New-York tribune., 1908-08-13
RACETRACK MEN WIN
PRIVATE BET NO CRIME.
Court of Special Sessions Discharges
Mahoneu IN Test Case.

Racetrack partisans jubilant yesterday over
the decision justices of the Court of Special
Sessions that the taking of an individual wager ou
not constitute crime in the eyes OF the law. Inc
decision in which all the justices concurfed was
handed down in the of Charles Mahoney. man
ager of the Hoffman House cafe who was arrested
July 10, the complaint of two detectives WHO
charged him with receiving $50 from Nelson Her
zog as a bet a horse named Enfield, winch was
TO run at the Brighton Beach racetrack
Mahoney, who released from custody after
yesterdays decision. was at the time of his arrest
taken before Magistrate Wahle. in the JEFFERSON
Market court, and discharged. He was rearrested
however and District Attorney Jerome personally
conducted the case in Special Sessions, telling the
Justices that he desired to make test case of IT.
Mr. Jerome was not present in court yesterday
when the decision handed down. but he was
disappointed by the discharge of the prisoner I
would liked to have thorough test case
made of it,. was the District Attorneys only COM
ment "Of course, there is appeal now
Among bookmakers and poolroom men 1t was felt
that the decision was a great victory. Especially
this true of the handbook makers. who thought
that, in view of Mahoney's discharge. 1t would be
hard for case to be successfully prosecuted
against a handbook operator. All the, handbook
will need to do now, it was said will be to in
sist that he is simply taking an individual wager
from a friend.
multiplying the efforts of the police TO stop hand
book betting in cafes and saloons 1t will not, of
course make out-and-out booknaking at the race
tracks lawful, but it was looked upon as an enter
ing wedge.
John B. stanchield who appeared for Mahoney,
declined to comment on the decision from the point
of view of the racetrack owners. The courtroom
was crowded with racetrack men and poolroom
and gambling interests
The decision. written by Justice Hoyt. quoted the
recent ruling Justice Gaynor, that an individual
bet was not a crime The leading points of the de-
cision follow:
The statute which the defendant is charged with
violating is not one of recent enactment secuon .,
81 Of Rsn n6 @ sd has Rssn o M
bearing whatsoever upon violation of this par6e S
ular character that the event has been @ mace s
a misdemesnor. instead of a felony: Ihis case
therefore, presents no unusual features. ,,
The obvious intention of Section 351 of the renal
Code is TO prohibit the business of oookmaking or
Poolselling to make any bnp IN suHn @
connected with the carrying on of the ganohns 10 It
business has been decided not TO cQhstu @ ss Of IA he
people ex rel Sterling agt the SherH 9I bst is
not crime whether made in your parlor or on the
golf links or at racetrac nor Is H fne Zen 5d vor "t
self out to bet and bet with all corners you are
guilty of a crime. ,,o
question of whether the defendant was guilty OF
anything further than the parcipation and makhs IA ing
case we are forced reach the conclusion that ne
not h There is nStg m S in sne bDess Of
bookmaking or po9lselhng. or thaI ne neIo MN. WI
cannot presume that his act of receiving money
from Herzog indicative of q business transac-
ton rather than that of friendly wager or settle
ment nor can we decide that his remarks that he
receiving the bet for friend" established the
fact in itself that he engaged in the business
of placing bets
something more must be shown than the mere re-
ceipt of of money and the admission that
it referred to bet of some kind There must be
some evidence which would justify the court in
presumng that this defendant was engaged In tn, the
business of recording bets and wagers. Partfcipa-
ton in such a business may be shown in a num-
Der of ways: but in the present proof of that
character is entirely lacking.
The question of whether or not the DEFENDANT act
ed as a stakeholder in taking money from Herzog
is beside the point. The learned counsel for the
defence has not claimed that the defendant cannot
be convicted because he not to profit or lose
by the bet but acting either as stakeholder
or as a forwarder of the same, and this court
would surely hesitate before indorsing any such
contention. =,
liability of q stakeholder is the same as that of
any participant in a crime but in such case 1t
must first be shown that the violation has been
committed and that the person accused Of such
violation actually aided assisted abetted in the
carrying Of the business of poolseling or book
m