New-York tribune., 1909-11-10
ORAL BETS LEGAL
DECISION BY COURT
or APPEALS.
Not BookmdhIng IN Violation
of Init Racctrack Gam
bling Lac.

Albany. Nov. 9-Bettinr is crime only
when accompanied by a record. registry or
the use Of some part Of the para phernalia
Of professional gamblers. according To
decision to-day of the Court of Appeals.
holding. i'm effect. that oral betting does
not constitute bookmsking in violation of
the so-csled anti-racetrsck gambling laws
recommended by Governor Hughes. The
Court sffirms the order OF the lower courts
for the discharge from custody of Orlando
Jones and sol I.ichtenstein. who were
Indicted I'm Kings County on charge of
bookmaking.
Jones and Lichtenstein were charged with
orally laying and publishing odds on horse
races AMI accepting a bet on the basis Of
such odds. MFR. Elder. Assistant District
Attorney Of Kings County. contended that
bookmal1ing was the gambling scheme
which consists Of. the laying of odds for
the purpose Of getting bets. and that while
memoranda might ne useful aid TO
the person who conducted the business. yet
il had no essential part in the transaction.
lie held't II was not necessary that
bet should be made nor accordingly rec
orded for bookmaking 10 he engaged in.
John r. StsnchfeId and Joseph a. Auer-
bach. counsel for Jones and Iichtenstein.
contended that the only effect of tho new
laws was to provide a uniform penalty for
the recording and registry Of bets wherever
made. and that the making Of an ordinary
bot between individuals did not constitute
a crime.
The prevailing opinions Of tho Court OF
Appeals are written by Judge 1iaiSht and
Chief Judge Cullen. I'm which Judges VII
lard Bartlett. Hiscock and Chase concur.
Judge Nann wrote a dissenting opinion.
Judge T.. T. Bartlett did not sit. The
Court sustains the position taken by ex-
Justice William J. Gsynor. who held for
the Appellate Division. Second Department.
that oral betting did not constitute crime.
JUDGE HAIGHTs OPINION.
In his opinion Judge Haisht says in part;
The ordinary bookmsker IS person who
follows the races. and is enabled ." pre-
pare list Of horses entered. with the oddS
80 arranged AZ 10 percentages A. 10 give
him 2 profit whichever way tho winning
horse may be. This IS the evil which the
Legislature sought "a prevent by the en-
actment of the iIart-Agnew laws
There has always been observed dis
tinctiOn between betting and gambling or
the maintaining of house or place 10 which
people could resort to gamble. The same
distinction obtained i'm this state. where
oral betting has never been a crime. while
the keeping Of a gambling house has heNn
subjected 10 severe punishment The lay
ing Of odds standing alone does not, there
fore. constitute a crime.
The vice of bOOkmaking chiefly consists
in soliciting and i'm inducing the public 10
take chances i'm the carefully inquired ana
planned schemes Of the bookmaker and
this. i'm order 20 he made profitable 10
him. requires the writing out OF tho list
Of ocds laid on some paper or material.
81 that II could he seen by those who were
solicited to invest.
In holding that the laying Of odds alone
does not constitute a crime Judge IIaight
says:
IL man should offer 20 bet the ladies'
of his party = pair Of gloves to box Of
candy Il would be the laying of odds and
publishing the same To hold him 10 be
bookmaker would. I'm my judgment. be a dc
psrture from the rule which gives to the
terms Of the statute their ordinary and ac-
cepted meaning. AMI would nc q conStruc-
tion which was not within tho contempls
tion of the Legislature.
We conclude that the information filed by
The District Attorney failed to allcGe acts
which constituted the crime Of bookma king,
and that therefore the order appealed from
should he affirmed.
CHIEF JUDGE CUI.LEN'S VIEWS
Chief Judge cullen. in his opinion. says:
Legislation should he practical. and II is
at least doubtful whether a statute making
a crime could I'm tn" present state Of the
morals and the habits of the community
be enforced. While the statute makes all
bets and WaEeTS void and money lost there
on recoverable. IL has made gambling
crime only where II Is accompanied 10y rec
ord registry OF the use Of some part of
the para aphernalia Of professional gamblers,
except in the case of p0olSellinS, where
probably no writing or record Is necessary
10 constitute the crime.
While I'm reality the statute Is directed
against gambling, not against its incidents.
the Law mas laid hold Of certain incidents on
the theory that. those being prohibited. the
evil itself would he suppressed because Of
the impraCticability Of carrying on gam
bling on large scale without some Of the
ha-a
far this plan has proved successful i'm Op-
Grafton is for the Legislature not the court
10 determine. and Ne cannot hold that the
act Of these men constitutes crime unless
il falls within tho terms Of the statute.
Whether the plan adopted to suppress the
evil is efficaciOus one - sOlely for the
Legislature
In dissenting opinion Judge Nanu saws:
The constitution fOrhdS boOkms king
without defining II and tho statute fOrbids
engaging in IL without defining il. In view
OF tho explicit command Of the conStitu-
tion and the history OF legislation on the
subject well the origin Of the word
booknakiHs and its meaning In the country
from which We borrowed II. 7 think the
statute prohibits engaging in boOkmaking
with without the aid Of any writing,
hecaUSe writing Is not II the substance
and need not be resorted 10, and II re-
sorted 10. il mere incident. Engaging IN
tho business Of public gambling 10y quoting
and LAYING insidious odds To multitude of
people was the evil aimed al. not the max
comps ratively innocent.
SIR EDGAR SPEYER'S POST.