The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-02-13
Gambling not a Crlme-singular Decision OF
Recorder Smith On the Gambling Indict-

Gambling not Crime-singular Decision Of
Recorder Smith o. the Gambling Indict-
ments.
NEW YORK GENERAL SESSIONS.
Before Recorder Smith
Ne People n. Patrick Heywe and o1eys The Same %.
Alexander Edgar and others In these cAses the Recorder
pronounced hts decision % follows -
The indotm eIt In each was drawn under the aos
OF 1851. II contains nine counts, all of which ctavge
feYaraely some violation Of the so the defend
ant ID common gambler" All the counts In form
charge the oct - fslonious.
The defendants their arrsisnmsnt plead guilty. and
then moved an irrest Of Judgment
The first question which u raised 10 Can . oion In
arrest be sustained alter pes Of guilty has been inter
posed Upon this point have doubt All thu, the
plea admits u, that the evidence will sustain the facts
charged In the indictment The effect Of the plea OF
greater force than . verdict of guilty Il not pre-
vent the defendant Of svAilpg himself OF ell his legal
rgha-one Of which the right 70 10 arrest at any
time before judgment.
The fact il conceded by the prosecution, that the in
dctnen In this found oy the Grand Jury with
out any previous proceeding havpg taken be
magistrate and that the defendants had no opportunity
examination II the offence charged In the indc,.
nent is felony the finding or the inoic mept reeu
E mi.demeanor only, the Indictment Is Improperly
the COURT of Special Sessions IN oil OF
Since the passage VI that at any indictment mis-
nesnor found by the Crane jury unless the compliant
has been first prevented to m,gisvate would De ire
GUAR and the defendant may avail nj nselt Of he rregu
larty on motion to qnssh, or In ares, Of jndg neot
The only rema'airE question Therefore ISIS tbs OF
fence charged q felony
Gambling not felony at common Law, bu, diff srent
statutory epactmens have mpofe penalties Tor gam
biDg By statutes previous 1881 the "ence Vas
declared to be mis- emeanor, punishable by nns and
imprisor nent The ac' Of 1851 ncrcssts The ounhh'
mept, but does not 10 osclsre sne offence OF
bling felony; but distinctly defines ~nst ih' offender
In Law sbs be copsio ed thar be sba 'tSken and
htld ~ . common gambler F" common law gam bling
10 no offence end tber is no statute that enacs that's
''comnao gambler" shAl be considered q feloD
lie commended by the that tbs punish nent
prescribed by the statute indicates the grade OF crime
and that by ,tatute al off nees puushsbie ~ imprson
mebt n the State pri.0n felopc But do not
underatand the statute Seou iop oy statute INSIDE
meapor but the puLshEeD. for tpe of In imprson
nepi in the State prison. The crime OF Obtaining pro
In the Safe prison, o. lin the discreu N Of the
Cour,) by fire or impr soDm eut IN the comfy jx'l
the crime Is felony. rbe statute of 1855 does NO,
deone the crime OF beng common gambler"
ieoay; but previous statutes defae eamo log msde
meanor The set lSb, increases the pun,snmaps but
does not change the srade of offence conviction for
felony deprives the party OF the rights o. citizenship
conviction for msdepeapor DOT not deprive him 81 these
rights TIE charge Of felony In the inoi;mept Is shere
fore material arega'iop, snc canuot be r Jected.
ha well settleo priv cpe or criminal jursp udence
thN all penal statutes must be sricty oonssrued tha
ambiguous, the ocpstGction placed upon them must be
In favor OF the party chasgeo There ID DO connc OF su
tboriues upen this queston Of construction
have therefore come to the followse concluson.:.
That ur der the act OF 1851, Che act under which the
nt ictment 10 drawn The offence misdemeanor, ana
not felony
bad exclusive jursdicion OF the offence changed IL the
indie ment and that the Court Of General %essions ha
obtained no juiisdic'ion OF the case
therefore direct that an order be entered srrs'us the