Adams v. New York

This is a writ of error to the supreme court of the state of New York. The plaintiff in error at the April term, 1903, of the supreme court of the state of New York, was tried before one of the justices of that court and a jury, and convicted of the crime of having in his possession, knowingly, certain gambling paraphernalia used in the game commonly known as policy, in violation of § 344a of the Penal Code of the state of New York. This section and the one following, § 344b, relating to the offense in question, are as follows:

Sec. 344a. Keeping Place to Play Policy-'A person who keeps, occupies, or uses, or permits to be kept, occupied, or used, a place, building, room, table, establishment, or apparatus for policy playing, or for the sale of what are commonly called 'lottery policies,' or who delivers or receives money or other valuable consideration in playing policy, or in aiding in the playing thereof, or for what is commonly called a 'lottery policy,' or for 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 shall have in his possession, knowingly, any writing, paper, or document, representing or being a record of any chance, share, or interest in numbers sold, drawn, or to be drawn, or in what is commonly called 'policy,' or in the nature of a bet, wager, or insurance, upon the drawing or drawn numbers of any public or private lottery, or any paper, print, writing, numbers, device, policy slip, or article of any kind such as is commonly used in carrying on, promoting, or playing the game commonly called 'policy;' or who is the owner, agent, superintendent, janitor, or caretaker of any place, building, or room where policy playing or the sale of what are commonly called 'lottery policies' is carried on with his knowledge, or, after notification that the premises are so used, permits such use to be continued, or who aids, assists, or abets in any manner, in any of the offenses, acts, or matters herein named, is a common gambler and punishable by imprisonment for not more than two years, and in the discretion of the court, by a fine not exceeding $1,000, or both.'

Sec. 344b. Possession of Policy Slip, etc., Presumptive Evidence.-'The possession, by any person other than a public officer, of any writing, paper, or document representing or being a record of any chance, share, or interest in numbers sold, drawn, or to be drawn, or in what is commonly called 'policy,' or in the nature of a bet, wager, or insurance upon the drawing or drawn numbers of any public or private lottery, or any paper, print, writing, numbers, or device, policy slip, or article of any kind, such as is commonly used in carrying on, promoting, or playing the game commonly called 'policy,' is presumptive evidence of possession thereof knowingly and in violation of the provisions of § 344.

The assignments of error in this court are:

'First. That the court erred in holding that by the reception in evidence of the defendant's private papers seized in the raid of his premises, against his protest and without his consent, which had no relation whatsoever to the game of policy, for the possession of papers used in connection with which said game he was convicted, his constitutional right to be secure in his person, papers, and effects against unreasonable searches and seizures was not violated, and that he was also thereby not compelled to be a witness against himself, in contravention of the 4th, 5th, and 14th Articles |[[of Amendment]] to the Constitution of the United States.

'Second. That the court erred in holding that the statute, §§ 344a, 344b, of the Penal Code of the state of New York, under which the indictment against the plaintiff in error was found, and his conviction was had, did not deprive him of rights, privileges, and immunities secured to other citizens of the United States and of said state of New York, nor of liberty or property, without due process of law, nor of the equal protection of the laws, in violation of § 1 of the 14th Article |[[of Amendment]] to the Constitution of the United States.

'Third. That the court erred in affirming the judgment of conviction, and in refusing to discharge the plaintiff in error from custody.'

The game of policy referred to in the sections of the statute quoted is a lottery scheme carried on, as shown in the testimony, by means of certain numbers procured at the shop or place where the game is played, and consists in an attempt to guess whether one or more of the series held by the player will be included in a list of twelve or at times thirteen of the numbers between one and seventy-eight, which are supposed to be drawn daily at the headquarters of the operators of the game. A person desiring to play the game causes the numbers to be entered on series of slips or manifold sheets. One of these pieces of paper containing the combination played by the person entering the game is kept by him and is known as a policy slip. Drawings are held twice a day, and the holder of the successful combination receives the money which goes to the winner of the game. About 3,500 of these slips were found in the office occupied by the plaintiff in error, which was searched by certain police officers holding a search warrant. The officers took not only the policy slips, but certain other papers, which were received in evidence against the plaintiff in error at the trial, against his objection, for the purpose of identifying certain handwriting of the defendant upon the slips, and also to show that the papers belonged to the defendant, and were in the same custody as the policy slips.

So far as the case presents a Federal question, the court of appeals of the state of New York held (176 N. Y. 351, 68 N. E. 636) that the 4th and 5th Amendments to the Constitution of the United States do not contain limitations upon the power of the states, and proceeded to examine the case in the light of similar provisions in the Constitution and Bill of Rights of that state.

Messrs. L. Laflin Kellogg and Alfred C. Pett e for plaintiff in error.

[Argument of Counsel from pages 589-591 intentionally omitted]

Messrs. Howard S. Gans and William Travers Jerome for defendant in error.

Mr. Justice Day delivered the opinion of the court: