After his escape the indicted person surrendered himself
and was again admitted to bail. Sometime after the dis-
trict attorney moved for dismissal of the indictment and
stated in open court that there never had been any evidence
justifying the indictment or trial of the indicted person,
and a subsequent assistant district attorney, thoroughly
familiar with the matter, makes an affidavit that the People
lost no rights by reason of the absence of the prisoner dur-
ing his term. Held, that motion for remission of forfeiture
of bail should be granted. Id.
1. PENAL CODE, SECS. 343, 351.
The occupying and keeping a place with paraphernalia
for making, recording and registering bets and wagers con-
stitute a crime punishable under section 351 of the Penal
Code, and section 343, Penal Code, and section 17 of chap-
ter 570 of the Laws of 1895 do not take the acts charged
out of the operation of section 351 and so render them in-
nocent. People v. Stedeker, 127.
Section 351 of the Penal Code is not in conflict with sec-
tion 1 of the Fourteenth Amendment of the Constitution
or with the 977th section of the Revised Statutes of the
United States, in that it establishes two different punish-
ments for the same offense. Id.
3. BETTING AND GAMING-POOL ROOM-PENAL CODE, SEC-
TION 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 re-
cording bets or wagers.
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. People v. Stedeker, 326.
5. 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 Re-
vised 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 pen-
alty 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.
Id.
See GAMBLING, 1, 2, 3; POOLSELLING.
A board of health has no right to forbid the bringing
into a village of fresh table and kitchen refuse from a sani-
tarium for consumptives as food for hogs and fowls, so
long as there was no proof that this refuse was any more
dangerous than the refuse from any hotel. People v. Van
Failure to repay margins by. See LARCENY, 3.
CERTIFICATE OF REASONABLE DOUBT.
1. MURDER IN SECOND DEGREE
Defendant was convicted of murder in the second degree
upon
evidence which established that he was discovered in
the night time attempting to force open a second story rear
window and was hunted from yard to yard by the police, at
last running up a fire escape to get away from a woman
with a pistol who shot at him twice from below when he
shot and killed a man who had leaned out of a window
and struck at him. Held, that as the trial judge refused to
instruct as to manslaughter and charged that at the time
of the homicide the defendant was attempting to commit a
burglary, in spite of the fact that when he killed the man he
was on the other side of the block trying to escape, it pre-
sented a proper case for the issue of a certificate of reason-
able doubt. People v. Young, 258.
2. TRIAL-INSTRUCTION, WHERE NOT REQUESTED BY JURY.
Where a trial judge sends twice for the jury, without
their having asked for instruction or communicated with
him, and tells them that it is unfortunate that they have
not agreed and urges the importance of the case, the time
and expense to the public, and then calls upon each of them
separately to state if he did not desire any information, it
constitutes a reason for justifying a certificate of reason-
able doubt. Id.
Where the court had endeavored by questioning the jury
to force them to agree it does not cure the defect for the
court to say: "I will withdraw them all. I do withdraw
them all, and direct the jury to pay no attention to them."
CHARGE OF JUDGE.
See APPEAL, 4, 5; FORGERY, 2; POLICE, 4.
CHILD UNDER SIXTEEN-SENTENCE WHERE GUILTY OF MIS-
DEMEANOR PENAL CODE, SEC. 713.
A child under sixteen convicted of petit larceny was
properly sentenced by the recorder of New York to the
New York Catholic Protectory under the provisions of sec-
tion 713 of the Penal Code. People ex rel. Sanfellipo v.
N. Y. Cath. Protectory, 113.
Sec. 8. See TRIAL, 8.
Sec. 148. See TRIAL, 10.
Sec. 313. See INDICTMENT, 1.
Sec. 376. See TRIAL, 9.
Sec. 399. See PRIZE FIGHT, 2.
Sec. 444. See HOMICIDE, 1.
When admission in evidence is not erroneous. People v.
PENAL CODE, SEC. 384H, CONSTITUTIONAL.
Subdivision 1, section 384h, of the Penal Code, provid-
ing that any person or corporation contracting with the
State or a municipal corporation who shall require more
than eight hours' work for a day's labor is guilty of a mis-
demeanor, held to be constitutional. People v. Orange
County Road Con. Co., 14.
See ELECTION, 3; GAMBLING, 3; HOMICIDE, 3.
DEPOSIT IN LIEU OF UNDERTAKING.
Where defendant deposited $300 in lieu of undertaking
for support of his wife and costs of appeal, and the judg
ment was affirmed, whereupon the defendant surrendered
himself and was committed, Held, that while there may be
no express statutory authority for such cash deposit, it was
made in the interest of justice, and the court would not or-
der its return but would discharge defendant and apply the
money to the support of the wife and costs, leaving the
overplus only to be returned to defendant. People v.
Burke, 28.
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