I concur in the judgment for the following reasons: —
Section 337a of our Penal Code is in all essentials (saving that of the penalty prescribed) an exact re-enactment of section 351 of the Penal Code of the state of New York. It is a familiar rule that when one state enacts a statute taken from the books of a sister state, the construction which the courts of the latter state have put upon the statute is of great value and of high persuasive force in its interpretation. If a reading of this statute did not clearly disclose, as I think it does, that its principal, if not its sole, object is to prevent bookmaking and pool-selling, the construction which the courts of New York have put upon it would resolve all possible doubt. The courts of New York were called upon to consider this law in the light of a provision of their constitution of 1894, which provided (art. I, sec. 9), "Nor shall any lottery, or the sale of lottery tickets, pool-selling, bookmaking or any other kind of gambling hereafter be authorized or allowed within this state, and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section." No such provision is found in the constitution of California, and as this state adopts the common law where the statutes are silent, it follows, as at common law, that the mere laying of a bet or wager upon an indifferent subject is not illegal. "The distinction has always been observed," says Wharton on Criminal Law, par. 2, p. 446, "between betting or gambling and maintaining a gambling house or a place to which people resort to gamble. While at common law wagers on indifferent subjects were legal and might be enforced, a gambling house or a resort for gamblers was a public nuisance, for which its keeper might be indicted." And the court of appeals of New York, upon this subject has said (People v. Stedeker,175 N.Y. 57, [67 N.W. 132]): "The same distinction has obtained in this state, where ordinary betting has never been made a crime, . . . while the keeping *Page 479 of a gambling house, selling lottery tickets and the profession of a common gambler have been subject to severe punishment." This opinion, it is pointed out in People ex rel. Collins v.McLaughlin, 128 App. Div. 599, [113 N.Y. Supp. 188], was rendered in 1903, eight years after the enactment of section 351 of the New York Penal Code in practically its present form. In the last-cited case the defendant was charged with a violation of the section, in having "received" five dollars at the race-course of the Brooklyn Jockey Club, as the result of a bet which he had made upon a horse race, the bet having been made and accepted orally with one John Rall. The court declared in terms that section 351 of the Penal Code was intended to prevent bookmaking and pool-selling, that is, the business of taking and recording bets and wagers and acts which are incidental to that business, and does not make it a crime to receive a sum of money as the result of a bet upon a horse race which was made and accepted orally. We may pause here to say that it would certainly be a singular law which would make it no crime to lay such a wager and for the winner to receive the money, and yet would make it a crime if one became a stakeholder of such wager without gain, hire, or reward. The court of appeals of New York, in People exrel. Lichtenstein v. Langan, 196 N.Y. 260, [89 N.E. 921], construing this law, reaffirmed the declaration in People v.Stedeker, saying that "in this state an ordinary bet has never been made a crime, while the keeping of a gambling house has been subject to severe punishment. The laying of odds standing alone does not, therefore, constitute a crime. If a man should offer to bet the ladies of his party a pair of gloves to a box of candy, it would be the laying of odds and publishing the same. To hold him to be a bookmaker would, in my judgment, be a departure from the rule which gives to the terms of the statute their ordinary and accepted meaning, and would be a construction which was not within the contemplation of the legislature. The vice of bookmaking chiefly consists in soliciting and in the inducing the public to take chances in the carefully figured and planned scheme of the bookmaker, and this, in order to be profitable to him, requires the writing out of the list of the odds laid on some paper or material so that they could be seen by those who were solicited to invest." *Page 480
With the light thus thrown upon the meaning, the purpose, the scope, and intent of the statute, the question immediately under consideration is easily answered: Is a man who, without consideration to him paid, or to be paid, and not for gain, hire, or reward, becomes the custodian and depositary of a sum of money already wagered between two citizens, guilty of a felony? The very language of the law is against such a construction. And, bearing in mind that at common law the laying of a wager upon such an event was not a crime, the mere depositary of the money or things wagered himself could not be guilty of a crime. The language of section 337a in effect declares that "the custodian or depositary for gain, hire or reward is alone guilty." In other words, the law is directed against one who, for gain, hire, or reward, has become such a depositary; who thus is engaged in a business violating the spirit of the law aimed against pool-selling, bookmaking, and professional gambling. Elsewhere the section under consideration makes one guilty of a felony "who receives, registers, records or forwards, or purports or pretends to receive, register, record or forward in any manner whatsoever any money, thing, or consideration of value bet or wagered, or offered for the purpose of being bet or wagered by or for any other person, or sells pools upon any such result." A reading of this language, with its context, makes it apparent that the "receiving" there under consideration does not make the mere reception as a stakeholder a crime, but it is a receiving in aid of the condemned purposes of bookmaking and pool-selling, a receiving which is a part of the scheme of registering, recording, and forwarding the money bet, in aid of the actual bookmaker or pool-seller. Not only is this quite apparent from the context, but it is the precise construction which has been put upon the language in New York, where the attempt was made to convict one who had received five dollars as the result of a wager. In People ex rel. Collins v. McLaughlin, 128 App. Div. 599, [113 N.Y. Supp. 188], a historical review is had of the legislation in New York upon this subject, and the reasons for the enactment of this especial provision are given. In brief, it appears that bookmaking and pool-selling upon race tracks in the state of New York were not illegal, though it was a felony to sell pools or make books elsewhere than at an authorized race track. The poolroom people outside of the *Page 481 race tracks "thereupon devised a scheme by which they claimed to be merely forwarders of the money deposited by bettors with them. They pretended to receive the same as common carriers to send to the race tracks where it could be bet. This is clearly shown by the opinions in People v. Wynn, 35 N.Y. St. Rep. 487, [12 N.Y. Supp. 379], decided in December, 1890, affirmed on opinion below,128 N.Y. 599, [28 N.E. 251]; and People v. Fisher, 42 N.Y. St. Rep. 884, [17 N.Y. Supp. 162], decided in December, 1891." It was to meet this condition that the language which we have been considering was adopted in New York. Thus one who becomes a depositary of a thing wagered for the purpose of recording and forwarding the wager, and so aids the business of bookmaking and pool-selling, or one who becomes a depositary of things wagered for hire, gain, and reward, and thus becomes a professional aid to gambling, are one, and both under the ban of the law. But as the law nowhere denounces as criminal the mere laying of a wager, so it would be preposterous to say that it denounced as a criminal one who became the depositary of such wager, not by way of aiding the pool-selling business, and not for hire or reward, but as a mere matter of accommodation to the bettors.
Lorigan, J., concurred.