State Ex Rel. Dooley v. Coleman

Ellis, P. J. A. B. Dooley and W. L. Dickson obtained a writ of habeas corpus from one of the Justices of this Court returnable before this Court, and seek their discharge from alleged illegal custody by the Sheriff of Dade County, who in his return to the writ avers that he holds the petitioners under and by virtue of two capiases issued out of the Criminal Court of. Record of Dade County upon an information filed in that Court in March, 1936, charging the petitioners with aiding certain persons in the unlawful having, keeping, exercising and maintaining a certain gaming room and house known as Seminole Lodge in Dade County, at which place betting on horse racing conducted at distant points was carried on and practiced by various and divers persons. The information alleges that the aid rendered by the petitioners was the installation of telephone service by means of which communication over the telephone was arranged between the operators of the gaming house and other persons at different points. It is also alleged in the information that the petitioners knew when they installed the telephone service that the operators and keepers of the gaming place or house were engaged in the occupation described. The information charged certain named persons with the violation of Section 7657 C. G. L., which renounces the offense of having, keeping, exercising or maintaining a gaming table or room, or having implements or appratus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling, or having exclusively, or with others, such a place at which play may be carried on for *205 money at any game whatsoever, whether heretofore prohibited or not. The question presented is whether the petitioners,'! in installing the telephone apparatus and service with -¡the knowledge that it was to be used by the persons charged with maintaining the gaming house for such purpose cohL mitted the offense of aiding or abetting such crime or renJ dered themselves accessories before the fact. a- Section 7110 C. G. L. 1927, provides that: “Whoever aids in the commission of a felony, or is accessory thereto, before the fact, by counseling, hiring,- or otherwise procuring such felony to be committed, shall be punished in-the same manner prescribed for the punishment of • the priiL cipal felon.” ' The petitioners are not charged with keeping or maintaining a gaming house or indirectly or with others doing so, therefore the offense, if any, with which they are charged is a violation of Section 7110, C. G. L., supra. Telephone service is a public utility facilitating the transmission of communications from one person to another at distant points and it may be reasonably said that such service is frequently used for the communication of information, and the transmission of messages in relation to every phase of human activities, including moral and immoral, religious and irreligious, legal and illegal transactions, and it may be said as a matter of general knowledge that whenever a telephone service is established it becomes potentially an aid to the consummation of any plan, scheme or device which the user thereof may have in mind at any time. It is not the service which is thus placed at the disposal of the subscriber but the use which he makes of the service which constitutes the crime. The subscriber simply "has at his hands a device or.instrument which he may use in *206 the transmission of messages or information which may be used by the receiver for unlawful purposes. It is no violation of the criminal code that information may be transmitted by means of the telephone concerning the results of a horse race or the results of any other trial of skill or endurance on the part of man or beast, but it is the use which persons make of that information which constitutes the violation of law. See Commonwealth v. Western Union Tel. Co., 112 Ky. 355, 67 S. W. Rep. 59. The information in this case merely charges the petitioners with supplying information which others may use or may not use for unlawful purposes. They are in nowise charged with participation in the management or operation of the gaming place directly, or indirectly with others, but in the last analysis the information merely changes that the petitioners have' placed in the hands of certain persons the means of communicating information to others at distant points, which information such other persons may use for the purpose of gaming. Section 7110, C. G. L 1927, supra, has no relation to the acts which it is alleged the petitioners committed, and as it does not charge them with participating in the management or control of the gaming house it charges no offense under the laws of the State. It is, therefore, ordered that the petitioners be discharged. So ordered. Whitfield, C. J., and Terrell, Brown and Davis, J. J., concur. Buford, J., dissents.