"prizes or " premiums." (People v. Kelly, 3 N. Y. Crim. Rep. 274.)

Pool selling at horse races was declared to be void by the Revised Statutes. (Brennan & Brighton v. V. R. Assn., 56 Hun, 189, 30 St. Rep. 407.)

This remained a law until the enactment of the Penal Code. The Code was not intended to do and did not legalize such transaction unless permitted by such laws. (Id.)

The effect of chapter 479 of 1887 is that sales of pools may be made between May 15th and October 15th, but they must be confined to the tracks where the races take place and on the same day as the races for which the sale is made. (Id.; see People ex rel. Ottolengui v. Barbour, 5 N. Y. Crim. Rep. 384.)

The case of Jerome Park Company v. Board of Police (11 Abb. N. C. 342) arose under the law as it existed in 1882, before the enactment of chapter 479 of 1887.

An agreement by which one party sent through another to a third party money to be bet on the race track, on the horse to be run that day, was held to be a violation of this section. (People ex rel. Ottolengui v. Barbour, 5 N. Y. Crim. Rep. 381.)

Where a clerk walks up and down, following his employer, who makes the bets, and records them as they are made, he does not occupy any place upon the grounds for the purpose of recording bets or wagers, within the meaning of section 351, Penal Code. (People ex rel. Sturgis v. Fallon, 11 Crim. Rep. 273, 4 App. Div. 76.)

Two counts, one for occupying or keeping a room to be used for gambling, and the other allowing a room to be used for gambling purposes, may be properly joined in one commitment. (Id.)

Defendant charged with keeping a room, etc., cannot shelter himself behind his wife as the owner of the business. (Id.)

A commitment to answer, "upon a charge of violation of section 351 of the Penal Code," is void, as some of the fifteen acts therein referred to are or may be lawful. (People ex rel. Allen v. Hagan, 16 N. Y. Crim. Rep. 309, 170 N. Y. 46.)

The occupancy of premises not located upon the rack track for recording or registering bets on horse races does not fall within the exception of section 351. (People v. Levy, 16 Crim. Rep. 496, 72 App. Div. 55.)

The originator of the scheme is not guilty of pool selling or book making within section 351 of the Penal Code. (People ex rel. Lawrence v. Fallon, 11 N. Y. Crim. Rep. 279.) The fact that the owner of each horse who proposes to compete in the race is required to pay an entrance fee does not make the transaction a gambling transaction. (Id.)

Supreme Court-Appellate Division, Third Department. November, 1902.

THE PEOPLE v. AUGUSTUS LOOMIS.

(76 App. Div. 243.)

1. TRIAL REMARKS OF DISTRICT ATTORNEY AT OPENING.

Where the record does not contain the opening of the district attorney and all that is before the appellate court are the objections of defendant and remarks of the court, this court cannot find that the defendant was prejudiced in the minds of the jury by the opening. 2. BURGLARY-EVIDENCE-CONFESSION INVOLVING ANOTHER BURGLARY.

Upon the trial of indictment charging the defendant with burglarizing the house of one S, it appeared that, about the same time, he burglarized the house of one L; that a search warrant was issued, which resulted in the discovery of a portion of the property taken, a part of it from each of the houses, and that the defendant, with knowledge of the service of the search warrant and the finding of the property, made a complete disclosure of his participation in both burglaries to a witness sworn on the trial, and asked for the advice and assistance of such witness based on the confession as a whole. Held, that the fact that, in testifying to the confession so made by the defendant, the witness testified as to what the defendant said in respect to his participation in the burglary of the L house did not require a reversal of the judgment.

3. SAME-WAIVER IF OBJECTION THAT ACCUSED WAS NOT FIRST QUES

TIONED.

The act of calling the defendant, subsequently, to contradict the testimony given by such witness as to the alleged confession, operated as a waiver if any objection to the testimony of such witness based upon the ground that he was interrogated in regard to the alleged confession before the defendant was questioned concerning the same.

4. SAME-PROOF THAT OTHER ARTICLES WERE TAKEN.

Held, that evidence was admissible that articles were taken from the S house, in addition to those specified in the indictment, at the time and as part of the transaction on which the indictment was found, and also that such articles were found in the possession of the defendant.

5. SAME CROSS-EXAMINATION OF WITNESS FOR THE PEOPLE UNDER INDICTMENT FOR SAME CRIME.

A person who was under indictment for the same crime as that for which defendant was indicted, and also under indictment for concealing the stolen property, testified on behalf of the People to the burglarizing of the S house. Held, that the fact that on his crossexamination when interrogated concerning the removal of the goods from the place where they had been stored after the theft, he declined, on the ground that it would tend to incriminate him to answer questions relating to his personal connection with such removal, and that the court sustained his refusal, did not constitute reversible error.

6. TRIAL-WITNESS.

It is not error to allow a witness to testify, in explanation of the fact that in a previous trial of the case she swore directly opposite to the testimony given by her on the present trial, that she did so at the request of the defendant and because of fear of personal injury if she did not testify as he desired.

APPEAL by the defendant, Augustus Loomis, from a judg ment of the County Court of Madison county in favor of the plaintiff, rendered on the 21st day of March, 1901, upon the verdict of a jury convicting the defendant of the crime of burglary in the third degree and grand larceny in the second degree, and also from an order bearing date the 21st day of March, 1901, and entered in the office of the clerk of the county of Madison, denying the defendant's motion for a new trial.

G. P. Pudney, for the appellant.

M. H. Kiley, for the respondent.

CHASE, J.: The defendant was convicted of the crime of burglary in the third degree and grand larceny in the second

degree. The People contend that the evidence shows that, on the night of September 17, 1898, the defendant was at the house of one H., and that on the evening of that day defendant and said H. and one B., with a pair of horses and a wagon, went to a summer cottage, then unoccupied, belonging to one S. and his son, and that, while B. looked after the horses, H. and defendant broke into and removed from said cottage a large quantity of personal property and put the same into the wagon, and that said property was by them taken to the house of said. H. and all or substantially all of it was left there. On the 5th day of January, 1898, S. made application to a magistrate for a search warrant. A warrant was obtained to search for the goods of one L. and for the goods of S. H. received notice that a search warrant was about to be issued, and, with the assistance of others, during the night of January 5th removed some of the personal property stolen from S., and perhaps other property, from his house and secreted it in barns, stone piles and in the woods back of H.'s and defendant's premises. The search was made early on the morning of January 6th. Mrs. H. went to defendant's the night before with a lantern, and immediately after the search was made defendant came to the house of H. and asked Mrs. H. "If they had found anything at the house and she told him that they did." Defendant said: Mr. H. "knew what things were taken and he would have thought he would have got what things were stolen out of sight."

The indictment against the defendant, upon which he was convicted, was subsequently found, and in the indictment are enumerated certain articles as having been stolen by the defendant from the S. cottage, not, however, including all the articles so taken from said cottage.

The testimony taken on the trial is conflicting, but the verdict against the defendant should not be reversed as being against the weight of evidence.

The defendant objects to remarks which he claims were made by the district attorney in his opening. The record does not

contain the opening of the district attorney nor any part thereof. All that is before this court relating to such opening are the objections of the defendant and the remarks of the court.

Objections to the opening were twice made. The inference to be drawn from the first objection is uncertain. The objec tion may have been made in anticipation of statements that might be made or that were then only foreshadowed by the district attorney. The remark of the court following the second objection shows that the district attorney had not made the statement referred to in the objection. In the absence of a record as to what the district attorney did say, we cannot find that the defendant was prejudiced in the minds of the jury by the opening.

The People produced a witness by whom the defendant was employed about the middle of January, 1899, and he testified to a confession made by the defendant to him. His testimony relating thereto is as follows: "He said that 'Under the circumstances, Frank, I will tell you something, but you must promise never to tell of it.' I told him I would do all I could for him. He said his wife and my wife were some relation and had always been good friends, and he knew I would help him. He told me that Mr. Campbell and Hartwell, and Louisa Marvin and Wellington Barber and himself went to the Smith cottage. Q. What did he say they did there? A. Took the goods out. Q. What did he say about the Lewis cottage? (Defendant's attorney): I object to it as incompetent, improper and immaterial. You cannot prove the commission of another crime to convict the defendant on this indictment. The Court: I think we will take all that he said on this occasion. Exception to defendant. He said that Frank Hartwell and his wife and Morrell Campbell and Wellington Barber and himself went to the cottage of Mrs. Lewis. (People's counsel): Q. What did he say about that? A. Just the same. Q. State all that he said. A. He didn't want me to tell of it, and do all I