The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-03-12

DECISION OF rHx RECORDER OVERRIDING THE MOTION
TO QUASI INDICTMENTS AGAINST ALLEGED POLICY
yErpEhs.
In the General Sessions yesterday morning Recorder
delivered the following able and elaborate opinion
m,on Of counsel for Jacob Bosser overrung the mo-
lion 70 quash the indictments and ordering the defendant
10 his trial This decision will effect large mum or
OF similar indictments.
TIE Indictment in this case found under the law
passed In 1851 and amended In 1855, entitled "An act
more efectuay 10 suppress gambling" The motion 70
quzsh ndictm. made before the last day
February Of tins had inteaisi sitnia
few Gays thereafter TO have announced the decol tut
have been delay up TO the time in
the numerous pressing duties Incidental 70 the o;e OF
Jucge OF THIS court.
The motion was founded On the following gro ipds-
l. TIA, OF 1851, amended is noper alive be
that portion OF the punishment prescribed oy IL
which consists of mprisonmen in the penenary cannot
be carried out all the counties Of this State nasm1cn
there not pepitenuaries 10 each or the countie>
Q Thai the offence charged. being misdemesnor, be
longs jurisdiction Special Sessions uaess
Court Of Gene' Sessions acquires as pointed out by the
That ina statute is null, because ii does define
A. That he Indictment is bad in that ii alleges single
act " selling
8. rcat the indictment is bai for not showing what
Kind of lottery meant by the policy in question.
9. Either the ticket should plainly SNOW its face its
meaning, or 1t should be explained by explanatory
first ground an act may imperative though
noe VOID. the Legislature hac directed the punishment
which had existence 10 the state the &C; might be in
operative until such place Of should be pro
vided (uness saved by Do Of the Revised
Ssatns page SIS 4th -oitop) but would not De void
u would be imperative simply because no punishment
could re inflicted and the moment tpe cause OF tie act
being imperative vitality would be Infused
into n. Unoer such circumstances as these, It wouic
that the Ia may be operative IN some counties and
BopeIsive others. TIE case 10 hand however, differs
for the acts question prescribe
punn hment in the discretion OF the Coa-, which shall
be by lnem.nt in either the pentenary the Sti,e
There therefore punishment which be Unlisted
throughout state; VIZ, Improvement tne state
prison ard fine Sucn beng the case, think the law
neher void imperative has been suggested tina.
toe prisoner is entitled to have the benefit bf all The
various grades of punishment which the act mentions
that biz offence OF such chsra ter 10 require less
than mpr scnmen ~ the Sass prison be might be sen, 70
pPntsDary. The cegrCe Of the punishment to be
inflicted rests however, entirely In the discretion OF the
Court: may occor which he Court viii
DEEM the proper punishment ~ be Imprisonment IN the
pepnentary, and at The tin. when such does arise
there may b. penteutary penitentarles provided,
10 soch oGeDoers ma! be sent from every county, as
ther. provided the city and county Of New
York. II should before such gene
PROVISION made, Then would become questi
whether the prisoner coul1 not as matter OF right, de
msnd SUSPENSION OF judgment III ali counties or Al least
In counties respect which oententasy
hsd any been provided. The suggestion could
81 all events be properly urged and would doubtless
have controlling effect inducing the Court IN such case
10 suspend Judgment IN thos" counties from which
the offender could Dot be sent 70 peuitenuary, AID
uoe counties from which he could be seat TO peni-
tentsy either 10 suspend Judgment greatly 10 reduce
the term of mprisonment The CONCLUSION that have
arrived at is that the point is wei As u the
second ground, the question whether the offence
charged is felony or mis1emeanor? II felony, il is
conceded ihai this cour has original jurisdiction. A
teony lie crime watch may be punished either By death
Imprisonment a state prison. (Bafbour's Criminal
law page Is The People agsins, Hall, dsc led by Judge
Ca.ron while City Juuge Revised Stat ties, sec 80,
page 702 follows where 8 creating a Of
fence provides a. punishment therefor Imprisonment
In slate prison. although ID he dsertuon OF the nass
a PUNISHMENT msy be iected then that Of
fence DEC lmes FELONY uuess It's grade OF crime spe
cihcslly declared in the statute thus, if in salute
CRIME AIRED be a mls5emeanor tina, would its
grade although the hment should be Imprisonment
M state prison but this declaration must be ana
expciI the statute, ani not drawn OF argument
iron general expressions used. Nov, the statute in
question does prescribe as punishment such i'm
priscnnent 10 state prison. ard does not de
care, specific ana express terms, the grade OF
CRIME which the offence should belong Ia my ju1g
Tpent therefore offence felony unless words
'Sbsil be taken ana belG IN be common gambler Is
sufi sept " mark II a. msdemeapor Upon this point
has been urged by the council FOR the def.
another at the metropolitan Police OF 1867 (sec
hon Q, pag- 2O+), has declared common gambling
mnoemesnor, sno by argument transferring that deola
70 OF 1901 amended claims that the last
mentioned act snoulo be read the w0rd n4soemeanor
substituted II tue place Of the words taken aud held
Il common gambler" Tbs, think, cannot De done,
fer The reascps ab,ve mentioned sna se.u not IN
derstaod 'e provisions OF tue Metropolitan Police act 10
SO 70 the extent claimed tnoss provisions
against "a common gaming oouse COCK pitt" ana d.
that there should be obahie cause for believing
N spy Of 10. persops VITO might be fouud 10 any house
tet for sOch pufpes, 10 such house, for the
purposes az gaming theG the magistrate should order
such T-ro's -b-n brought before him TO hnd bail TO
sip.sr a, proper criminal court having jurisdiction 10
Try mi ieDesBors o any ndict nent that be
fooDd changing tbeu with beng oommon gamblers, ihst
mees 10 which sucb persons arrested
sert for toe purpose OF gaming, and that SUCH
persons present for the purpose Of gaming then
ssch persobs might be convicted common gamblers,
end II convicted ~ such common gamblers, then the
Court should forth~lth sentence t1em for IN SIDE
esnofs These PROVISIONS spply cny 70 perscrs found
a common guu,rg house or cock ut. The statute de-
sares expressly That ,he Sh.pce therein cout.ined sha
the persun should be cJnyicied a common gambler
Tue OF the Legislature was necessary TO ok the
grsne TIE sale CRIME ~ which thai cdspce snodld
belong. Il doe not say, " the parror Of that all
oommnn gamblers shsF be convicted az mlsde
neanort only, that the cr'me Of commJn gam oiing
shall be AL simple misdtmcaatrs, but merely
thai that specific offence shall be that Craze OF
I regard the word common gambler used 10 Doth
tbese arts. being amply general
which 10 class designate persons guly OF various
specific ofeDcs aud not a. having apy besrcg uuon tle
punishment which the offenders may be suDjscisi
degree u CT 70 which the offences belong shall
therefore, hold that the offence charged IL the IN
mroemean'r, bo,n q The Juage. Of this court
have held that snis cour; has original jurisdiction
msdem-sDors and this doctrine must continue
be the aw Of he court, until ewed by higher
tribunal This ground, ther store, for beth OF these ree
rons must be overrued A. 10 the third ground: the lie
sxls,ure undoubtedly the performance Of
na which before ineoceet, provided there NJ
srfeTeBoe ~th am constitute nal provision II hz not
been urged before mo that the pronioon question does
interfere win any conttutona provision ana therefore
assume hAi zoos not Nos tne proniotoo 10 the act -
sssip-t "seng vending sbst are COMMONLY known a.
called lottery policies 20 sustain indictment FOR
The on-to- oct n.cessary 10 that the pager or
thing sold IN isct lottery policy, but 10 prove that 4
n0ny kBo~n called such, and r. solely que>tion
"a in FOR tie jury 10 pss upon The ntsnt Of the Le-
gtstufe 10 avoid Clo~e and mute delaition
give opportunities evade the lac by changes NJ form
Of substance The statute against The stfrng Of
soeTsin tbns this presuppo-es prescott oooLpgent
vslOe The thing sod that The t0iog sold uAfS her
CERTAINLY upJu the bspIeneg 81 soue event< rvs
purchaser W procure something " value. Tue fsct
vf the gale y rendered BY the statute a component
part " toe onencc-bJth tbs v-oder and v,ndee
must surely kBo~ whsl the subject OF ssie "a
What IL usually and commonly des COATED
The act 10 question therefore ~ 10 be denute
and certain enough AZ 10 tue fourtn groupd-I shall
bold single OF selling subjects the To
prosecutor the act a. amended deening tbsi-f
correct the foregoing ruliUgs-to be clearly the
poper construction 10 put 90 the provisions contained
Ii