I do not share the view of a majority of the court in the decision about to be made. Upon an information filed in the City Magistrates' Court of the City of New York the defendant has been tried and found guilty of the statutory offense of being a disorderly person — one of a class of "Persons who have no visible profession or calling, by which to maintain themselves, but who do so, for the most part, by gaming." (Code Crim. Proc. § 899, subd. 5.)
The statute thus defining the offense is rooted deep in the public policy of this State. Enacted more than a century ago it has long afforded those charged with the administration of criminal law a means by which may be curbed the insidious influence in society of the man who, as a matter of vocational effort, fosters gambling in its varied forms. When we are told, as has been suggested in support of the defendant's position, that recent statutory history in this State indicates that anti-gambling laws have been outmoded, it need only be said in answer that both Constitution and statutes — the two sources to which we look first for declarations of public policy — still stand definitely opposed to the gamester in our social order. (Const. art. 1, § 9; Code Crim. Proc. § 899, subd. 5.) Indeed it is an effort to avoid the enforcement of the statute last cited, in circumstances disclosed by the present record, which brings that statute before us for consideration.
In reviewing the record at hand it should be said that the members of the court differ only upon the question whether, with proper regard for applicable rules of law, it may be said that there is evidence sufficient to sustain the defendant's conviction under the statute invoked against him. Within the terms of the statute our inquiry goes to the question — does the record contain evidence upon which the trier of the facts was legally justified in finding that the defendant has "no visible profession or calling, by which to maintain [himself] but [does] so, for the most part, by gaming?" *Page 220
Among the first questions addressed to the defendant and answered under oath were the following: "Q. What is yourbusiness or occupation, Mr. Erickson? A. I am a commission broker. Q. In any particular line? A. Specialize in horse racing bets. Q. How long have you been in that business or occupation? A. I have been in that business twenty years."
When the defendant was asked to "describe in your own words, * * * just what your business consists of; what the activities of that business include?" he stated: "Well, I take bets on race horses * * * fights, football * * * World series in baseball." Later he was asked: "Q. Do you know what a bookie is? A. I suppose a bookie is the same as I am. That's what I am, a bookmaker. * * * Q. You take your time and give us your description. * * * A. I am a bookie. Now, a man that would book other bets and give bets to me where I would get a percentage, I would call him an agent. * * * That's what I would call him. You see, I am a bookmaker, you understand, and if another man took bets and gave them to me, I would call him an agent. Q. Do you pay anybody commission in New York City? A. I pay somepeople commission, but I wouldn't know whether they are in New York or not." After giving the names of four men he was asked: "Q. Are those your biggest agents? A. Yes." When asked whether "other bookies would call up," he stated, "Yes, bookies from, you know, other bookmakers all over the country call up." Although it appears that he accepts bets on various types of "sporting events" the defendant stated that ninety to ninety-five per cent of his business is "betting on horses."
As to the method by which this type of business is conducted by the defendant it appears that for twelve years he had an office on Broadway in New York city with four unlisted telephones. Although the defendant testified at one point that he took no bets in his New York office it appears that he and his cashier took the incoming telephone calls and that it is the cashier who "makes the deposits *Page 221 in the bank and sends the checks * * * checks to any customers we have business with * * * 98% of the business is done by check." In that connection a significant detail of the business also appears from the following testimony: "Q. Now, when a player wins, where do you pay off the winnings to the players? A. Imail him a check. Q. And where are the checks mailed from? Where are the checks mailed? A. From where? From that office. Q. And they are deposited in the mail in Manhattan? A. Yes. Q. New York County? A. That's right." In the New York office the defendant also keeps various records including a "pay-off sheet" and a card index on each of which cards is kept "a proper credit notation."
In addition to business of the character described above, conducted by the defendant at his New York office, he maintains a "wire room" in New Jersey with twelve telephones each bearing a number in the New York City exchange. It also appears that he owns a concession at Hollywood, Fla. — "Club Boheme" — where roulette and dice are "carried on."
I thus find proof of a course of conduct by the defendant in which conducting wagers upon sporting events was not an occasional matter in a life spent chiefly in other pursuits. It was a persistent practice continued over a long period of years which the defendant himself admitted was his "business or occupation" and which he conducted in a broad field and by methods which give a clear indication of his studied and successful efforts to promote wagering by others on sporting events for his personal gain. I believe this evidence, when considered with legitimate inferences of fact fairly to be drawn therefrom, afforded the trier of the facts a proper and sufficient basis for the judgment of conviction now before us.
"It is not necessary that each particular fact should be proved beyond a reasonable doubt if enough facts are proved to satisfy the jury, beyond a reasonable doubt, of all the facts necessary to constitute the crime charged. In other words, the rule does not require the jury to be *Page 222 satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt, nor does it require that the evidence should produce absolute certainty in the minds of the jurors. It is sufficient if the evidence produces a moral certainty to the exclusion of every reasonable doubt. * * *
"To warrant a conviction on circumstantial evidence it is not esential that no inference or presumption shall be indulged in by the jury, that does not, in their minds, necessarily arise from the circumstances proved. Although circumstantial or presumptive evidence is allowed to prevail, even to the convicting of an offender, still the circumstances must themselves be proved and not presumed. Weight of circumstantial evidence is a question for the jury to determine." (2 Wharton's Criminal Evidence [11th ed.], § 922, pp. 1609-1611.) (See, also, People v. Connolly,253 N.Y. 330, 339, 341.)
In the face of evidence which tended directly and by legitimate inferences to prove that the defendant has had no visible profession or calling by which he has maintained himself over a period of years and that he did so for the most part by gaming, he chose to offer no evidence except proof that he is possessed of substantial property including bank stocks valued at $120,000 and a brokerage account in which are securities, purchased on margin, and valued at $421,813.46 in which he has an "equity" of $197,413.72. I find nothing in this evidence introduced by the defendant as a defense measure which absolves him from the charge made against him.
It is argued that the law here involved is in character a vagrancy statute and that the proof of defendant's wealth makes impossible the essential finding under the statute that he maintains himself, "for the most part, by gaming." Such an argument, as I view it, disregards the purpose of section 899 of the Code of Criminal Procedure, which this court has held to be "* * * to arrest the disorderly practices named, by compelling a disorderly person to give security for his good behavior." (People ex rel. Van *Page 223 Houton v. Sadler, 97 N.Y. 146, 147.) That ruling gave direction for all inquiries thereafter to be made under section 899 including the one in which we are now engaged. The objective then defined remains as clear today. In the exercise by the Legislature of the State's self-protecting power, a means is afforded by section 899, subdivision 5, by which may be stopped the sinister practice by which a professional gamester makes his living. In thus testing the conduct of a defendant charged with any one of the offenses listed in the subdivisions of section 899 this court placed the emphasis on "behavior" as the controlling factor, not upon the fact stressed by the accused that he possesses independent means sufficient for his maintenance.
The conviction should be affirmed.
LOUGHRAN and SEARS, JJ., concur with LEHMAN, Ch. J.; RIPPEY, J., concurs in separate opinion; LEWIS, J., dissents in opinion in which FINCH and CONWAY, JJ., concur.
Judgments reversed, etc. (See 283 N.Y. 774.)