Defendant was adjudged a "disorderly person" within the meaning and intent of subdivision 5 of section 899 of the Code of Criminal Procedure which provides that "disorderly persons" are "persons who have no visible profession or calling, by which to maintain themselves, but who do so, for the most part, by gaming" and was required to furnish an undertaking of $10,000 to be of good behavior for one year (Code Crim. Proc. § 901).
Persons presented as "disorderly persons" under that statute are neither felons nor misdemeanants and are not charged with nor tried for the commission of any crime (People ex rel. Clark v.Keeper of State Reformatory, 38 Misc. Rep. 241; affd., 176 N.Y. 465). The proceeding is anomalous since the defendant is not charged with a specific offense but, rather, with habitual misconduct and the magistrate is authorized to conduct and act upon a summary investigation with no mandate to observe the requirements for trial as in the case of persons charged with the commission of crimes (Hill v. People, 20 N.Y. 363, 368). The person whose conduct is sought to be controlled cannot be charged with the offense of being a common gambler or a bookmaker. Those are included within the purview of article 88 of the Penal Law. Nor can a penalty be imposed on such a person upon conviction on a charge presented under the subdivision of the section under consideration for making, registering or recording "bets and wagers *Page 215 upon the result of any trial or contest of speed or power of endurance of horses" taking place upon any New York State race track since section 17 of the racing law (Laws 1934, ch. 233) provides a penalty which is declared to be exclusive of all other penalties for the acts specified therein (People v. Stedeker,175 N.Y. 57). Though a person may be tried and convicted as a common gambler or a bookmaker under the penal laws or may, upon a proper showing, be subject to the penalty imposed by the racing law, the plea of double jeopardy upon a charge of being a disorderly person under subdivision 5 of section 899 of the Code of Criminal Procedure will not be available to him (Cf. Peopleex rel. Van Houton v. Sadler, 97 N.Y. 146).
Under the particular subdivision of section 899 under consideration, proof that a person is disorderly in the generally accepted meaning of the term as applied under vagrancy statutes to those who offend against the public peace, good order, good morals and public safety is insufficient as a basis for conviction. To bring a person charged with being a "disorderly person" within the terms of subdivision 5 of the statute, it must be shown by the People by legally admissible and adequate evidence not only that he had no visible profession or calling by which to maintain himself but also that he maintained himself for the most part by gaming.
All of the evidence on which the People relied was read into the record, over the objection and exception by defendant, from a transcript of testimony given by defendant before a Commissioner of Investigation of the City of New York. It is unnecessary to consider or pass upon the propriety of admitting that testimony. Assuming for the purposes of this decision that it was properly admitted, the testimony so used consisted of voluntary extrajudicial admissions of defendant as to facts both material and relevant to the charge. That concession does not change the law as to the weight to be given to such admissions nor as to their scope or sufficiency. When admissions are exclusively relied upon in a case of this kind they must *Page 216 possess probative value beyond reasonable doubt as to every element necessary to be proven to establish the charge. Proof by admission of one element essential to the charge does not necessarily raise any inference by way of admission of another separate and distinct element of the charge. Based upon those tests and giving them all the probative value that legally may be assigned to them, admissions made by defendant fail to sustain the charge.
The defendant admitted that he was and had been for twenty years a bookmaker and commission broker specializing in horse-racing bets, with an office for the past twelve years, up until two months prior to the trial, at 1480 Broadway, New York city; that he took bets on horse races and accepted bets on sporting events including prize fights, football and baseball games; that he had two employees at that location; that his receipts and payments were principally by means of checks; that he kept records including a pay-off sheet; that some of the bets were received by him and some by others; that he was also a bookmaker on the New York race tracks, accepted bets at the New York race tracks and did a wire business as bookmaker outside of the New York city lines, taking bets on the wire in New Jersey, and had bookmaking connections throughout the country; that although he had telephone connections in the New York office, he took no bets at that office, that he took the bets from his New Jersey office; and that he also was the financial backer of a crap game and roulette in Florida and of the Club Boheme in Hollywood, Fla., where roulette and dice were the gambling activities carried on. He admitted that taking bets on horse races constituted the largest percentage of his business. He was asked by the prosecutor and said: "Q. Now, by `business,' we understand each other, you are referring to placing bets on horses? A. That's right. Q. Is that the great bulk of your business? A. Yes, horses. Q. Would you say that 90 to 95 per cent of your business is betting on horses? A. That's right." Those admissions, in short, completed the People's case. *Page 217
There was no evidence that he was doing business in New York for two months as a bookmaker prior to the trial. No proof or admissions whatever were presented as to the amount of defendant's business as described in the People's case, the cash he received or paid out therefrom, or that he derived any financial return whatsoever from the foregoing activities. The mere fact that a person conducts a particular business withoutmore warrants no inference that he is making or losing money in the venture or that he is maintaining himself from it. If the business which defendant described is "gaming" within the meaning of the statute, there was no evidence that from that business he maintained himself in whole or in part. The magistrate recognized this deficiency in proof but asserted that he felt warranted in construing the facts and circumstances most strongly against the defendant since the defendant, if innocent, might have controverted or explained them. As we have said, being a "disorderly person" is not denominated a crime. Nevertheless, it is in nature quasi-criminal since, under the statute, the offender must either post a bond for good behavior or suffer imprisonment. Defendant was under no obligation to prove any fact essential to sustain the charge nor to controvert or explain the admissions relied upon and, from the testimony adduced, no presumption arose as to the source of his maintenance.
With the record in the shape above described, the People rested their case and the defendant's motion to dismiss the information was denied. Though entitled to rely upon the deficiencies in the proof of the People for dismissal of the charge, defendant presented evidence to the effect that he had opened a brokerage account on February 9, 1937, by a deposit of $50,000 in cash in which, on May 6, 1939, he owned securities of the market value of $421,833.46 with an equity of $197,413.72. Additionally, he produced in court 1,119 shares of stock of the National City Bank, which were registered and issued in his name on January 10, 1934, and also 850 shares of stock in the Chase National Bank and 865 shares of the stock of the Chemical Bank *Page 218 and Trust Company, registered in his name and issued to him on June 28, 1934. He also showed that he owned $125,000 worth of negotiable bonds. Thus it appeared at the close of the case that the defendant had a profit in the two years and three months before the case was tried of some $150,000 through his stock trading account, and that he owned upwards of $125,000 worth of negotiable bonds and 2,834 shares of stock in three of the leading banks of the city of New York from which he had an income of more than twelve thousand dollars per year. The magistrate suggested that the evidence adduced by the defendant could be given no weight since he reached the "irresistible inference" that the defendant's show of wealth came directly from excessive gambling practices. There was no evidence concerning its source. The source was not material on the charge on which he was being prosecuted. We have pointed out that there was no evidence in the case directly proving or from which any inference could be drawn that defendant had any income from gaming with which to maintain himself. Had there been any such evidence, in the absence of testimony or other proof from which the inference properly could be drawn that from the income so received he maintained himself for the most part, proof of his other income, without more, would have been sufficient to require a dismissal of the charge at the close of the case.
In view of what I have said above, I deem it unnecessary to consider any other questions in this case. In my judgment we should not only reverse the judgment but should dismiss the information and discharge the defendant. Three other members of the court are for reversal but believe that a new trial should be granted. Thus, I find it necessary to adopt their view as to the allowance of a new trial.
The order of the Court of Special Sessions, Appellate Term, and the judgment of the Magistrates' Court should be reversed and a new trial ordered. *Page 219