
    The People, Resp’ts, v. Thomas F. Wynn, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Gaming—Registering wagers.
    Defendant was indicted for recording and registering bets or wagers, and for keeping and employing devices and apparatus for that purpose. The only evidence to prove the offense was that of a detective that he visited defendant’s rooms and found therein a blackboard and desk; that he told defendant he wanted to put five dollars on a certain horse; that defendant said he would not bet, but would send his money to the race track for a consideration and get the best odds he could, and gave him a ticket containing a direction to place that sum of money on said horse at the racé track during the progress of the race, and at no other place or time. Held, that this evidence was not sufficient to justify a conviction. •
    Appeal from judgment of general sessions, convicting the defendant of a misdemeanor.
    
      W. F. Howe, for app’lt; McKenzie Semple, for resp’ts.
   Van Brunt, P. J.

The indictment under which the defendant was convicted contained five counts. The first count charged him with keeping a room for the purpose of recording and registering bets and wagers and selling pools upon the result of trials and contests of speed and power of endurance of beasts; the second charged him with being the occupant of a room for the same purpose; the third, with keeping, exhibiting and employing devices and apparatus for the purpose of recording and registering bets or wagers; the fourth, with recording and registering bets and wagers, and the fifth, with the crime of pool selling.

Upon the termination of the case for the People, the counsel for the defendant moved the court to advise the jury to acquit the defendant on each count of the indictment separately. The court granted the motion as to the first, second and fifth, and denied the same as to the third and fourth counts. After this decision of the court, the counsel for the prisoner asked the court to advise the jury to acquit the defendant upon the third count, which the court declined, and an exception was taken. The same motion was made as to the fourth count, and the same declination and exception. The jury rendered a general verdict of guilty, and from the judgment thereupon entered this appeal is taken.

The only evidence offered upon the part of the People was that of a police officer, who was a detective attached to the second precinct. He testified that on the 17th of May he saw the defendant in a room at 5 Barclay street. He described the premises as being situated in a basement, and consisting of‘a small room into which you first entered, from which a door opened into a large room with one large blackboard, and behind the counter was a great big long desk; upon entering the witness found three men there, one of whom was the defendant. He followed the defendant into the large room, who asked him what he wished. The witness told him he wanted to put five dollars on the horse Fordham running at Gravesend. The defendant told witness he would not bet him, but would take or send his money to the race-track on condition that he would pay twenty-five cents commission, and would put it there at the best odds he could get The witness then gave him $5.25, and the defendant gave him a ticket upon which he ’had marked “ $5. Fordham.”

The following is the ticket: “Please execute for me, on the race-track at Brooklyn, at the races to be held this day on the grounds of the Brooklyn Jockey Club, at Brooklyn, in the county of Kings, state of New York, and at no other place or time, the sum of $5 on Fordham; 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 reason only do Í 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 Brooklyn Jockey Club during the progress of the races this day, and for this purpose I make you my common carriers; for the expense incurred by you in so placing of said Brooklyn Jockey Club I agree to pay the sum of 25 cents.”

The officer thereupon arrested the defendant and took him to the station house. The People thereupon rested their case and the motions hereinbefore mentioned were made.

It was clearly error to submit to the jury any question as to the guilt of the defendant under the third count of the indictment. There was not a particle of evidence which can be possibly twisted or tortured into an offense therein described. The only evidence is that there was a blackboard on the wall. What that blackboard was ever used for is not at all explained by the evidence, and there is no presumption of guilt. It is true that the witness stated that the room was not fitted up as a schoolroom. But blackboards may be innocently used for many other purposes and in many other places than schoolhouses. There was not the slightest particle of evidence which would justify the submission of any question under the third count; and it was clearly error in the court to deny the request of the defendant as to this count of the indictment.

There does not seem either to be sufficient evidence to justify a conviction under the fourth count.

There was no such recording or registering of a wager as brought the defendant within the prohibition of the statute. Although the detective sought to entrap the defendant into a violation of the law, there was a refusal so to do, or to enter into any contract or agreement which would be a violation of the law or from which could be inferred an intention to violate the law. The detective undoubtedly intended to get evidence to convict the defendant of a violation of the law, but the defendant seems to have been too wary to be caught by the chaff which the detective held out to tempt him. If the action of the defendant is capable of an innocent construction he is entitled to receive the benefit of it, and unless no other conclusion can be drawn than that of an intention to violate the law the defendant is entitled to the presumption of innocence.

We think, therefore, that the judgment appealed from should be reversed and a new trial ordered, and the case remitted to the court of general sessions for further action.

Daniels and Brady, JJ., concur.  