
    The People of the State of New York, Respondent, v. Morris Smoke and Joseph Gallart, Appellants.
    Supreme Court, Appellate Term, Second Department,
    April 3, 1963.
    
      Sidney G. Sparrow for Morris Smoke, appellant. Evseroff, Newman & Sonenshine (Gustave H. Newman of counsel), for Joseph Gallart, appellant. Frank D. O’Connor, District Attorney (Eileen M. Thornton of counsel), for respondent.
   Nicholas M. Pette, J.

The complaint charged that defendant Smoke aided and abetted in book-making activities and that defendant Gallart permitted premises under his control to be used for such purpose, all in violation of section 986 of the Penal Law.

The essential facts are not in dispute. It was established at the trial that Smoke was engaged in furnishing the results of horse races to book-makers by telephone and that he paid Gallart for the use of his premises and telephones. There was no evidence of betting or wagering.

The basic question here posed is whether the transmission of racing results in the manner indicated constitutes such aiding or abetting as is proscribed by section 986. This section sets forth various categories of illegal conduct, which, for present purposes, will be subdivided as follows: (1) engaging in bookmaking; (2) keeping a place for the purpose of recording or registering bets on wagers; (3) recording bets, receiving or forwarding any money, thing or consideration of value, bet or wagered, or offered for the purpose of being bet or wagered; (4) permitting premises to be used by others for any of the purposes previously mentioned or becoming the custodian of anything of value wagered upon results; (5) aiding and abetting in any of the forbidden acts.

At the outset, it is well to keep in mind that criminal statutes should he construed narrowly so that acts, otherwise innocent and lawful, do not become crimes unless there is a clear and positive expression of legislative intent to make them criminal (People v. Shakun, 251 N. Y. 107, 113). This is especially true of statutes dealing with crimes in the class of mala prohibita (People v. Bort, 53 N. Y. S. 2d 345, 348), such as the one with which we are here concerned (McDonald v. United States, 335 U. S. 451, 459).

In the situation at bar, the corpus delicti of the crime of bookmaking is the acceptance of bets on a professional basis (People v. Abelson, 309 N. Y. 643, 650). Since there was no evidence of book-making here, no basis exists for charging Smoke with aiding and abetting under the first category of section 986. Apparently the trial court concluded that Smoke was aiding and abetting under the third category, that is, by forwarding to book-makers information which in its opinion was a very valuable thing.” In the same connection, the District Attorney contends that it would be unrealistic to hold that ¡Smoke was not assisting or aiding a book-maker in any manner.

It will be helpful, at this juncture, to consider the exact text of that portion of section 986 upon which the trial court appears to have placed reliance, namely: any person who * * * forwards or purports or pretends to * * * forward in any manner whatsoever, any money, thing or consideration of value, bet or wagered or offered for the purpose of being bet or wagered, by or for any other person, or sells pools, upon any such result * * * is guilty of a misdemeanor ”. (Emphasis supplied.)

As will be observed, the foregoing provision makes it a crime to forward any thing or consideration of value wagered or offered by or for any other person. Can it be said that one who furnishes racing results is forwarding any species of value which is susceptible of being wagered by or for someone else? Manifestly, the trial court has taken the term “ thing * * * of value ” out of context and ascribed to it an expansive meaning not warranted by the statute. Since this phrase is immediately followed by the words bet or wagered * * * by or for any other person,” it must, under the rule of ejusdem generis, be restricted in its meaning only to things of value which are or may be wagered. By no stretch of the imagination may the dissemination of a racing result be deemed a “ thing * * * of value, bet or wagered * * * by or for any other person ’ Hence it is my view that no case has been made out against Smoke under the third category.

Absent any proof of aiding and abetting on the part of Smoke, the ease against G-allart for permitting his premises to be used by Smoke in the manner charged in the complaint must likewise fall.

There is surprisingly little authority in this State on the subject under discussion. The only case which research has brought to light is People v. Pollack (204 Mise. 64). There it appears that one defendant, from a vantage point inside a race track, signaled information to a codefendant stationed in a house outside the race track, from which it was relayed by telephone to a music company for transmission over leased wires. The question presented was whether the transmission of racing results with knowledge that such information would or could be used by book-makers rendered the supplier of such information amenable to the sanctions of section 986. In a well-reasoned opinion, Magistrate (now Supreme Court Justice) J. Irwin Shapiro answered the question in the negative. In the course of his opinion the learned Justice stated what is equally applicable here (p. 67):

“ [I]t is not the information conveyed to the book-makers through the instrumentalities of the defendants * * * that is illegal, but it is the use to which that information is put which is illegal. Many of the New York newspapers devote a great deal of their space to the outpourings of handicappers engaged by them which attempt to predict the outcome of races to be run. Could it seriously be contended that because that information is used by persons to gamble and in book-making that the sports reporters and the newspapers which disseminate such information could be held liable for aiding and abetting-in the crime of book-makingf

“ If the contention urged by the People is sound, every manufacturer of playing cards and dice, knowing or being chargeable with the knowledge that in many cases those cards and dice would be used by professional gamblers, would be guilty merely because of the manufacture and distribution of those cards and dice. It is obvious on reflection, that it is not the manufacture of those articles and their distribution that is illegal, but the use to which they are put.”

Decisions in other jurisdictions to similar effect are reviewed in the Pollack case. Particularly apposite is People v. Brophy (49 Cal. App. 2d 15), where it was held that the furnishing of racing news to book-making establishments by telephone did not constitute an aiding and ábetting in violation of the statute dealing with book-making. The court also declared that the furnishing or receiving of racing or sporting information is not gambling and is not a crime.

See, also, State ex rel. Dooley v. Coleman (126 Fla. 203, 206) where the Florida Supreme Court stated: ‘ ‘ It is no violation of the criminal code that information may be transmitted by means of the telephone concerning the results of a horse race * * * but it is the use which persons make of that information which constitutes the violation of law. ’ ’

Returning to the case at bar, the District Attorney seeks to distinguish Pollack upon the ground that the defendants in that case impliedly knew that on occasion the information furnished would be used by book-makers while in the instant case there was actual knowledge. The attempted distinction appears tenuous and finds no support in the reported decisions.

It is further argued that the present situation is quite different from that engaged in by 1 ‘ legitimate disseminators of news.” The logic of this argument escapes me. Is it thereby suggested that the imparting of the same information would be lawful by one means of communication but unlawful by another? I know of no such distinction in law, and if any there were its validity would be open to serious question.

Indeed, if the activities of defendant Smoke, which this court in no wise approves or condones, can be said to offend the gambling statutes, it should logically follow that other modes of communication, such as radio, television and newspapers, which transmit similar information are equally culpable. But since section 986 does not make it unlawful to forward racing information, I see no need to belabor the point. Suffice it to say that the People have failed to establish any violation of the Penal Law as alleged in the complaint.

Accordingly, the judgments of conviction should be reversed on the law and the facts and the complaints dismissed.

George Eilpeeie, J.

(dissenting). I do not agree with the conclusion of my colleagues. The facts briefly stated are these :

The appellants appeal from judgments of conviction entered against them in the Gamblers ’ Court convicting them after trial of violating section 986 of the Penal Law. The police officer testified that he arrested defendants on March 1 and that prior thereto, to wit, on February 26, 1962, he made three phone calls and that on March 1 he made several other calls. As a result of the foregoing telephone calls he obtained a search warrant for the premises in question. He ascertained that one of the phone numbers was listed in the name of the defendant Gallart and the other phone number in the name of one John La Salle, both of the same address. Pursuant to the warrant he went to said premises, rang the bell and was admitted by the defendant Gallart. He showed Gallart a copy of the search warrant, whereupon he responded “ O. K. you got us.” He inquired of Gallart where Moe was since Moe was the individual with whom he had had the respective phone calls, as the testimony discloses. He was advised by Gallart that Moe was upstairs. He saw Moe seated at the table with the telephone instrument in his hand and to his ear. Moe Smoke was making notations on a sheet of paper; the officer identified himself to Smoke, showed the search warrant and seized the sheet of paper which was in front of him. The testimony discloses there were notations on the sheet of paper and in the opinion of the police officer these notations were the names of race tracks located in the United States and that some of the numerals written thereon corresponded to the numerals that were given to him when he made the call to the exchange to which Moe responded. The officer had a conversation with the defendant Smoke, after which he placed Moe under arrest. The conversation was as follows:

Q What did you say to him and what did he say to you? A I told defendant Smoke I know he was giving out the results to the bookmakers and defendant Smoke said, “yes, I give the results to bookmakers.” I said, “you are getting calls from all over the country?” He said, “no, I don’t get calls from all over the states, I get them from one main guy in Manhattan.” I asked him how many bookmakers or persons did he service with these results. He said, “ I got about twenty accounts.” I says, “ are you the boss? ” He said, “no.” I said, “you must be a clerk.” He said, “yes, I get about $100 a week to work the phones. My boss gets the money for the service from the accounts to call here.” I asked him if it was a weekly or daily charge and defendant Smoke said, “it’s a weekly charge.” Then I asked him about People’s Exhibit I, which is entered in evidence. I asked him if that was his handwriting on there. Defendant Smoke said, “ yes, that’s my writing,” and he continued, he said, “ that’s the results from all the tracks in the U. S. and the prices paid.” I asked the defendant his name and he said, “ my name is Morris but everybody calls me Moe.” I asked him how much he pays to use the phones and the premises to the defendant Gallart and defendant Smoke said, “ I pay him,” indicating Gallart.

The officer further testified that he identified the defendant Smoke’s voice as that of Moe with whom he had had prior telephone calls before the issuance of the search warrant. The defendants did not take the stand. The contention of the defendants, as well as of my colleagues, is that the transmission or dissemination of racing results to book-makers with knowledge of the fact that it may be used by them does not constitute the crime of aiding or abetting persons engaged in book-making activities in violation of section 986 of the Penal Law. I am of the opinion that this contention is without merit. It is my opinion that defendant G-allart would be violating section 986 of the Penal Law if he aided or abetted in any of the activities referred to in that section. The only New York ease on the subject is People v. Pollack (204 Misc. 64). In that case it appeared that defendant Pollack from a position inside a race track signaled information to a codefendant stationed in a house outside the race track. When the information was received it was telephoned to the Delaware Wire Music Co. and transmitted over its leased wires. The Delaware Company appeared in the proceeding and claimed its business was the distribution and dissemination of music and all types of sporting news. The court stated the problem at page 66 as follows: Thus the question narrows itself down to whether the transmission of such racing information, with implied knowledge of the fact that upon occasions it may or will be used by bookmakers in the furtherance of their illegal enterprises, makes the defendants transmitting such information * * * and those aiding and abetting them therein * * * guilty of any or all of the crimes ultimately committed by such book-makers, policy players, etc.” The court answered the question by finding that the defendants’ activities did not constitute a crime.

Assuming for the purpose of this discussion that the Pollack case is the law of the State, the appellants overlook the fact that the recipient of the information in the Pollack case was the Delaware Wire Music Company, which was engaged in the distribution of music over leased wires and the dissemination of news, including all types of sporting news. (See People v. Pollack, supra, p. 66.) In the case at issue there was an absolute unequivocal admission by the defendant Smoke, “ yes, I give the results to bookmakers ” and in response to the officer’s questions as to how many book-makers or persons he serviced with these results, he said “ about twenty accounts.” This certainly places Smoke as well as Gallart, who permitted the premises to be used for improper purposes, in the category of aiding and abetting any of the foregoing activities specified in section 986 of the Penal Law. It would negate the very intention of the Legislature and society that one who is in the employ of book-makers should be placed in the same category as periodicals, radio and television which disseminate the results of sporting events.

Accordingly I vote to affirm the judgments of conviction.

Di Giovanna, J., concurs with Pette, J.; Eilpeexn, J., dissents and votes to affirm in opinion.

Judgments of conviction reversed on the law and facts, and complaints dismissed.  