who is the owner, agent, or superintendent of a place, or of any device, or apparatus, for gambling; or who hires, or allows to be used a room, table, establishment or apparatus for such a purpose; or who engages as dealer, game-keeper, or player in any gam

erty is dependent upon the result; or who sells or offers to sell what are commonly called lottery policies, or any writing, paper, or document in the nature of a bet, wager, or insurance upon the drawing or drawn numbers of any public or private lottery; or who indorses or uses a book, or other document, for the purpose of enabling others to sell, or offer to sell, lottery policies, or other such writings, papers, or documents, is a common gambler, and punishable by imprisonment for not more than two years, or by a fine not exceeding one thousand dollars, or both."

bler any person "who engages as dealer, game-keeper or player in any gambling or banking game where money or property is dependent upon the result." The indictment is directed against the defendant, not for engaging as player in a game of draw poker, but for engaging therein as dealer and game-bling or banking game, where money or propkeeper. The evidence indicates that it was not merely as a player that he participated. The game was played with colored chips; each chip representing a certain sum of money, determined by the color. These chips or checks were "edged up" by the players toward the center of the table, and then, "before the hand was opened," sometimes the defendant and sometimes another party took off one or two checks, and placed them in front of him in a separate pile from the checks he was playing with. The inference sought to be drawn from this evidence was that the defendant thus reserved to himself a percentage over and above any of his win- This section of the Penal Law is a re-ennings as a player, upon the amount at stake actment of section 344 of the Penal Code. in each game where he so withdrew one or In Lyman v. Shenandoah Social Club, 39 two chips. This action on the defendant's App. Div. 462, 57 N. Y. Supp. 372, Mr. Juspart distinguished his conduct from that of tice Barrett pointed out that that section the people's witness and all the other players, did not by any means prohibit every indulexcept the other party, who is described as gence in gambling. In People v. Stedeker, having likewise withdrawn checks "at the 175 N. Y. 57, 62, 67 N. E. 132, 133, this court time the pot was made up," to quote the lan- said: "There has always been observed a guage of the witness. The jury was justified distinction between betting or gambling and in finding that such a proceeding brought | maintaining a gambling house, or a place to the defendant within the purview of the statute as one who was thus engaging as game keeper in a gambling game, provided the sole witness, whose uncorroborated testimony was relied on to establish the charge, was not an accomplice.

[3] It is plain that he was not an accomplice in the sense of being also a game keeper within the meaning of the statute. According to the evidence the only such gamekeepers present were the defendant and the other party who has been mentioned. Each participant in every game of poker that was played, however, on the occasion in question, acted as dealer when it became his turn to deal. The charge in the indictment is that the defendant "did engage as dealer and gamekeeper" therein; and hence it is argued that the defendant and the people's sole witness must be deemed to have been accomplices as dealers in a gambling game, whatever view may be entertained of the case in any other aspect. It is to be observed that there were no particular persons who can be said to have been engaged as dealers in these games of poker, as distinguished from the players in general, each of whom acted as dealer in turn.

The entire phraseology of the statute must be considered, in order to ascertain its purview and determine what degree of participation in the games which it denounces is necessary to constitute a player an accomplice. It reads as follows:

which people resorted 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. Wharton, Crim. Law, § 2446. The same distinction has obtained in this state, where ordinary betting has never been made a crime, though in some cases subject to small pecuniary mulcts, while the keeping of a gambling house, selling lottery tickets, and the profession of a common gambler have been subjected to severe punishment." See also, People ex rel. Lichtenstein v. Langan, 196 N. Y. 260, 89 N. E. 921, 25 L. R. A. (N. S.) 479.

The context makes it unreasonable to suppose that the Legislature, in enacting the clause under which this indictment was found, intended to include every game in which money is at stake in the phrase “gambling or banking game," or that every occasional participant in a money hazard at cards, who deals in turn, was designed to be comprehended in the term "common gambler." The phrase "who engages" is significant. It means something more than occasional participation. It imports some continuity of practice, just as the epithet "common" implies that a common gambler is a person who customarily, or habitually, or frequently carries on the gambling practices which are denounced by the statute. underlying idea is the habitual participation

The

[Ed. Note. For other cases, see Elections, Dec. Dig. § 95.*]

2. CONSTITUTIONAL LAW (§ 12*)-ConstrucTION OF CONSTITUTIONAL PROVISIONS.

[4] The proof sufficed to establish such par-4 permitted voters from rural communities to ticipation on the part of the defendant. It be registered on the first day of registration without attending in person, though they did warranted the inference that he was connot vote the preceding year, and that the ducting a gambling establishment which amended statutes was void as contravening yielded him a profit on each game played such section. therein. Nothing of the kind was proved in reference to the people's witness. "To constitute an accomplice, one must be so connected with a crime that at common law he might himself have been convicted, either as the principal or as an accessory before the fact." People v. Zucker, 20 App. Div. 363, 365, 46 N. Y. Supp. 766, 767, affirmed on opinion below 154 N. Y. 770, 49 N. E. 1102.3. Costs (§ 241*)—ON APPEAL-TEST CASE. There is no view of the evidence which would have justified the jury in convicting the witness of the crime of which they found the defendant guilty.

Whatever may eventually be determined to be the extent of the participation in gambling or banking games which is necessary to make a person liable under this provision of the Penal Law for engaging therein as player, we are quite clear that a person who merely takes part in a game or series of games of poker on precisely the same terms as the other participants in the game, for mere amusement or recreation, and not as a professional gamester, does not thereby become a common gambler under our statute. This was all that the people's witness appears to have done in the case at bar. It follows that he was not an accomplice of the defendant.

The judgment at the Appellate Division should therefore be affirmed.

CULLEN, C. J., and GRAY, VANN, WERNER, HISCOCK, and CHASE, JJ., concur.

Judgment of conviction affirmed.

(203 N. Y. 136.)

That which is necessary to make effective any provision of the Constitution will be implied as a part thereof.

[Ed. Note.-For other cases, see Constitution

al Law, Dec. Dig. § 12.*]

Where the proceeding was a test case to procure the construction of the election law, and both parties co-operated to have the law construed for the public benefit, no costs will be allowed to either party on appeal.

[Ed. Note.-For other cases, see Costs, Dec. Dig. § 241.*]

Appeal from Supreme Court, Appellate Division, Fourth Department.

In the matter of the application of Peter W. Fraser and another for an order directing the issuance of a writ of mandamus against William E. Brown and others, constituting the Board of Inspectors of Election for the Second Election District of the Town of Rutland, Jefferson County, New York. From an order of the Appellate Division (131 N. Y. Supp. 1115) affirming an order at Special Term denying the application, applicants appeal. Order reversed, and application granted.

Elon R. Brown and Henry H. Babcock, for appellants. D-Cady Herrick, Abram I. Elkus, and George R. Van Namee, for respondents.

VANN, J. The counsel for the respondents waive all irregularities and unite with the counsel for the appellants in urging a decision of this appeal as soon as possible,

FRASER et al. v. BROWN et al., Board of so that the result may be known in time to

Inspectors of Election.

(Court of Appeals of New York. Oct. 10,

1911.)

govern inspectors of election in preparing the registry lists for the annual election now near at hand. The limited time at our dis

1. ELECTIONS (§ 95*)-CONSTITUTIONAL PRO-posal while the court is in session renders

VISIONS-VALIDITY.

extended discussion impossible, but, as the single question involved is within a narrow compass, and does not require elaborate treatment, the interest of the public leads us to a brief expression of our views at the earliest moment practicable after they were matured in consultation.

Election Law (Consol. Laws 1909, c. 17) § 159, as amended by Laws 1911, c. 649, § 6, provides that, at the first meeting for registration in any election district wholly outside of a city or village of 5,000 or more inhabitants, the inspectors shall place upon the register the names of the voters at the last preceding general election, and also those presenting themselves in person, except the names of such elec[1] The question presented for decision is tors as are satisfactorily proven to have ceased whether the amendment of section 159 of the to be such, and upon all days of registration election law, as made by section 6 of chapthe names of all others who may appear in per- ter 649 of the Laws of 1911, is a violation of son before the board and apply for registration, and who will be qualified electors. Const. section 4 of article 2 of the Constitution of art. 2, § 4. provides that, in cities and villages our state. Stated in another form, the queshaving 5,000 inhabitants or more, voters shall tion is whether the Legislature has the conbe registered upon personal application only; stitutional power to prohibit the registration but voters not residing in such cities or villages need not apply in person for registration at the of a duly qualified elector, who did not vote first meeting of the officers. Held, that section at the last general election, and who does

not reside in a city or village with a popula- | spectors shall place upon the register the tion of 5,000 or more, without his personal names of all persons who voted at the last appearance before the board of inspectors? preceding general election, as shown by the The Constitution provides that: "Laws register or poll-book of such election and shall be made for ascertaining, by proper also those presenting themselves in person, proofs, the citizens who shall be entitled to except the names of such electors as are the right of suffrage hereby established, and proven to the satisfaction of such inspectors for the registration of voters; which regis- to have ceased to be electors in such district tration shall be completed at least ten days since such general election, and upon all before each election. Such registration shall days of registration the names of all other not be required for town and village elec- persons who may appear in person before tions except by express provision of law. the said board and apply for registration In cities and villages having five thousand and who are or who will be at the election inhabitants or more, according to the last for which the registration is made qualified preceding state enumeration of inhabitants, electors." voters shall be registered upon personal application only; but voters not residing in such cities or villages shall not be required to apply in person for registration at the first meeting of the officers having charge of the registry of voters." Article 2, § 4.

No

sonal application. The obvious reason for | on implication; but so do many commands the distinction is that personal appearance of the Constitution, including the construcbefore the board is much less convenient in tion contended for by the respondents. those localities where many of the electors Constitution was ever drawn so as to be an live far from the place of registration, than effective foundation for the government of in cities and villages where they live com- a state without applying thereto the docparatively near. In some towns certain vot- trine of implication. It is well established ers would have to travel many miles over that whatever is necessary to render effecpoor roads, and, it may be, in bad weather, tive any provision of a Constitution, whethin order to appear in person to be register- ed it is a grant, restriction, or prohibition, ed. This would be a hardship tending to "must be deemed implied and intended in hinder registration in many cases, and, in the provision itself." Black's Constitutional the case of some aged or infirm electors, a Law, 78; Endlich on Interpretation of Stathardship so severe as to prevent their reg- utes, § 535; Story on the Constitution, § istration altogether. The discussion in the 428, and cases cited. Hence, when the Conconstitutional convention tends strongly to stitution provides that certain voters "shall show, not only that this was the reason for not be required to apply in person for regmaking the discrimination, but that the pro- istration at the first meeting of the" inspecvision was understood to mean that voters tors, it is implied that the Legislature is from farming communities could be regis- prohibited from passing any statute to the tered on the first day without attending in contrary, because that implication is necesperson, even if they did not vote the year sary to render the provision effective. before. Revised Records Cons. Conv. of 1894, vol. 4, pp. 111, 112, and 716 to 723; Lincoln's Cons. History, vol. 3, pp. 102 to 107. If the Constitution does not mean this, what does it mean? What was the object of the last clause of the sentence in question? It has some important function to perform, or it would not appear in a solemn and dignified instrument enacted by the people themselves as the structural law of the state. If it was intended, as the respondents claim, to permit registration by copying the last poll list, it does not say so. No such idea would be suggested to the minds of the "plain people" for whom the Constitution was written. Moreover, such permission was needed, for, independent of the last clause, the Legislature may make reasonable regulations to govern registration, provided they do not conflict with any constitutional requirement. If by the last clause it was intended simply to require more than one day for registration in country districts, as the respondents also claim, why was it not required expressly, instead of in a roundabout way, resting wholly on an implication for which we find no warrant in the language of the Constitution?

no

"Proper proofs" may be required by the Legislature, and, within the limits of reason, the nature of the proof is within its control, except that proof involving personal appearance cannot be required on the first day. Proof by affidavit, or by the testimony of a third person, may be required by statute; but, if the proof so required is furnished at the first meeting, to the satisfaction of the inspectors, the Legislature can neither authorize nor require those officers to refuse to register without the personal appearance of the applicant. That is thing that it is prohibited from doing.

one

[3] After considering the question with the serious concern which its importance demands, we are compelled to adjudge that the Legislature exceeded its power in providing that all voters residing outside of cities or villages with a population of 5,000 or more, whose names do not appear on the poll book of the last general election, shall apply in person in order to be registered, and that the attempt to impose this requirement, as made by section 6 of chapter 649 of the Laws of 1911, is unconstitutional and void. As this is a test case, and the respondents not only acted in good faith, but co-operated with the appellants in the effort to settle the law for the benefit of the public at large, no costs are allowed to either party.

The orders should be reversed, and the peremptory motion for a writ of mandamus granted, without costs.

CULLEN, C. J., and HAIGHT, WERNER, WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur.

Orders reversed, etc.

In a homicide case, where there was evi[2] It is true that the prohibition rests dence that defendant had stated the deceased

had bullied and beaten him, but he had testified | Brown, the deceased, lived on the first floor that there had been no quarrel or rupture be- with his mother and a woman called Minnie tween them, the court, instead of charging that the deceased bullied and beat the defendant, should have stated the proposition in the alternative.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1754-1764; Dec. Dig. $ 761.*]

3. HOMICIDE (§ 340*) - APPEAL - HARMLESS ERROR.

[Ed. Note. For other cases, see Homicide, Dec. Dig. § 340.*]

4. HOMICIDE (§ 340*)-PROSECUTION-APPEAL -HARMLESS ERROR-INSTRUCTIONS.

In a homicide case, where the court charges upon the two degrees of murder, but upon defendant's request to charge as to the various degrees of manslaughter only charged as to manslaughter in the first degree, and the jury found defendant guilty of murder in the first degree. the failure to charge more fully was not prejudicial, since, the jury having rejected the alternative of murder in the second degree, all lower degrees were also eliminated.

Brown.

The defendant occupied the upper part of the house with a woman known as Martha Lewis. The homicide occurred in the evening of May 21, 1910. Earlier in the evening, the defendant and some of his as

sociates met at the saloon of one Flood. The deceased was in the party. At first they played pool, but later they engaged in a game called "craps." Meanwhile they all drank more or less beer or liquor, and the

Where the evidence as to the facts of the killing by accused was absolutely unequivocal, the question of motive was not of controlling importance; and hence an instruction on the question of motive, which erroneously assumed game ended when the deceased had won all that deceased had bullied and beaten accused, the money of the other members of the parwas not prejudicial. ty. his home, and soon thereafter the proprietor At that juncture the deceased left for of the saloon requested the others of the party to leave. The defendant and two of his companions, named Goff and Nichols, went to the home of Nichols, where Flood had some laundry waiting for him. While there, the defendant arranged to borrow a revolver from Nichols, and then this trio went to the house of the deceased. The defendant rapped at the entrance door, and asked for his mother. Minnie Brown answered that they had all retired for the night. The defendant was insistent, however, and the deceased came to the door and In a prosecution for homicide, where the opened it, when the defendant at once fired court in part of its charge quoted from the ar- two shots in quick succession, both of which gument of the district attorney, stating that lodged in the body of the deceased. One of it was the state's contention, and that the law these shots penetrated the abdominal aorta, was, that a man is presumed to intend the natural consequences of his act, but further charged causing internal hemorrhage, which resultthat, even though death might have been the ed in death within a few minutes. natural consequence of defendant's act, it did these facts, there is no controversy, and they not establish premeditation or deliberation, the jury could not have been misled by the quota-are established by direct testimony, which tion from the argument of the district attorney. clearly proves that the deceased met his [Ed. Note.-For other cases, see Criminal death at the hands of the defendant. There Law. Cent. Dig. 88 1992-1995; Dec. Dig. 8 was other evidence on the part of the prose823.*] cution tending to show that the shooting Appeal from Supreme Court, Trial Term, was done with premeditation and deliberaWestchester County.

[Ed. Note. For other cases, see Homicide, Dec. Dig. § 340.*]

5. CRIMINAL LAW (§ 823*) - PROSECUTION INSTRUCTIONS.

WERNER, J. On the 24th day of June, 1910, the defendant was convicted of the crime of murder in the first degree. From the judgment of death entered upon that conviction, the defendant has appealed to this court. Very little need be said in disposing of the appeal, since the defendant's conviction was clearly warranted by the evidence, and none of the exceptions are of sufficient importance to justify a reversal of the judgment

The story of the homicide, as told by the witnesses for the prosecution, is short and simple. The defendant and the deceased were half-brothers, both living under the same roof, but not in one family, in the village of Rye, in Westchester county. William

tion.

As to

The defendant, although admitting that he fired the fatal shot, claims to have done so in self-defense. He testified that when the deceased opened the door the latter gave utterance to an obscene and threatening remark, and took the defendant by the throat, making an attempt to get at the revolver, which was held by the defendant, and cutting the defendant about the neck and chest. The defendant also insisted that he shot, not to kill his brother, but to scare Nichols and Goff, so as to keep them from hurting the deceased. This testimony was offset by various statements, made by the defendant at different times, indicating that he had been bullied and beaten by the deceased, and that the homicide was not justifiable, but was committed with deliberate and murderous intent. It would serve no useful purpose to recite in detail the evidence which characterizes the defendant's act. It is enough to say that the evidence present