Opinion
May 7, 1909.
Robert H. Elder, Assistant District Attorney [ John F. Clarke, District Attorney, with him on the brief], for the appellant.
Joseph S. Auerbach [ Charles H. Tuttle with him on the brief], for the respondent.
Any person who engages in "book-making" is guilty of a misdemeanor (Penal Code, § 351). The information and the warrant against the relator accuse him of the crime of "engaging in book-making". The information has to state facts which constitute book-making (Code Crim. Pro. § 742; People v. Corbalis, 178 N.Y. 516; People v. Pillion, 78 Hun, 74; People v. Miller, 81 App. Div. 255). It does not do so. It states that the relator did on a race track "quote and lay odds" to many persons, specifying the said odds, "that is to say, did state and publish to said persons the terms on which" he was willing to bet with the said persons against the horses on the result of races then there to be run by such horses, and did bet $500 to $200 with a person named that a certain horse would lose. There is no allegation of the writing or recording of anything. The learned counsel for the People admits there was no writing or recording, and argues that book-making means only the making up by one of a plan or system, called a "book", of odds to be followed by him in betting with all comers, and which, though it may be written or recorded, does not need to be, but may be made up and carried in his head, and communicated or published by him orally. This is not so. There can be no book-making without writing or recording. The word in betting, and as used in the Penal Code, implies the use of a book, or sheets of paper, or a bulletin board, or some such thing. This is the genesis of the word. It is not necessary to enter upon a precise definition, no facts of writing or recording being alleged.
The order should be affirmed.
WOODWARD, JENKS, BURR and MILLER, JJ., concurred.
Order affirmed, without costs.