Commonwealth v. Clancy

Complaint — Municipal Court of Boston — Jurisdiction — Registering Bets — Pool Selling — Evidence. It is not necessary to a conviction on a complaint under the St. of 1885, c. 342, § 1, 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 statute; if it embraces more than one, it still may be one business and' one offence. A complaint addressed to the Municipal Court of the city of Boston charging the defendant, after the allegations of city, county, and State, with committing an oBence “ within the judicial district of said court,” is sufficient as to place to give the court jurisdiction. A complaint alleging that the defendant, in a certain room “ occupied with apparatus, books, and devices . . . for the purpose of registering bets and selling pools upon the results of trials and contests of skill, speed, and endurance of men and beasts, was present then and there in said room engaged in the business and employment of registering bets upon the result of a certain trial of speed of beasts, to wit, upon the result of the racing of certain horses whose speed was to be tried by racing,” charges an offence within the St. of 1885, c. 342, § 1. On a complaint under the St. of 1885, c. 342, § 1, there was evidence that in the room in question, which contained an office, stood a blackboard with names and figures thereon, understood by a witness who had been there many times to be the names of horses and jockeys; that another witness copied from the blackboard certain names understood by him to be those of horses, and asked the defendant, who had been seen there repeatedly before marking on the blackboard, what he would give him on them, and the defendant answered twenty to one; that the witness then 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 a ticket with the words “ Combination Play or Pay ” printed at the top, and with “ 1st Race,” “ 2d Race,” etc., printed in a column underneath, and the names selected by the witness written against certain of the races thus: “ 1st Race, Picknicker “7th Race, Tattler etc., and at the bottom of the ticket was written “ 10/50.” Held, that the evidence was sufficient to warrant a conviction. A witness who testifies to a transaction as having taken place on a certain day may properly be allowed to refresh his recollection from memoranda made by him respecting the transaction on the night of that day. At the trial of a complaint on the St. of 1885, c. 342, § 1, for being present in a room engaged in the business of registering bets, the presiding judge, in giving an instruction requested by the defendant, added that the defendant was as liable for what he directed others to do illegally in his presence as if he did it himself, and refused to instruct them, as the defendant requested, that if the defendant made a bet and another registered it, or. if the jury found that the transaction in evidence was selling pools, the defendant was not liable. Held, that the defendant had no ground of exception.

Complaint, in two counts, to the Municipal Court of the city of Boston. The second count differed from the first count only in respect to the time alleged. The first count was as follows: “ To the Justices of the Municipal Court of the city of Boston, holden at said Boston for the transaction of criminal business, within the county of Suffolk: Henry Chase of the city of Boston in the county of Suffolk, in behalf of the Commonwealth of Massachusetts, on oath complains that Patrick Clancy of said Boston, on the twenty-fifth day of June in the year of our Lord one thousand eight hundred and ninety, at Boston aforesaid, and within the judicial district of said court, with force and arms, in a certain room situate in said city and district, and then and there occupied with apparatus, books, and devices, a further description of said apparatus, books, and devices being to said Chase unknown, for the purpose of registering bets and selling pools upon the results of trials and contests of skill, speed, and endurance of men and beasts, was present then and there in said room engaged in the business and employment of registering bets upon the result of a certain trial of speed of beasts, to wit, upon the result of the racing of certain horses whose speed was to be tried by racing.” In the Superior Court, on appeal, before the jury were impanelled, the defendant renewed a motion filed by him in the Municipal Court to quash the complaint for the following reasons, which alone are material: “ 1. Ho offence at common law or under the statute is charged. ... 3. That part of the city of Boston in which the rooms charged are situated is not set out or described or located by description, the jurisdiction being merely asserted in each count. 4. The selling of pools and registering of bets is not charged in either count as the business employment. 5. Hor the name of the keeper or occupant of the rooms set out or charged, nor charged as being unknown to the complainant, nor the time, place, or name when, where, or by whom the speed and endurance of the horses and beasts is to be tried and contested, set out or charged as unknown.” Barher, J. overruled the motion, and the defendant excepted. The defendant was then tried, and one Randall, a witness for the government, testified that on June 25, 1890, he visited the room in question and there saw the defendant; that the room contained blackboards and two offices, and the defendant was standing on a platform in front of the blackboards; that he stood in front of the blackboards a few minutes, and wrote the names Picknicker, Tenney, Beck, and Tattler on a paper, and asked the defendant what he would give him on them; that the defendant said, “I will give you twenty to one”; that he gave the defendant some money, which the defendant took with the paper into one of the offices, and came back with the change in front of the blackboard, and gave it to him, and he then went to the office and another man gave him a ticket; that he had been in the room ten or twelve times, some of the times before June 25; that one Lent was with him that day; that aside from the defendant’s taking this money and- giving him change, he saw the defendant marking at the blackboard, — what he did not now know; and that the names written on the paper and given by him to the defendant were names of horses so far as he knew. On cross-examination, Randall testified that before he spoke to the defendant he had the names of horses written on a paper, and handed that paper to the defendant. In answer to the question, also put to him on cross-examination, “ You wrote these four names on a ticket without knowing of your own knowledge whether they were the names of horses, yachts, engines, or anything else, handed it to him, and said, ‘How much will you give me on this ? ’ ” Randall replied, “ I cannot say positively that they were names of horses, but understood they were names of horses.” He also testified that he had been in there prior to June 25, and had got acquainted with Clancy, and had never seen him sell or offer to sell a ticket that he remembered of; that at the times when he was in there Clancy was engaged in marking on the blackboard something that was called out; that he gave him $2.00 and got $1.50 back; that Clancy stopped in the office a minute or so before giving him the change, and brought the change back; that when Clancy came out he then went into the office, and got the ticket, not from the defendant, but from some one else; that he saw no one else give any money to the defendant, or give money to make a stake against witness; that he heard no one offer to bet with him; that he saw no money put up; that nobody stated to him the terms of any bet; that no one told him that Pick-nicker or Tattler was running a race, or name other horses running with them ; and that he saw no person make any record in writing of any race between horses or anything that day. Lent was called as a witness for the government, and testified that he went with Randall on June 25, and saw Randall write on paper and hand the paper to the defendant, and ask what he would give, and saw him take the paper and money into a little office and return with the change, which he gave to Randall ; that in a few moments Randall went to the ticket-hole in the office; that while Randall and the defendant were talking about change, he saw a man in the office writing on the ticket which Randall took; that he saw columns of names and figures on the blackboard which he took to be horses and jockeys’ names; and that he had been there at other times. The ticket given by the defendant to Randall was in evidence. It was printed on pasteboard, and was about two and a half inches wide by four inches long. At' the middle of the top, printed in plain type, were the figures 326, beneath which in one line was the letter T, followed by the word “ Combination,” and in a second line the words “ Play or Pay.” Under these and to the left was printed in a column, “ 1st Race,” “ 2d Race,” etc., up to “ 8th Race,” and filling the spaces opposite respectively, “ 1st Race,” “3d Race,” “5th Race,” and “ 7th Race,” were written with a lead pencil the names “Pick-nicker “ Beck -J-,” “ Tenney J,” “ Tattler At the bottom appeared the figures “ 10/50,” written with a lead pencil. Randall was allowed to refresh his recollection from memoranda made mostly from memory by him on the night of June 25, after the transaction; and the defendant excepted. The defendant requested the judge to rule that there was no evidence upon which the jury could find the defendant guilty of the offence charged; the judge refused so to rule, and instructed the jury that there was evidence for them to consider upon the complaint; and the defendant excepted. The defendant also requested the judge to give, among others, the following instructions to the jury: “5. The evidence must show beyond a reasonable doubt that a registration of a bet was made by the defendant, or the jury should acquit; that the defendant was engaged as a business and employment in the registering of bets, of which the one shown in evidence is one of a series, or the jury should acquit. ... 7. If the jury find that the defendant sold the ticket and made any bet, and the same was not recorded or registered by the defendant, but by some other person, the jury should acquit the defendant. 8. If the jury find that the transaction in evidence was selling pools, they should acquit.” The judge refused to give the seventh and eighth instructions requested, but gave the fifth, adding thereto: “ Of course you have already learned that where illegal business is carried on, where more than one takes part, whatever one man does by directing others or instructing others in his presence, this is something for which he is as liable as if he did it himself.” The jury returned a verdict of guilty; and the defendant alleged exceptions.