The sun., 1908-05-10
LAWYERS VIEW OF GAMBLING
>ylTUTES INCONSISTENT, SAYS
JOHN n. nos PASSES.
suggests a Popular Vote on the Abolition
Of Racetrack Gambling Laws Against
Poolrooms Too severe to Be Enforced
should he Made \ MlsdcmeanOr.

views on the general question OF gambling
under the laws OF this State and suggested
ra, the best test would be a popular vote
90 the abolition Of racetrack gambling
Discussing the moral question involved,
Nr Dos Passos said
50 far as my observations are concerned
fca public officials In the State Of New York
have treated the subject. Of gambling with
ugrkuCas end broadness-l wac going to
eay intelligence. The mere politician, re-
rardCss Of the inherent nature Of the ques-
,,or. shapes his views to meet temporary
sentiment The clergyman attnes his
sermons IN the impracticable key Of abso-
u'c .0uihiation Of this vice. The result
10 mistakes by Legislators and officials who
have 60 deal with II and utter inisappre-
ho,sOon by the general public. To the legis-
M'0r truly anxious for the welfare Of the
Ieurlc nothing offers more difficulty than
rao treatment OF the subject Of gambling,
f. rs q vice inherent in the human system,
I,.s not what is called crime mdium in Sc,
wrong in itself, but II is sometimes declared
10 Ic an offence because the predominating
moral sense Of the community condemns
t a- detrimental to its welfare, just as
swearing eNpectorating in public places
violation of the building laws and the like
.crs are forbidden. Crimes mdld in &c
mrv inherent moral turpitude; those
r1a prohibt1, such as gambling, imply
Misconduct No writer OF merit and dis
.ne'lon 80 far as my reading extends has
ever claimed that in the abstract it was
IMMORAL to bet. Lecky. whose rank as a
,,hoar and moral philosopher is lndspu-
rlYIe. says Gambling 's not in itself a
crime Few moralists will pretend that
a man is committing an immoral act II he
stakes few pence or shillings on a game
ufoAance Jeremy Bentham, whom may
call the great legal diagnostician, advocates
letting on certain lines And wsgers in
general .hy the common law. we're lawful con-
tracts To-day, in the State Of New York,
/, ia not a crime for individuals TO gamble.
In fac, gambling for small sums seems 10 be
expressly sanctioned because II one wins
or loses l,ss than S25 within twenty-four
hours a recovery cannot be had under
Section 81 Of the Penal Code in a civil
loses or wins over t25 within such period
b. is liable to this penalty but he commits
.nCrime.
Homes, gambling is, by the statutes
uf New York, enforced, and cheating frowned
upOn for under the 33sth section OF the
Penal Code one who by fraud or false pre-
tence, while playing at any game or while
having a share in any wager played Tor,
or while betting on the sides or hands OF
sIch a play, wins or acquires to himself
or to any other a sum Of money or other
valuable thing, is guilty Of mis- iemeanor
Again, no law prevents a citizen from
gambling In his own house. No officer can
freak into his castle and interfere with such
an act, and no Legislature would dare TO
make law by which the privacy and sacred
MSS Of home life-dome sticity- be
invaded Such a liCentous actor II
would be nothing else-would put an end
to the fundamental principles Of social
organization, protecting personal security
But a citizen cannot commit murder or
robbery in his house; and this illustrates
the distinction between crimes mdld IN
81, wrong in themselves, and acts mdtd
iryhibud, wrong because prohibited. That
It is foolish for individuals TO gamble who
cannot afford TO lcse their money goes
without argument and that public gambling
s1ouli he controlled by proper legislation
is universally acknowledged. Il is venial
act. however, and should be discriminate
ngy treated and mildly punished. Gam
ing is a principle in human nature. II be-
longs TO US all, says the immortal Burke
Discussing the present state OF the laws
nthis State in 80 far as they affect gambling
Mr. Dos Passos continued:
The laws upon the subject OF gambling
in the State Of New York are superbly in
consistent and as well from that cause
as from the indulgence and habits OF the
PEOPLE are practically unenforceahle' The
Constitution Of New York provides; Nor
shall any lottery or the sale Of lottery tick
cts pool selling, bookmAking or any other
kind Of gambling hereafter be authorized
or allowed within this State; and the Leg
stature shall pass appropriate laws TO
prevent offences against any OF the pro-
visions Il this section This is very broad
language: and il the Legislature, in its
discretion, were to say an appropriate law
% prevent these offences would be the
infection Of a fine or penalty OF IS for each
ofeLce who could complain?
ASK any member OF the constltuuOna
oolyention at which thisarticle was framed
for The history Of its passage, and he will !
te. you that il vas put forward as mere
piece Of partisan bluf; each political side
represented in the convention seeking TO
Guido It's rival by a show Oi excessive vir- !
tue and the gambling clause was cast forth
without any particular advocacy by any
BODY and with no hope that II would even
lalIy be adopted by the people. Indeed
the pro, sion should have fonud 70 piece
in the Constitution at all, 10? tie reason that
ac1Us'ltution OF government is not BODY
u laws To confuse them 10 20 impair the
authority Of both. If that iri ciDie needed |
Illustration the selection ~ such a sub
ject as gambling in any o! is forms would |
conspicuously afford IT, 10 the student !
u Institutions ii reads like traN esty As /,
II ia the whole subject seems TO be left |
10 the discretion Of the ] eRis.ature, and |
this was the view adopted by the Court |
oi Appeals
i argued the Stedeker and The. Allen !
Eases in the Court Of Appeals. These cases !
had 20 DO with the construction of the s5lst !
s'c.ion Of the Penal Code, under which !
thcv wore proceeded against. That law /
sa srccies Of net which drags in all OF the |
c.sos covered by antecedeTt sections. !
G-d undertakes TO make the crimes of pool !
sling and bo1kmaking felonieS. The |
Distinction between misdemeanors and !
'ei0nies IN New York Is that the former /
Hpu.sHcd by imprisonment in reni."n-
tary fpr one year or less, or fne. hter |
ue mrrIsonment is over the law is s9lls-
ied felony is totally diherent, Inc !
convict IL consigned to State prison, His
character is t6tt)oed for life with the bra"d !
d crime. He can ne"er vote, one OF the !
NOS important attributes OF citizens No.
nor rup he ever hCld any Jfhce oi trus' |
or rr .f'
When tho nature Of the offence OF gam
bling is Considered. when II is scomrare1 with
other crimes more heinous, the punishment
and DEGRADATION attending its commission
BOT - all proportion--it throws the nee,