New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1913-06-25
BOOKMAKING CHARGES
AT TRACK DISMISSED
Judge. Niemann Rules That
Ordinary Betting Is Not
Against the Law.
LONG DECISION ON CASE
Bookmaking Distinct from the
Mere Making or Record
ing of Bets, Says the
Latest Ruling.

|
Judge James p. Nlemann Of Nassau
County. sitting as committing magis-
trate at MIneola, yesterday dismissed the
proceedings brought by District Attorney
Wysong, Of Nassau County to follow up
the charges made in The New York
American" and Evening Journal based
on assertions of Burns detectives that
gambling and bookmaking were going on
at Belmont Park
Judge Niemann held that II was not
shown that the men with whom bets were
made were bookmakers within the legal
definition Of the law That there was
gambling going on he could see, but that
IT was such gambling as the law prohibits
was not clear.
| The assertions OF the Burns operatives
that they bet with bookmakers was not
sufficient. It would have to be shown
that the men with whom the bets were
made were members Of that class Of COM
mon gamblers which the laws and the de-
cisions OF the higher courts had desig-
mated as bookmakers.
The two paragraphs that stood out most
| forcbly in Judge Niemann's decision
were, first, that Ordinary betting. even
If repeated from day 10 day, is not book
making" and, secondly, that "bookmak-
| ing is distinct from the mere making or
recording Of bets"
In order that there might be no doubt
as to what bookmaking consists of TO
make one guilty of that crime under the
statute. Judge Nlemann said:
"Bookmaking, as IL now exists, is not
materially different from bookmaking as
II existed prior TO the Hart-Agnew law.
but we may now distinguish two kinds
OF bookmaking-written bookmaking and
oral bookmaking. The former was pro-
hibited under the Hart-Agnew law, while
the latter was not. The latter, however,
by the amendment of 1910, is now also
prohibited"
In drawing the distinction between the
person who transacts business as a pro-
fessional gamester based upon a scheme
and plan known as bookmakng, and the
men who makes bet or a series OF bets
in the ordinary way Judge Niemann said:
The words with or without writing in
serted In the penal law by Chapter 4SS Of
the Laws of 1910 did not in any way
change the fundamental requirement OF
the statute that TO constitute the offence
there must be bookmaking as It had al
ways been understood.
1T may now be oral bookmaking. II
that term may be employed-that Is.
bookmaking without writing-but the
evidence must show that the accused
must belong 10 the class of common
gamblers-professiona gamesters-whose
operations are conducted upon the scheme
known as bookmakng."
Judge Niemann did not touch upon the
testimony Of Arthur Brisbane. who un-
der the subpoena Of the District Attor-
ney's office. appeared AT the hearing last
week and testified that all that he knew
about gambling at the tracks was from
information given him by the Burns de-
tectives.
Ordinary betting, even II carried on
and repeated from day TO day. is not
bookmaking" Judge Niemann ruled.
The statutes and the decisions have
made II clear. he brought out that there
Is a distinction between the person who
transacts business as professional
gamester. based upon a scheme and plan
known as bookmaking. and the man who
makes bet or even a series OF bets, in
the ordinary way.
Judge Nemann then cited the decision
in the case OF the People ex rel. Sturgis
agt. Fallon TO show that bookmaking is
distinctive from the mere making or re-
cording of a bet and added:
THE operatives who testified in this
case that they had made bets said that
they had placed those bets with book
makers and had referred TO the defend
ants as bookmakers. The mere state
ments OF these operatives. the designat-
ing of the defendants as bookmakers by
the operatives, did not make them such;
the statement and reference had no legal
force 1t is mere conclusion, and opin-
ion OF the witness.
What those defendants did constituted.
no doubt. form of gambling, but IT must
be borne in mind that not every form OF
gambling is prohibited in this state"
The court then passed upon the right
Of men 10 make wagers as given by the
constitution and upon Illegal kinds OF
gambling. and said that in this case, while
there undoubtedly was gambling. II had
not been shown that it was that par
ticular form OF gambling which the law
sought to prohibit.
The evidence, the court held. fell short
of sustaining case against the de-
PENDANTS.
When seen after the decision had been
made public District Attorney Wysong
said It required considerable study. He
added
81 am pleased. indeed. over the action
OF Judge Niemann in dismissing this
charge have felt all along that there
is no gambling or bookmaking being done
at the racetracks and have every conf
dence in our detectives there 10 detect
any crime that goes on"
The action was brought by District At
torney Charles n. Wysong after the pub
l!cation in the Hearst papers of reports
made by Burns operatives who had been
sent TO the track 10 investigate the bet
ting conditions.