Commonwealth v. Clancy

Holmes, J. The motion to quash was properly overruled. The complaint charges an offence under the St. of 1885, c. 342, § 1. That statute makes it criminal to be present in a room occupied with apparatus, books, or devices for the purpose of registering bets, or of buying or selling pools, upon the result of a trial of the speed of beasts, etc., engaged in the business of registering bets, or of buying or selling pools upon the result of a trial of the speed of beasts, etc. It is not necessary that the defendant’s business should embrace both registering bets and buying or selling pools. If it embraces one of them, it is within the letter and the intent of the statute. If it embraces more than one, it still may be one business and one offence. Commonwealth v. Ferry, 146 Mass. 203, 208. Commonwealth v. Moody, 143 Mass. 177. As the jurisdiction of the Municipal Court of the city of Boston does not extend to the whole city, it is necessary to allege the place more particularly than otherwise would be sufficient. We are of opinion that the established formula, “within the judicial district of said court,” following the allegations of city, county, and State, is sufficient to give the court jurisdiction. Commonwealth v. Soar, 121 Mass. 375. If it is in a sense a conclusion of law, so are many allegations of pleading. Winsmore v. Creenbanh, Willes, 577, 583. Windram v. French, 151 [133] Mass. 547, 551. Evans, Pl. 138, 139, 143, et seq. Evans, Pl. (2d ed.) 147, 152, et seq. But if the district had had a proper name, and had been designated by it, probably no one ever would have questioned that the allegation was one of fact, and sufficient. 2 Battle’s Dig. 729, pl. 1. In its present form it is an issuable allegation. United States v. Anderson, 17 Blatchf. 238. United States v. Jackalow, 1 Black, 484, 487. It is equivalent to an allegation that it was within some one of the wards mentioned in the Pub. Sts. c. 154, § 42, defining the judicial district in question, and it gives the same information as if couched in that form. People v. Breese, 7 Cowen, 429, 430. Those wards are established by statute. St. 1886, c. 283. St. 1888, c. 437. The other objections insisted upon are disposed of by Commonwealth v. Ferry, 146 Mass. 203. The next question is whether there was any evidence warranting a verdict against the defendant. There can be no doubt that the transactions described by the witnesses purported to be the registering of a bet on the result of certain horse races, or that the room was occupied with apparatus for that purpose. There stood in the room blackboards with names and figures, understood to be names of horses and jockeys by a witness who had been there many times. Another witness copied from the blackboard certain names which he understood to be names of horses, and asked the defendant what he would give him on them. The defendant answered twenty to one. The witness gave the defendant some money and the list of names, and the defendant went into the office, stopped a minute, returned and gave the witness his change, the sum paid by the witness being half a dollar, and then another man in the office gave the witness a ticket with the words “ Combination Play or Pay ” printed at the top, then the words “ 1st Race,” “ 2d Race,” etc., printed in a column, and the names selected by the witness written against certain of the races thus: “ 1st Race, Picknicker “ 7th Race, Tattler etc. At the bottom was written “10,” and then, separated by a line, “50,” which it would not be a very violent conjecture to take as signifying the combination and the sum paid by the witness. If the jury found that this transaction purported to be a bet on a horse race, they were warranted in finding that the defendant understood that it purported to be so, and by the part he took in it admitted and affirmed that [134] there were horses of the names given, and that they were expected to take part in races. Therefore the defendant cannot escape on the ground that the witnesses never had seen the horses of these names. It is plain that the blackboards and printed tickets were kept in the rooms for the purpose for which they were used on this occasion. The defendant had been seen there before repeatedly, marking on the blackboards, it may be inferred for the same purpose. It does not matter that he did not fill out the ticket personally. The testimony showed that he directed it to be filled out. Filling out the ticket was registering a bet, whether the memorandum was more or less intelligible. It is not a question of satisfying a statute like the statute of frauds, but of making a memorandum intended by the parties to be a minute of a bet. The statutory offence was proved if the witnesses were believed. The witness was properly allowed to refresh his memory from memoranda made by him on the night of the transaction. Commonwealth v. Ford, 130 Mass. 64. The refusal of certain requests for rulings calls for little remark. The offence charged is being present in the room engaged in the business of registering bets. Any one taking part in transactions having for their object and result registering bets is engaged in the business, and most plainly so, when, as the jury might have found here, what he does not do in person he commands or procures to be done. The seventh request, therefore, was properly refused, and the additions to the fifth excepted to were correct. The eighth was properly refused. We are told that it is common knowledge that registering bets is an alternative system, which is taking the place of selling pools. But we suppose that selling pools is betting, and that issuing a memorandum of the sale is technically registering a bet, whatever may be the distinction in the language of those engaged in the business. Moreover, if we should assume to know all that was stated at the bar as common knowledge, we should have some difficulty in seeing any ground for the suggestion that the transaction could have been found to be selling a pool. The jury were required to find that the defendant was engaged in the business of registering bets, and registering bets was defined to them in the words of the defendant’s counsel. Exceptions overruled.