
    Supreme Court—Appellate Division, First Department.
    November, 1902.
    THE PEOPLE v. LEON STEDEKER.
    (75 App. Div. 449.)
    1. Betting and Gambling—Penal Code, Secs. 343, 351.
    The occupying and keeping a place with paraphernalia for making, recording and registering bets and wagers constitute a crime punishable under section 351 of the Penal Code, and section 343, Penal Code, and section 17 of chapter 570 of the Laws of 1895 do not take the acts charged out of the operation of section 351 and so render them innocent.
    2. Same—Constitutional Law.
    Section 351 of the Penal Code is not in conflict with section 1 of the Fourteenth Amendment of the Constitution or with the 977th section of the Revised Statutes of the United States, in that it establishes two different punishments for the same offense.
    Appeal by the plaintiff, The People of the State of Hew York, from an order of the Court of General Sessions of the Peace in and for the county of Hew York, entered in the office of the clerk of said court on the 12th day of September, 1902, allowing a demurrer to an indictment found against the defendants.
    
      Howard S. Gans, for the appellant.
    Benjamin Steinhardt, for the respondents.
   O’Brien, J.:

The indictment is drawn with reference to section 351 of the Penal Code and is framed in three counts, all substantially the same, varying only in verbiage1, and charging the defendants, with occupying and keeping a place with paraphernalia for making, recording and registering bets and wagers-. Without, therefore^ setting forth the counts at length, it is sufficient to say that the act charged in each of them constitutes a crime punishable under section 351 of the Penal Code.

This appeal involves two questions. The first is as to whether, by virtue of section 343 of the Penal Code and section 17 of chapter 570 of the Laws of 1895, the acts, charged are taken out of the operation of section 351 of the Penal Code and rendered innocent. This question has been considered and decided adversely to' the contention of the defendants by this court in People v. Levoy (72 App. Div. 55), which was relied upon by the Second Department in passing on the case of People ex rel. Clifton v. De Bragga (73 App. Div. 579).

The second question is whether section 351 of- the Penal Code is in conflict with section 1 of the Fourteenth Amendment of the Constitution and the 977th section of the Bevised Statutes of the United States-, in that it establishes two different punishments for the same offense, and also- for that reason in violation of article 1, section 1, article 1, section 6 and article 3, section 18, of the Constitution of this State. Whatever may be the rule in other jurisdictions, we think that this question is equally well settled by the Court of Appeals in this State in the case of Williams v. People (24 N. Y. 408). and in People v. Havnor (149 id. 195). In the former, it was held that the act of the Legislature which made theft from the person of another of less than twenty-five dollars grand larceny if committed in the city of New York was constitutional, although the same crime in other parts of the State was petit larceny. And in People v. Havnor (supra), where, by chapter 823 of the Laws of 1895, known as the Sunday Barbering Act, it was made a misdemeanor for any person to carry on or engage in the work of .a barber on Sunday, except in the city of ,New York and the village of Saratoga Springs-, it was held that the statute was a valid exercise of the police power by the Legislature, working no- deprivation of liberty or property within the meaning o-f article 1, section 6, of the State Constitution, and did not violate- section 1 of the Fourteenth Amendment of the Federal Coústitution hy denying the equal protection of the laws.

The questions raised on this appeal having, therefore, been passed upon in the cases cited adversely to the- contention of the respondents, it follows that the order appealed from must be reversed and the demurrer overruled.

Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred.

Order reversed and demurrer overruled.

NOTE ON POOL SELLING AND BOOKMAKING.

See Note:, 6 N. Y. Crim. Rep. 225; also, Note, 11 N. Y. Crim. Rep. 278.

This section makes either of three things criminal: (1) If the person occupies- or keeps a place with the requisite purpose to record bets-; (2) if the person in fact does record bets, or (3) if the- owner or occupant of premises knowingly permits: the same to be- used for this- purpose, such acts are made misdemeanors. (People v. Kelly, 3 N. Y. Crim. Rep. 273.)

This statute does- not refer to- transactions- where the stake is put up by a stranger. (Coney Island Jockey Club, 74 St. Rep. 144.)

A corporation may give premiums or prizes, when it is incorporated for' such a purpose. The words “ bets- ” or “ wagers ” are not similar in meaning to the words “ purses,” “ prizes ” or “ premiums.” (People v. Kelly, 3 N. Y. Crim. Rep. 274.)

Pool selling at horse races was declared -to- be void by the Revised Statutes. (Brennan & Brighton v. V. R. Assn., 56 Hun, 189, 30 St. Rep. 407.)

This remained a law until 'the enactment of the Penal Code. The Code wasi not intended to do_ and did not legalize such transaction unless permitted by such laws. (Id.)

The effect of chapter 479 of 1887 is that sales of pools may be made between May 15th and October 15th, but they must be confined to the tracks where the races take place and on .the same day as the races for which the" sale is- made. (Id.; see People ex rel. Ottolengui v. Barbour, 5 N. Y. Crim. Rep. 384.)

The ease of Jerome Park Company v. Board of Police (11 Abb. N. C. 342) arose "under the law as it existed in 1882, before the enactment of chapter 479 of 1887.

An agreement by which one party sent through another to a third party money to be bet on -the race track, on the horse to be run that day, was held to be a violation of this section. (People ex rel. Ottolengui v. Barbour, 5 N. Y. Crim. Rep. 381.)

Where- a clerk walks up and down, following his employer, who makes the bets, and records them as they are made, he does not occupy any place upon the grounds for the purpose of recording bets or wagers, within the meaning of section "351, Penal Code. (People ex rel. Sturgis v. Fallon, 11 Crim. Rep. 273, 4 App. Div. 76.)

Two- counts, one for occupying or keeping a room to- be used for gambling, and the other allowing a room to be used for gambling purposes, may be properly joined in one commitment. (Id.)

Defendant charged with keeping a room, etc., cannot shelter himself behind his wife- as the owner of the business. (Id.)

A commitment to answer, upon a charge of violation of section 351 of the Penal Code,” is void, as some of the fifteen acts therein referred to are or may be lawful. (People ex rel. Allen v. Hagan, 16 N. Y. Crim. Rep. 309, 170 N. Y. 46.)

The occupancy of premises not located upon the rack track for recording or registering bets on horse races does not fall within the exception of section 351. (People v. Levy, 16 Crim. Rep. 496, 72 App. Div. 55.)

The originator of the scheme is not guilty of pool selling or book making within section 351 of the .Penal Code. (People ex rel. Lawrence v. Fallon, 11 N. Y. Crim. Rep. 279.)

The fact that the owner of each horse who proposes to compete in the race is required to pay an entrance fee does not make the transaction a gambling transaction. (Id.)  