
    The People of the State of New York, Respondent, v. Jacob Baum, Appellant.
    Third Department,
    June 24, 1909.
    Municipal corporations — validity of ordinance against entering gambling house — constitutional law—police power.
    The ordinance of the city of Schenectady providing that a fine or imprisonment shall be imposed upon any person found in a gambling house is void, not being a proper exercise of the police power, in that a person is punishable thereunder, no matter how innocent the purpose for which he might go upon such premises.
    
      Appeal by the defendant, Jacob Banin, from a judgment of the County Court of Schenectady county, entered in the officé of the clerk of said county on the 23d day-of December, 1908, affirming a judgment of conviction rendered against the defendant by the Police Court of the city of Schenectady.
    
      John H. Gleason, for the appellant.
    
      Walter Briggs, District Attorney [Del B. Salmon of counsel], for the respondent.
   Kellogg, J. :

The defendant was convicted of violating a city ordinance in “ being found in a gambling house at the. corner of State street and South Center street” on the 15th day of June, 1908. The ordinance provided that: “ Every person being a vagrant, mendicant, .street beggar, or persons soliciting alms or subscriptions for any persons whatever, except when authorized by an organized religions body, and any prostitute or gambler,' or any person, male or female, found in a house of prostitution or gambling house, shall upon conviction be punished by a fine of not less than ten dollars, nor more than twenty-five dollars, and stand committed until such fine be paid, not exceeding one day for each dollar of fine imposed; or shall be imprisoned at hard labor or not, in the discretion of the Police Justice, for a period not exceeding one hundred and fifty days.” - ■

The exddence showed that the defendant, with' others, was found by the police sitting in a room in xvhich there were certain devices, alleged to be gambling dexdces. It does not appear that any gambling had ever taken place in the room, nor for xvhat purpose or under what circumstances the defendant entered the room or that the alleged gambling devices had ever been used there. It is not necessary to discuss xvhether the alleged gambling devices found in the room are sufficient to justify the conclusion that this was a gambling house. Under the reading of the ordinance if the policeman had found a gasman taking the meter, or even removing the meter for non-payment of bills, or removing the meter because it was thought unlawful to furnish a gambling house with gas, or for any of many innocent purposes for which; a man might go upon the premises, he would be equally guilty. ' -

While the common council has ample power to enact ordinances to preserve the public peace and good order, to prevent and suppress vice, immorality, disorderly and gambling houses, under subdivision 1 of section 36 of chapter 371 of the Laws of .1903, the ordinance in question is too broad. An ordinance might perhaps provide that a person found in a gambling house shall be presumed to be there for the purpose of gambling, unless it is shown to the contrary. (People v. Cannon, 139 N. Y. 32.) The facts which may be declared as presumptive evidence of guilt cannot be forced from their ordinary interpretation and must have some legitimate hearing tending to show that the defendant was probably committing a crime.

- The ordinance in question is not one of presumption, but the mere fact of being found in such a place is criminal, and the defendant is not permitted to explain or show for what purpose he was present. It is not, therefore, a proper exercise of the police power. (Fisher Company v. Woods, 187 N. Y. 90.) For that reason no offense was proved against the defendant, and it is unnecessary to consider the other questions raised upon the appeal. The judgment of the County Court and the Police Court should, therefore, be reversed.

All concurred.

Judgment of the County Court and Police Court reversed.  