People v. Stedeker

O’Brien, J.: The indictment is drawn with reference to section 351 of the Penal Code and is framed in three counts, all substantially the same, varying only in verbiage, and charging the defendants with occupying and keeping a place with paraphernalia for making, recording and registering bets and wagers. Without, therefore, setting forth the counts at length, it is sufficient to say that the act charged in each of them constitutes a crime punishable under section 351 of the Penal Code. This appeal involves two questions. The first is as to whether, by virtue of section 343 of the Penal Code and section IT of chapter 570 of the Laws of 1895, the acts charged are taken out of the operation of section 351 of the Penal Code and rendered innocent. This question has been considered and decided adversely to the contention of the defendants by this court in People v. Levoy (72. App. Div. 55), which was relied upon by the -second department in passing on the case of People ex rel. Clifton v. De Bragga (73 App. Div. 579). The second question is whether section 351 of the Penal Code, is in conflict with section 1 of the 14th amendment of. the Constitution and the 977th section of the Be vised Statutes of the United States, in that it establishes two different punishments for the same offense, and also for that reason in violation of article 1, section 1, article 1, section 6 and article 3, section 18 of the Constitution of this State. Whatever may be the rule in other jurisdictions, we think that this-question is equally well settled by the Court of Appeals in this State in the case of Williams v. People (24 N. Y. 408) and in People v. Havnor (149 id. 195). In the former, it was held that: the act of the Legislature which made theft from the person of another of less than twenty-five dollars grand larceny if committed in the city of Hew York was constitutional, although the same-crime in other parts of the State was petit larceny. And in People v. Havnor (supra), where by chapter 823 of the Laws of 1895, known as the Sunday Barbering Act, it was made a misdemeanor for any person to carry on or engage in the work of a barber on Sunday, except in the city of Hew York and the village of Saratoga. Springs, it was held .that the statute was a valid exercise of the police power by the Legislature, working no deprivation of liberty [451] or property within the meaning of article 1, section 6, of the State Constitution, and did not violate section 1 of the 14th amendment of the Federal Constitution by denying the equal protection of the laws. The questions raised on this appeal having, therefore, been passed upon in the cases cited adversely to the contention of the respondents, it follows that the order appealed from must be reversed and the demurrer overruled. Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred. Order reversed and demurrer overruled.