
    The People, Resp’ts, v. Samuel Fisher et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    Pool selling—Evidence.
    Upon the. trial of an indictment for pool selling it appeared that three minutes before a race at a course in Hew Jersey a detective in Hew York city offered to maké a bet upon a certain horse which the defendant accepted. He gave the detective a ticket with a number and also a slip of paper intended to constitute the pool seller the agent of the better, but which was blank as to names, dates, places and odds, and was not signed by any person. Held, that the jury, from their knowledge of human affairs and in the absence of evidence to the contrary, might infer that it was impossible that the money had been during the three minutes transmitted to Hew Jersey and there actually invested as directed by the detective; and that therefore they might determine that the whole matter was a •cover to avoid the law.
    
      Appeal from j udgmeiit of oyer and terminer convicting the defendant under the statute against gaming.
    
      W. F. Howe, for app’lts; McKenzie Semple and B. S. Weeks, for resp’ts.
   Van Brunt, P. J.

The indictment upon which the defendant was convicted charged the defendant and six others in seven counts, as follows:

The'first count charged the defendants with keeping a room for •the purpose of recording and registering bets and wagers.

The second count charged the defendants with being the occupants of a room and knowingly permitting the same to be used for the purpose of recording and registering bets and wagers.

The third count charged the defendants with being the occupants of a room, and therein keeping, exhibiting and employing a device and apparatus for the purpose of recording and registering bets and wagers.

The fourth count charged the defendants with recording and registering bets and wagers on a horse called Bootjack.

The fifth count charged the defendants with recording and registering divers unknown bets.

The sixth and seventh counts each charged the defendants with the felony of pool selling.

On the trial the court withdrew from the jury’s consideration the fifth, sixth and seventh counts of the indictment, but submitted the first four counts, to wit: the offense of keeping a room, being occupants of a room, exhibiting devices and apparatus for the recording of bets and wagers, and recording bets and wagers. The verdict of the jury was a general verdict of guilty as to the -defendant Fisher, and all the other defendants were acquitted.

It is claimed that the evidence was insufficient to justify the submission of the case to the jury, and that the verdict was inconsistent with the theory upon which the case was submitted to the jury. And it is further urged that the acquittal of the other defendants is inconsistent with the finding against the defendant Fisher.

The facts appearing upon the trial were substantially as follows : About one o’clock on the 23d of March, 1891, one Freel, .a detective officer of the police of the city of New York, entered the premises in question known as 33 West Twenty-ninth street •and 1213 Broadway.

On the left wall, as he entered Twenty-ninth street, were seven slates containing the names of a number of horses, and also the word *• Gruttenberg ” (at which place there was a race course), and on the first slate the words : “ First Race; ” on the second the words: “ Second Race;” on the third the words: “Third Race.” In the rear of the room was a stained glass partition in which there were three small windows and a door leading.from the room to the office behind the partition. The men employed about the place made several changes on the slates after having been spoken to by the appellant, and a number of persons went to the window, behind which sat the defendant Jones.

At 1.59 o’clock the detective went up to Jones’ window and told him he wanted to put “$3 on Bootjack straight" In answer Jones said “ 5 to 1; 15 to 3." The detective handed Jones a ten dollar bill, who told him it costs five cents commission. The detective then took a ten cent piece out of his pocket and gave Jones the ten cent piece, and Jones handed back $7.05 with the following paper:

“ 778 original.
“ Please execute for me, on the race track, at the races to be held this day on the grounds of the at Guttenburg, in the
Gloucester, county of, State of and at no other place or time; the sum of , on
but do not, under any circumstances, accept odds in this race at the said race track at a less price than
“ I desire it to be positively and distinctly understood, and for this only do I place in your charge my money, that you place my said money for me only on said horse above mentioned, and at no other place than on the grounds of the said during the progress of the races this day, and for this purpose-1 make you my common carriers. For the expense incurred by you in so placing my said money on the said grounds of said- , I agree to pay you the sum of five cents.”

for what purpose does not clearly appear, as there is nothing whatever to connect it with the transaction testified to except its number, the blanks left in it making it absolutely of no import. Two minutes after two it was announced from the office behind the partition that the horses were at the post, and at seven minutes past two that the race was over, and that the horse “Young Duke ” was the winner. Young Duke’s name was on one of these blackboards. The detective then left, and in a few minutes returned with several other officers, and they arrested the persons found in the place and seized everything in sight. Going behind the partition into the office, the officer saw various of the defendants apparently attending to their duties. All the defendants were arrested and taken to police headquarters, the appellant admitting that he was the manager of the place.

Among other things seized was a file containing 128 duplicates of the paper given to the defendant (except the number marked on the face) among which was one numbered 778 marked 15—3 Bootjack; and also a sheet containing the words “ Guttenberg, First Race, March 23, 1891," which was lying in front of the defendant Spencer, the cashier,, upon which appears the entry “778 15—3” under a column headed “ Bootjack."

Upon this evidence the jury found the defendant Fisher guilty and acquitted the other defendants.

Although the verdict may be incongruous, as the evidence shows the defendant Jones to have been as-guilty as the defendant Fisher, yet it is apparent that the jury found their verdict against the principal, and allowed the instruments by which the principal was violating the law to escape. Because the jury were too, lenient to some oí the defendants is no reason why the appellant should be allowed to go free.

It has been claimed that the evidence in this case is no stronger than that which appeared in the case of the People v. Wynn, 35 St. Rep., 487, where this court held that there was not sufficient evidence to go to the jury to convict the defendant under the statute in question.

And there is no doubt that there was a childish attempt to bring the action of the defendants herein within the ruling contained in the Wynn case. But the probative force of the evidence in tthe two cases is as wide apart as the two poles. In the Wynn ‘-case there was an express refusal to take a bet; and there was a contract tb place the bet upon the track made out with all the particulars, and there was sufficient time in which that contract might have been carried out. In the case at bar the evidence is that the detective stated that he wanted to bet so much money on a certain horse and he was accommodated. The handing out of a paper Containing some printed matter upon it which was absolutely meaningless unless the blanks in it were filled out did not alter in any way the nature of the transaction, although it was, as already observed, a childish attempt to imitate what had been done in the Wynn case.

The only part of that paper that was of any value was the number thereon which put its earmark on the transaction. That this was so is -evidenced by the fact that duplicate tickets with the same number recording the same transaction in the form given by the detective were found, and also the sheet lying before the ■cashier at the time he was arrested. The transaction was had in Hew York city three minutes .before the race commenced, and though it is claimed that there was no evidence to show but that this money was transmitted by telegraph to the race course, yet the jury had the right, from their own knowledge of human events, to determine, in the absence of evidence to the contrary, whether such a thing was possible or not, and if they found it to be impossible to come to the conclusion that the whole was a mere cover for the purpose of violating the law.

It might be just as well .said that if a crime was committed at the Battery on one day an alibi might be proved by showing that the defendant was in the City Hall park the next, in the absence of evidence that it was possible to go from the Battery to the City Hall park within the time embraced within the two events. This is undoubtedly an extreme instance, but it only illustrates the principle that in the consideration of testimony the jury has a right to be governed by their knowledge of human affairs. Distances, geographical positions, the relation of the seasons, are things with which everyone is supposed to be familiar; and in the absence of evidence upon the subject, in the weighing of testimony the jury has a right to be governed by the knowledge which is common to men. And if they were of opinion that it was impossible that this commission could have been executed upon the Gfuttenberg track, they had a right so to find in the absence- of the slightest particle of evidence, or any attempt upon the part of the defendant to prove that anything of the kind had been done.

It is true that a defendant is not bound to prove that he has not committed a crime, but where the circumstances point necessarily towards guilt, if the inferences which naturally follow are not to be drawn, then some evidence tending to a different result must be given.

We have thus the offer of the detective to bet, the acceptance of the wager, and in the books and papers seized unanswerable indications that such bet or wager had been recorded.

As to the claim that there was not sufficient evidence to holde the defendant Fisher, it is sufficient to 'say that he admitted he was the manager of this establishment, exercising supervision and control over it, was behind the doors of the private rooms in which the tickets were sold, and was using a book on the cover of which was written W. U. Telegraph Co, and below “Fisher’s, 33 West 29th Street.” This evidence was clearly sufficient to show that the defendant was the manager of this business, and was the real principal in the commission of the crime charged.

We think upon the whole case, therefore, that the conviction should be affirmed.

Andrews, J., concurs.  