discretion to inform the jury as to the extent of the punishment, or to refuse to do so; and that no error can be predicated either of his vouch-safing or refusing the information.

R. C. T.  