premises, it was their duty to execute it and go away. If they had no warrant, then their presence was unlawful, whether in the complainant's store or in the club rooms.

The learned counsel for the defendant cites a part of section 315 of the city charter as authorizing the defendants to enter private houses and places without warrants. It purports to make it the duty of the police "at all times of the day and night” to “carefully observe and inspect all places of public amusement, all places of business having excise or other licenses to carry on any business; all houses of ill-fame or prostitution, and houses where common prostitutes resort or reside; all lottery offices, policy shops, and places where lottery tickets or lottery policies are sold or offered for sale; all gambling houses, cockpits, rat pits, and public common dance houses, and to repress and restrain all unlawful and disorderly conduct therein." But this provision is not open to the construction contended for, as the police have been heretofore fully informed. The police may enter and inspect licensed places to a reasonable extent, but they have no such right in respect of private houses and places. They cannot enter the latter at will, or on suspicion, or on what they may choose to call their suspicion. This charter provision only means that they must observe and inspect them from the outside. If it meant more than this it would be void. It is a constitutional principle of government, here and in England, and of free government generally, that one's house may not be entered by the police or by government except under a warrant. The exceptions in the case of pursuing fleeing felons, or persons escaping from arrest, and the like, do not need to be stated here. The trouble with this charter provision is that it is crude and bungling. It mingles lawful and unlawful places together in one common class, and requires the police to inspect them and preserve order in them; whereas there is no such thing as the police standing about and preserving order in the latter places, as in the former, for they cannot be

sanctioned or suffered to exist at all. While its true interpretation is plain enough, it is nevertheless open to a false construction which enables the police to claim the right of visitation over houses of ill-fame and gambling houses, for instance. This would enable the police to take such places under their protection and practically license them, and derive a vast fund from them. It seems strange that a provision liable to be used for such a purpose should be permitted to remain in the city charter. The District Attorney of New York county, and also of Kings county, have called attention to its loose and dangerous character.

The motion is denied.

Court of Appeals.
April, 1903.

THE PEOPLE v. LEON STEDEKER.'

(175 N. Y. 57.)

1. BETTING AND GAMING-POOL ROOM-PENAL CODE, SECTION 351-INDICTMENT MUST ALLEGE PRESENCE OF BOOKS AND PAPERS.

A count in an indictment under section 351, Penal Code, for keeping and occupying a room for recording bets and selling pools on horse races is defective where it fails to allege that defendants kept and occupied a room with books, papers, apparatus or paraphernalia for the purpose of recording bets or wagers.

2. SAME.

The indictment need not specify the particular house or building in which the defendants are charged with keeping and occupying a room for the purposes forbidden. It is sufficient that the indictment charged the facts constituting the offense and the place where it was committed as within the jurisdiction of the court.

'Reversing 75 App. Div. 449, 17 N. Y. Crim. Rep. 127.

3. SAME WHERE ANOTHER PENALTY IS PROVIDED BY LAW.

Such an indictment is fatally defective in failing to aver that the rooms kept and occupied by the defendants were not on a race course authorized by statute, since the keeping of an establishment for gambling constitutes a felony under section 351, "except when another. penalty is provided by law," no other penalty therefor is prescribed by the Revised Statutes nor by section 343, that section embracing only cases not specifically provided for by section 351; but under the Racing Law, 1895, ch. 570, in the absence of an allegation that vouchers for bets or pools were ever delivered or intended to be delivered, or that defendants occupied and kept the room for that purpose, another penalty is prescribed by law which is both civil and exclusive, and, therefore, both the indictment and the proofs should negative the fact that the case comes within the exception.

APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, made November 7, 1902, which reversed an order of the Court of General Sessions of the county of New York sustaining a demurrer to an indictment and overruled such demurrer.

The facts, so far as material, are stated in the opinion.

John R. Dos Passos and Benjamin Steinhardt, for appellants.

William Travers Jerome, District Attorney (Howard S. Gans and Joseph S. Auerbach, of counsel), for respondent.

Joseph S. Auerbach and Herbert Barry, for the State Racing Commission et al., intervening.

CULLEN, J.: The appellants were indicted for violating the provisions of section 351 of the Penal Code. The indictment contains three counts. The first charges the appellant with the crime of keeping and occupying a room for the purpose of recording and registering bets and wagers and of selling pools upon the result of horse races and other contingent events; the second with the crime of keeping, exhibiting and employ

ing devices and apparatus for the purpose of recording and registering such bets and wagers and of selling pools; the third with the crime of keeping and occupying a room with books, papers, apparatus and paraphernalia for the purpose of recording and registering such bets and wagers and of selling pools. To this indictment the appellants demurred on the ground that it failed to state facts sufficient to constitute a crime. The principal objection urged by the appellants is that the section of the Penal Code referred to is unconstitutional and void because of the great difference between the punishment of offenses by that article when committed without the grounds of any racing association and that imposed by the Racing Law on the same acts when committed on the racing grounds. But the constitutionality of the Racing Law and of the provisions of section 351 of the Penal Code has been so recently affirmed by this court, the former in the case of People ex rel. Sturgis v. Fallon (152 N. Y. 1) and the latter in People ex rel. Weaver v. Van De Carr (150 N. Y. 439), that we deem it not necessary nor wise to reopen the discussion and shall confine ourselves to an examination of the objections to the form of the indictment.

It is contended that the first count is defective in failing to allege that defendants kept and occupied a room with books, papers, apparatus or paraphernalia for the purpose of recording bets or wagers. The objection is well taken. The statute makes the presence of the books or apparatus an essential ingredient of the felony defined by it. It is urged against all the counts that they are not sufficiently definite in that they fail to specify the particular house or building in the city of New York in which the defendants are charged with keeping and occupying a room for the purposes forbidden by the statute. This objection was not well taken. It is sufficient that the indictment charged the facts constituting the offense and the place where it was committed as within the juris

diction of the court. (People v. Buddensieck, 103 N. Y. 487.) If there were any question as to the particular place where it is charged that the offense had been committed by which the appellants could be in any way misled or prejudiced in their defense, the remedy was by motion for a bill of particulars. (Tilton v. Beecher, 59 N. Y. 176.)

We are now brought to the serious question presented as to the form and sufficiency of the indictment. By section 351 it is enacted that any one who commits any one of the acts which are thereby forbidden "is guilty of a felony, except when another penalty is provided by law, and upon conviction is punishable by imprisonment in the State prison for a period not less than one year, nor more than two years or by such imprisonment, together with a fine not exceeding two thousand dollars." It will thus be seen that the forbidden acts do not constitute a felony in all cases, nor, in fact, in any case, unless there is no other penalty provided by law for their commission. The appellants contend that the acts charged against them are subject by other statutes to specific penalties.

The first claim is that the provisions of the Revised Statutes which authorize the recovery of money lost on a wager thereby create a penalty for the offense of gambling. The decisions of this court are to the contrary. In Meech v. Stoner (19 N. Y. 26), it was held that the claim for money so lost was assignable, and in Ruckman v. Pitcher (20 N. Y. 11), that the claim bore interest. Both decisions proceeded on the ground that the statute was remedial, not penal; that the statute having made wagers void the loser never parted with the title to his money and that his suit was to recover only his own. It is also to be observed that these provisions relate to the subject of betting or losing money at play or on a wager, not to the maintenance of a house or establishment for gambling, which, substantially, is the offense with which the defendants are charged. There has always been observed a distinction between betting or