People v. Erickson

28 N.E.2d 381, 283 N.Y. 210, 1940 N.Y. LEXIS 934

• Court: New York Court of Appeals
• Decided: May 28, 1940
• Status: Published

Opinions

Lehman, Ch. J.

Upon the complaint of an examiner in the Department of Investigation in the city of New York, the defendant has been found to be a “ disorderly person, under the terms of subdivision 5, of section 899, of the Code of Criminal Procedure of the State of New York, in that he has no visible profession or calling, by which to maintain himself, but does so, for the most part, by gaming.”

Pursuant to a public policy embodied in the Constitution of the State and founded firmly, I think, both on old traditions and sound public opinion, the Legislature long ago enacted statutes to punish gambling and to curb professional gamblers or gamesters. The courts may punish or curb only in accordance with those statutes. In the Penal Law, article 88, the Legislature has declared many forms of gambling to be misdemeanors and has provided penalties for those guilty of such offenses. Thus, in section 970, the Legislature has said that a person who conducts himself in manner there specified or who does any of the acts there enumerated “ is a common gambler, and guilty of a misdemeanor.” So, “ keeping gaming and betting establishments ” (§ 973); “ keeping of place for game of policy ” (§ 974); “ persuading person to visit gambling places ” (§ 980); “ keeping slot machines ” (§ 982); together with other acts and other forms of habitual misconduct specified in the Penal Law, are declared to be misdemeanors and violations of the statute which may be punished by imprisonment. The conduct or acts specified in the Penal Law may, of course, be punished only when the offense was committed within the State and the prosecution must be conducted with the safeguards and subject to restrictions which surround the trial of other penal offenses. The defendant, however, has not been tried or convicted upon a charge of violation of any section of the Penal Law. The charge against him is that he is a " disorderly person ” as defined by section 899, subdivision 5, of the Code of Criminal Procedure. Though conviction upon such a charge does not empower a magistrate to pronounce a sentence of imprisonment if the person charged gives security that “ he will be of good behavior for the space of one year ” (§§ 901, 902), and though the person charged may be convicted after a summary investigation by a magistrate, yet, it is plain, that there can be no conviction without proof of every essential element of the' charge.

From ancient times law making bodies have recognized that the presence in the community of disorderly persons may constitute a threat to public order or decency. The definition or specification of "who are disorderly persons,” contained in section 899 of the Code of Criminal Procedure, includes nine separate classes. Some persons are included who have committed no offense but who practice callings at which goodly citizens in ages past, and perhaps today, look askance. Thus, under subdivision 6 of the statute: "jugglers, common showmen and mountebanks, who exhibit or perform for profit puppet shows, wire or rope dancers, or other idle shows, acts or feats ” are, without more, declared to be disorderly persons. There we have vestigial remains of old vagrancy statutes, directed against idle and irresponsible persons rather than against vicious persons. Some persons are included who habitually commit offenses which might subject them to punishment under the Penal Law. Thus, under subdivision 4, “ keepers of bawdy houses or houses for the resort of prostitutes ” are also declared to be disorderly persons. It was in regard to the provisions of that subdivision that this court said that the main purpose of the statute is “to arrest the disorderly practices named, by compelling a disorderly person to give security for his good behavior.” (People ex rel. Van Houton v. Sadler, 97 N. Y. 146, 147.) What was there said applies where the statutes declare that those guilty of the “ disorderly practices named ” are, without more, “ disorderly persons.” Under subdivision 5, however, only those persons are “ disorderly ” who not only “ have no visible profession or calling, by which to maintain themselves, but who do so, for the most part, by gaming.” A charge under that subdivision is not established by proof' that the defendant is engaged in gaming as a business. An essential element of the charge is that the defendant maintains himself by gaming. Very different questions would be here if the charge against the defendant had been that he is a disorderly person under the terms of subdivision 4. The charge against the defendant is made only under subdivision 5 and the only question raised, argued or considered upon the appeal is whether a charge under subdivision 5 has been established by competent evidence.

The People must, of course, prove every essential element of the complaint. We may assume that the People have sufficiently proven by the defendant’s admissions that gambling in this State or other States has been, over a long period of years, his main occupation but habitual gambling is not the gist of the charge. He has not admitted that he is profiting by that occupation and even if we might, without much hazard, venture an opinion that he derived pecuniary profit from his occupation we could, nevertheless, by no logical process, infer that he maintains himself for the most part by such putative profits when it appears conclusively that he is enjoying an income of at least $12,000 from his investments. In the absence of proof of such fact, even though we may have little if any doubt that the defendant has been guilty of habitual con duct which, in the public interest, should be curbed, we are constrained to find that an essential element in the charge has not been established.

The Legislature alone has power to define penal offenses or misconduct which may be curbed or punished by magistrates and courts of criminal jurisdiction. Not even to arrest habitual misconduct which offends public policy or to curb or punish the lawless, may a court disregard or distort the law as formulated by the Legislature.

The judgments should be reversed and a new trial ordered.