New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-02-19
CASE or THE INDICTED GAMBLERS
The chamber Of The Court of Session. was crowded

Yesterday morning by parties interested directly and
Indirectly in the decision Of the Court in the cases of
the indicted gamblers who had entered pleas Of guilty
the previous week Pat Hearne, William Mathews,
Alexander Blackman, johnny Ling, Michael Smith,
ard others, were prese Mt with their counsel.
At III o'clock Judge Capron caIno into court Ia
the case Of Joseph s. Hall, on the motion to quash
the indictment, the Court proceeded 10 deliver the
suhjOined Opinion:
This IL an indictment for violations Of the various
provisions of the Act more eiectualy to suppress
Gambling" passed July 10, 1851.
The defendant moves to quash the indictment on
several grounds, and will consider them in the order
IN which they have been presented and discussed.
Before proceeding in my task 1t is due 10 the coun-
sci who have ably and deliberately argued the mo-
ton before me- to state that have been prevented BY
pressing empOyments which could not be consistently
neglected, from bestOwng upon the subject the atteD
ton and study which It's Importance demands, and |
make this apology with the greater freedom from the
consideration that any errors which | NAV commit
can be promptly corrected by superior jurisdiction
without infctlng on the defendant any serious injury.
The defendants first objection is, that this Court
has not Jurisdiction 10 entertain this indictment, BE-
cavse the o6enses SCI forth an tt are misdeneanors.
his objection is founded on the fifth section of the
statute Of 1855, which coners erclusiDe jurisdiction
the Special Sessions in all cases of misdemeanOrs in
this CITY, and il distinctly presents the question whether
ebenses against the gambling act are m'sdeHseanors, or
are feloniee.
The language of this statute s If any person. for
bling table and forth, he sh0H be taken and held
Gas common gambler, and SO forth, and shall be
senenced 10 not less than ten dayS hard labor IN the
" pCnlcHti0rv or not more than two hard labor
"in the STATE Prison, and be fined in any sum not
" more than one thousand dollars" and 80 forth
Common gambling, il Is said, was at common law
only misdemednOr, and the term felony" not being
ueed in the Gambling Il the character Of the crime is
not raised to felony by increasing the punishment to
Imprisonment il the State Prison. e X. S., page 1902
Sec 34-3O.)
IL support of this proposition the People Va. Ward
is Hill 39j affirmed in Hill, page li,) Is cited but
have never considered that case settling the
struction Of the 3Oth section just mentioned. The
learned Judge who delivered the opinion of the Su-
preme Count in that case admits that the question was
IN no way involved in the case which he was examin
ing he mentions it only incidentally, and says am
"Iqclined TO think the Legislature did not accomplish
"tbeir object" e., fix the legal characteristics of all
fcOnes in this State and consequently Of mlsdemean-
Ole He was inclined TO think that the Legislature
Lad only defined felony in the cases in which the
crime was named felony in statutes leaving common
law feones unaffected, and the argument adduced
from the authority and applied here is, that violations
Of the Gambling Act are not fconies because they are
not 20 declared in that statute.
hive always regarded the language of the 3Oth
section antamOunt TO this: An offense for which
the offender Oh conviction, shall be liable by law to be
punished by death, or by imprisonment in a State
Prison, shall be construed to mean felony. the
language Of the section Is: The term felony,
" sohet ased an this act, an any other statute shall
"be construed to mean an Ofense for which the
offender, conviction, shall be liable by law to be
punished by death or imprisonment in a State
Prison" This is but another form of speech for say
ing that felony ehal be an Ofiense, which may be
punished by imprisonment in ate Prison, and when
used in any statute the term shall be 80 under
stood. Upon this Interpretation the oiense OF gamb-
ling is teiOny because the offender may be paa1sted
IN n State PrlsOH. am aware that one or two other
decisions similar to that lin 81 and 9th Hill have been
made by Judges who simply cited that cise, and made
no argument; but regard the construction OF the
3Oth section still an open question.
But we are not without high authority for the con-
structOn on which insist. Say several English
witeis: AT common law the only ieOnes were murder,
" nianslaughter arson, treason, burglary, robbery,
" rape. sOdomy, mayhem aud larceny. By statutes,
however running from the earliest periods, new feo-
MES were from time to time created, TIL finally not
only almost every heinOus otense against person or
property included within tins class, 6Ht II mas
d" ied that whenever judgment of life or member was
affixed by statute, the otenSe TO Wh'ch Il w1s A.
ached became felonious by impitcaiioH though the
" word felony w0s not used ~ tie statute" Upon
whit principle the decision OF the English courts
fonncdl Ii was upon that Of analogy, drawn from
the feet that Parliament had for senes of years a.
tachcd 10 feOnee created by statute a uniform char
sctor of punishment. When, therefore, statute Of
Tense was created, If its grade on the scale OF crime
was not named in the enactment, II was by implication
held TO be felony if the prescribed punishment was
the same in character that had been established by
Parliament in statute felOnles. Il Hale, 7OJ; Hawk,
c. 40, s.2.)
If we apply this very reasonable rule in the con-
s,ruction OF our own statutes gambling Is felony.
Il If statute oflense, and although 1t Is not named
felony" in the act, yet as may be punished with
the same grade OF punishment prescribed by the Legs
laure for all statute felonies, it Is Itself felony
II will be perceived that this argument is maintained
wholly irrespective of the construction which may be
given TO Revised Statutes 702, section 80.
Ii is also argued that " similarity of punishment
,-be, not the cRiy pHnishraeRt does not necessarily
make crimes felons." The soundneSs of this position
If not transparent in the bare statement, and to appe-
cate it's force reference must be had to the particular
statute or law under consideration. IL Is not alowa-
bic in the Interpretation OF statute to wrest the PLAIN
language from its obvious meaning, even to favor
liberty The words of the 30th section are, hen
the offender shall be liable to punishment IN State
prison" &c. No matter, then that another punish
tfnt may be inflicted in the discretion OF the Court.
TIE argument proves too much, for applied IN all ITS
force the power OF exercising discretion would be
wholly taken away in all cases. Judges would be
forced by the rule to nct the lowest degrees OF pen
atty in every case.
There is another view which may further elucida.e
the question. Gambling is now statute ogeHse IN
this State. Our statute embraces every act that was
adiudged criminal in gambling at common law, anu
comrehe nds many other. Violations OF are not de-
cared in the act to be misdemeauors III terms and by
Il. =, page 696, sec 49, only those acts forbidden
bv statute are misdemcanors, which are prohibited IN
tie statutes prescribing no penalties. Our gambling
net does not prescribe penalties, and violations of its
provisions are not therefore misdemesnOrs within the
meaning of the seth seC cited. The 10th sec. hxes
the maximum Of punishment IN al cases OF INSIDE
ueanors not named in the statutes creating the OF
fpe The fair deduction therefore is that any statute
ofeuse Which by the terms of the act creating it, In
wolves a punishment in the State Prison is felony,
although the act may have been misdemeanor at
common law, unless the creating act declares II 10 D.
sti Il mis demeanor.
Upon the defendants first point, therefore until the
Superior Court shsn definitely settle the question,
feel bound 70 hold that Ofenses against the Gambling
act are bv implication if not expressly raised from
lnisdemeanors to felonies and that this Court has
original jurisdiction Of them.
The second ground which the defendant moves to
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