New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-03-12
COURT OF GENERAL SESSIONS Macs io-s.lsr.
eordsE BsNARD.


COURT OF GENERAL SESSIONS Macs io-Bss~. Re-
The People AT, jacob Berssa
The indictment in this case was found under t.
Law passed in 1851 and amended in 1885, entitled A
Act more efectually TO suppress Gambling"
The motion TO qussh the indictment was made b.
fore the last day Of the February Term Of tho
Court. l had intended within few days thereaNg
to have announced the decision, but have been De.
layed up TO the present time in consequence Of thS
numerous pressing duties incidental to the Office Of
Judge Of this Court.
The motion was founded on the following grouals;
l. That the act of 1851 amended, is inopcrstive
because that portion OF the punishment prescribed b.
IT, which insists of in the PsaitentArY,
csnnot be carried out all the counties OF this STATE
nssmuch as there ore not Penlehtiaies in each q
the counties.
ii. That the offense charged being misdsmesso~,
belongs to the jurisdiction OF the Special Sessions un-
less the Court of General Sessions acquires Il -
poL ted cut 10y the act of 1851 as amended.
ILL., That the statute Ia null, because It does not de-
foe what lottery policyis.
~. That the indictment is bad, in that alleges
single act of ceiling.
V. That the indictment is bad for not showing wAss
Xii of lottery meant by the policy in question
VI Either the ticket should pslny show it, lace
its meaning. or it should be explained by explanatory
averments in the inc ictment.
As to the first ground, act may be imperative
though rot void. II the Legislature had directed the
punishment to be by imprisonment in some place 81
confinement which had no existence in the state tAs
act might be imperative until such place OF coahss-
-
tee Revised Statutes, page $751; 18th ed but 4 woud
not be void. II would be imperative simply bsesuse
70 pun shmen could be inflicted; and the moment the
csuse of the act being imperative was removed, VT
tslity would be infused into it, Under such circum
stances these, il would seem that the law may %
ope raive in counties and imperative In othcs.
| Tie case in hand, however. differs from the one
above put for the acts in question prescribe punnn-
en- in the discretion Of the Court which shal be by
confinement in either the Penitentary or state Prison.
and IA fine not exceeding 81 600 There is there
L -. Ia snAt lot hr.Atf1
| the State namely imprisonment in the State Prisoe
end fine such being the case, think the law seithsr
void nor imperative. 49,
IL has been sugge sted that the prisoner s EMIT Id
TO have the benefit Of all the various grades ofpus'sh
merit which tie act mentions; that II bis 0tfcnse ~
Of such character to require less than imprisoe-
trent in the State Prison, be might be sent TO the
PeRitentsry. The degree Of the punishment 10 %
inflicted rests however, entirely in the discretion OF
of the Court; ard case may never occur In wnicA
the Court will deem the proper punishment TO Dc I'm
prisonnenti in the Penitentsry aud, at the time vince
such does arise, there may be Penitentiary %
Penitenares provided, to which offenders may be scet
from every county, there is one now provided TOO
| the City aud County OF New'fork IL, indeed, suoh
csse should occur before such general provision
| made, then il would become question whether the
prisoner could ntt ms matter of right demand suS-
pension Of judgment in all counties. or at least IN tnoso
| counties with respect TO which no PeDitensry had n
| any manner been provided. The suggestion could a.
all events be very properly urged and would doubt
less have a controlling effect in inducing the Court n
/
which the ot nder could not be sent toa Penltentary
and in those counties from which he could be sent 10
Pententiary, either to suspend judgment or greatly 70
| reduce the term cf imprisonment.
The conclusion have arrived at IT, that the ,,at
| is Lot well taken.
AZ to the coid ground the question is whether tho
| offpnsc charged is a felony mlsdemesnor
II felony il il conceded that this Court hes Orig
| al jurisdiction. felony is crime which may DO
| punished either by death imprisonment in q State
Prison. lBabours Criminal Law, page lsi The Poo
pie agt. Hall, decided by Judge Capron while City
| Judge; Rev. Stat, sec 3d. page 1921 II follows
that where statute creating offense provides a.
punishment therefor mprisoDme IN State Prison,
ultho ugh tie discretion Of the magistrate lesser
punishment may be inflicted, then that offepss be-
cones felony, unless ito grade Of crime Is specifically
declared in the statute Thus, if in statute crime
declared to be msdeme amor that would be rs ado,
although the punishment should be Imprisonment In .
| State Prison. but this declaration must be clear and
explicit in the statute and not drawn by way OF ar
gumeLt from general expressions used. Nov, the
,tatute in question does prescribe a. punsa%sne
care specific and express terms the grade OF crime
| to which tho Offense should belong.
In NV iudgu ent therefore the offense is fecoy,
III less the words " shal DO taken and held 10 be
con rno gambler are sufficient TO mark It as misds-
meabOr Upon this point IL has been urged by tho
council for the defendant in another Case. that the
Metropolitan Police act of 1857 sec. 9, pege 2of hss
declared common gambling to be nsdemeanor, and.
by Argument traLsfring that declaration TO tho acc
Of 1851 amended prco lsms that tho lastmsntioneA
act eht aid be read II the word mlsdemean0r We
substituted in the place OF the words taken sn4
" held as a common gambler" This think, cannot
be dore, for the above mentioned And again.
do urCerstaud the provisions Of the Metropoitaa
Police act to 20 to tie extent claimed Those pro-
visions are directed against Z" q common gaming
house cock pit" and direct that il thefs should be
probable cause fer believing that any Of the persons
who might be found 10 any house kept for such psr'
loses so in such house for the purposes OF gsa-
pg then the magistrate should order such persons,
Wien brought before him, TO find bail 10 appear a.
proper cinrs Court, having jurisdiction TO try mis-
den.eanols to sIsger any indictment that may be
f. nd charging them with being common gamblers.
hat # the jury should be satisfied that the premises
IN which such person arrested were kept for the
purposes If gaming, and that such persons wsse
present for the puIposes Of gaming, thea suos
petsOLs might be convicted as common gam
bleIs, and, if convicted as such common gs0-
blers then the Court should forthwith sentence
them as for usdemt anors. These provisions ap-
ply OILY to persons found IN common gaming
hCuse or cockpit. The statute declares expressly
hat the offrr,e therein contained shall be misds.
me,nOr, slt.ough they had previously said tia. the
persOn should be cor ylcted As common gambler.
The sepse a the Legislature was necessary TO 6K
the grade in the scale Of crime to which that ofense
sboud belong. II does not say, nor is the purport Of
IT, that al common gan bers shall be convicted u
msceu esnOrs only nor that the crime Of c0mmoa
gambling shall be in all cases simple msdemeanor,
but merely that that specific ofsnse shall be Of thst
grade Of crime.
regard the words common gambler" a. used II
10th tfese acts, as being simply genera! bonensA-
tQfe under which ~ elass and gnae persons guuy
"t various specific ofepses, and not a. sayieg soy
bearing upon the urshment 70 when .aG In ~
rsy be subected or degree Of crime 70 which me o.
fences belong. shall therefore, hod tnAt no ose1es
charged in the indictment il Q felony out even
were misde both OF the JIoses O. tns Cous
ave held that this Court has orlgns
m;s6emeapofs and this doctrine must continue 70 %
| a. ~ % 81. C,urt until reviewed by some higher