¶1(dissenting). This judgment should' be reversed. The testimony showed that gambling was carried on in two houses in Weehawkeu, one situated to the north’ of the defendant’s saloon and the other, called the “ casino,” to the south of it. There is nothing to show whether these houses were run in opposition to each other or whether they were conjointly operated. . The fact that visitors from each also visited the bar kept by the defendant is of no legal significance ; the same inference would attach to the ferry company that transported them. The house to the north of the defendant’s saloon was owned by Mrs. Hoffman, who occupied as her residence the part not used for gambling; the casino was owned by parties living in New York and was occupied solely as a gambling-house. With respect to the house to the *265north, the presumption that its owner, who resided in it, had authority over it and was responsible for its disorderly character, was met by the testimony of that owner, who was the defendant’s mother, that “ her son took care of the property.” The meaning of this expression was for the jury, which might have found that it did not indicate beyond a reasonable doubt that the defendant had authority over the use to which the property should be put or that he ever assumed or exercised such an authority. With respect to the casino no such question could arise, its owners were non-resident; if the defendant was at all responsible for the uses to which this house was put, he was solely so. At the trial testimony was introduced showing that gambling was carried on in both of these houses, and the defendant was found guilty under a charge that made him equally responsible for each.
¶2If there was no testimony that the defendant kept the casino he was unlawfully convicted, for it may well be that the jury found him guilty because' of the disorderly character of that house alone, since it had no resident owner or occupier. There was no evidence whatsoever that connected the defendant with the casino or with the uses to which its owners put it. The argument of counsel that whoever was guilty of maintaining the Hoffman House was ipso faeto guilty of maintaining the casino is unintelligible to me. And, since the Hoffman House by virtue of its resident ownership preseuted a strong ground for exonerating the defendant with respect to it, which did not exist in. the case of the casino, this court cannot say that under the charge the verdict of the jury did not rest wholly, or at least in part, upon the testimony concerning the latter place.
¶3The antiphrasis “non-injurious error” is singularly inapplicable to such a state of facts.
¶4It cannot be said that the defendant did' not promptly object to the introduction of testimony with respect to the casino, or that he did not oppose its submission to the jury by eveiy legal means. The judicial history of the trial contained in the bill of exceptions shows that when the prosecutor *266asked the first question tending to prove the unlawful purposes to which the casino was put, the defendant’s counsel objected, upon the ground of the irrelevancy of the inquiry, and that thereupon the following colloquy and ruling occurred :
¶5“ Mr. Winfield—If I don’t connect him with the room of course it will be stricken out. I called this man because he wanted to get away. [Objection overruled.]
¶6“ To this ruling defendant prays an exception may be allowed, and it is allowed and signed and sealed accordingly.
¶7“ R. S. Hudspeth, J. [l. s.] ”
¶8Notwithstanding the defendant held this bill of exception, at the close of the testimony his counsel made of the court five requests to charge, which, in various forms, required the court to relieve the defendant from the testimony with respect to the casino, the last of which was in these words :
¶9“ Mr. McDermott—I ask the court to charge that the jury cannot convict the defendant unless he had control of the premises or participated in their management.”
¶10To all of these requests the reply of the court was, “ I decline to charge other than as I have already charged.” What the court had already charged was in such form as “adjoining building or buildings,” “various buildings” and “ various premises,” by all of which the defendant’s guilt was put to .the jury as resting indifferently upon either the mother’s house or the casino or both.
¶11The judgment of a criminal court into which this error enters ought not to be affirmed. I therefore vote that the judgment be reversed, in order that the indictment may be tried de novo.
¶12This conclusion renders it unnecessary for me to consider whether this court may affirm the judgment brought before it, by which the plaintiff in error was sentenced to unlawful imprisonment, as being a lawful judgment excepting in that the nature of the imprisonment imposed by it was contrary to law.
¶13*267After the delivery of the above opinions, so far as they relate to the legality of the conviction, the following vote was takeu on the general affirmance of the judgment below:
¶14For affirmance — The Chancellor, Chief Justice, Collins, Dixon, Gummere, Ludlow, Adams, Bogert, Hendrickson, Krueger, Nixon. 11.
¶15For reversal—Garrison, Vredenburgh. 2.
¶16Afterwards, and at the November Term, 1897, a petition was filed on behalf of the plaintiff in error for a reargument upon the question whether the imprisonment of the plaintiff in error should not have been in a penitentiary instead of the state prison.
¶17The vote to reconsider the previous .vote of general affirmance was as follows:
¶18Aye—The Chancellor, Collins, Dixon, Garrison, Gummere, Ludlow, Adams, Bogert, Hendrickson, Krueger, Nixon, Vredenburgh. 12.
¶19Nay—The Chief Justice. 1.
¶20After hearing the reargument Dixon, J., delivered the opinion of the court on the new question as above stated, and thereupon the court ordered and adjudged that the judgment heretofore rendered in this case be reconsidered, and that the designation of the place of imprisonment be stricken from the record as no part of the judgment; that the judgment on the record be reaffirmed, and that the record be remitted to the Court of General Quarter Sessions of Hudson county, to the end that the judgment may be executed according to law.