The defendant was convicted on indictment No. 42,581 charging that on or about March 13, 1967, at Quincy, he “was concerned in the setting up of a lottery for money or other property of value,” and indictment No. 42,582 charging that on or about March 13, 1967, he “was found in a building known as Steel Mill of General Dynamics Corporation, in said Quincy, with apparatus for registering bets upon the result of a trial of speed of certain beasts, to wit, horses.” G. L. c. 271, §§ 7 and 17. The indictments were tried together. The case is now before us *672 on the defendant’s exceptions to the denial of a motion to suppress certain evidence and to the admission of evidence on events of January 30 and 31 and February 2, 1967.
The pleadings and evidence material to the issues before us are stated in the bill of exceptions as follows: From January to March, 1967, State police officers Peter A. Latsey and Francis G. Lounsbury were working on a special assignment to investigate illegal gaming within the Commonwealth. They obtained employment at the General Dynamics shipyard at Quincy. Dressed in working clothes and working shifts as did all other employees at the plant, they engaged in undercover activity. On January 30, 1967, Officer Lounsbury asked the defendant, an employee at the plant, if he would take a bet on some horses in a “daily double” and on number “451 six ways.” The defendant assented and accepted from the officer the sum of $1 for the horse bet and $1.50 for the number bet. He wrote the number and the “daily double” bet on a pad which he took from his breast pocket. On January 31, and February 2, 1967, Officer Lounsbury again placed two similar bets with the defendant in the building known as the Steel Mill of the General Dynamics Shipyard. The January 31 bet was made by giving the defendant a piece of paper on which Officer Latsey had written the names of two horses. Officer Latsey witnessed the transactions on both occasions.
On March 10, 1967, the two officers went to the District Court of East Norfolk at Quincy where Officer Lounsbury signed a complaint charging the defendant with “being found in a building known as Steel Mill of General Dynamics Corporation, with apparatus for registering bets upon the result of a trial of speed of certain beasts, to wit: horses, on the second day of February, 1967.” The bill of exceptions contains no other language of the complaint or any evidence of the procedures leading to its issuance. The court then issued a warrant for the arrest “of John Doe, also known as ‘Baldi’ and Baldassini a white male, between 50 and 55 yrs. of age, 5' 8”, 170-180 pounds, and dark hair, of said Quincy in said County of Norfolk, if he be found within your pre *673 cinct, to answer to the Commonwealth, on complaint of Francis G. Lounsbury of Boston, this day made on 'oath, before said Court for . . . [a crime described in the Same language as that quoted above from the complaint of March 10, 19673.” The officers executed this warrant by arresting the defendant, Louis Baldassini, on March 13, 1967, at the General Dynamics Corporation plant.
Upon his arrest, the defendant was searched. Currency in the sum of $460.60, six slips of paper with writings or writings and numerals thereon, and a pad of paper approximately three inches by six inches in size with several sheets of carbon paper, were taken from him. These items are the subject of the motion to suppress, and except for the currency they will be referred to collectively as the “gaming apparatus.” G. L. c. 271, § 17.
Commonwealth
v.
Demogenes,
On June 19, 1967, the defendant seasonably filed a motion in the Superior Court alleging that the warrant for his arrest issued by the District Court on March 10, 1967, was “void and illegal” and asking that all items taken from his person at the time of his arrest pursuant to that warrant be suppressed. In an affidavit filed with the motion, the defendant quoted the part of the warrant which describes the person to be arrested and then added that “said warrant did not indicate clearly on whom it was to be served by stating his occupation, the place of his residence, personal peculiarities by which he could be identified, and was defective and void on its face,” and that “the officer serving the warrant in legal effect acted without a warrant and was *674 a trespasser.” No other ground or basis is stated for the motion to suppress.
The alleged insufficiency of the warrant’s description of the person to be arrested has not been argued by the defendant in his brief or orally before this court, although it was the sole ground of the motion to suppress filed on June 19, 1967. Instead the defendant’s brief argues that the “warrant is invalid since it was not based upon probable cause” and that “[therefore the arrest was illegal and the items taken pursuant to the arrest should have been suppressed.” The defendant has given no explanation in his brief or oral argument for this difference between the ground for the motion to suppress filed on June 19,1967, and quoted in the bill of exceptions, and this other ground now urged before this court. We might avoid passing on either contention by holding (a) that the ground stated in the record has been waived by the failure of the defendant to argue it in his brief, see S. J. C. Rule 1:13,
1. We assume for the purpose of this discussion that the complaint of March 10, 1967, and the warrant issued pursuant thereto employ the same language in describing the defendant and the person to be arrested as “John Doe, also known as ‘Baldi’ and Baldassini a white male, between 50 and 55 yrs. of age, 5' 8”, 170-180 pounds, and dark hair, of said Quincy.” Such a description complies with the requirements of G. L. c. 277, § 19, which provides in part: “If the name of an accused person is unknown to the grand jury, he may be described by a fictitious name or by any other practicable description, with an allegation that his real name is unknown.” In
Commonwealth
v.
Gedzium,
2. The argument that the arrest warrant for the offence of February 2, 1967, was invalid because “not based upon probable cause” depends on facts which the defendant did not incorporate in his bill of exceptions. On the record before us, we refuse to conclude that the complaint was issued without the establishment of probable cause supported by oath or affirmation as required by art. 14 of the Declaration of Rights of the Massachusetts Constitution and by G. L. c. 276, § 22.
1
The presumption of regularity must prevail over a deficient or incomplete record for whose preparation the defendant is responsible. In support of his argument that an arrest warrant must be based on “probable cause” the defendant relies principally on the opinion in
Giordenello
v.
United States,
We turn now to the defendant’s remaining exceptions relating to the admission of evidence at the trial on the indictments alleging crimes on March 13, 1967. Over the general objections and exceptions of the defendant, the trial judge permitted officers Latsey and Lounsbury to testify to the events of January 30, January 31, and February 2, 1967, described earlier in this opinion. The defendant also made general motions to strike this testimony, and excepted to the denial of such motions.
The defendant contends that such testimony was inadmissible under the well established rule that evidence of independent past crimes unconnected with the crimes for
*678
which the defendant is on trial may not be used to show his commission of the crimes presently charged.
Commonwealth
v.
Stone,
In this case are present the same elements of relevant background, intentional conduct, and general purpose and course of operations apparent from the defendant’s conduct on the date of the crimes alleged and the earlier dates involved in the disputed testimony. The earlier acts of the defendant at his place of employment tend to prove that the items found on him at the time of his arrest at the same place were in fact gaming apparatus and not just notes con
*679
taining innocent and meaningless words and figures. The lapse of about forty days in this case instead of the ten days in the
Butynski
case does not make the testimony of the defendant’s earlier actions any less relevant or probative on the issues involved. The question of remoteness is a matter largely within the sound discretion of the trial judge, and there is nothing to indicate an abuse of discretion in this regard. 64 A. L. R. 2d, at 844. Since the disputed testimony was admissible at least as to indictment No. 42,581, if not as to both, the defendant’s general objections thereto were properly overruled, and his general motions to strike the testimony were properly denied.
Commonwealth
v. Connolly,
The defendant seems to argue further that the admission of evidence concerning the events of February 2, 1967, was in effect subjecting him to double jeopardy since the complaint charging him with an offence on that date had been dismissed by the District Court in his absence and at the time of the trial, such time had elapsed that he could not have been charged with those acts. Even if, as the defendant contends, he had acquired a constitutional guaranty barring further prosecution on that charge, an assertion upon which we voice no opinion, that right does not affect the admissibility of evidence of the defendant’s acts of February 2, 1967, as bearing on his guilt under indictment No. 42,581.
The defendant moved to strike out the testimony of Officer Lounsbury on the ground of entrapment. The motion was denied, and he excepted thereto. However, he did not argue this point in his brief, and it is therefore treated as waived.
Exceptions overruled.
Notes
“[Ulpon complaint made to . . . [any justice of the Supreme Judicial, Superior or District Courts] that a crime has been committed, he shall examine on oath the complainant and any witnesses produced by him, reduce the complaint to writing, and cause it to be subscribed by the complainant, and, if it appears that a crime has been committed, shall, except as otherwise provided, issue a warrant, reciting the substance of the accusation and requiring the officer to whom it is directed forthwith to arrest the accused and to take him before a court of the county to be dealt with according to law, and to summon such witnesses as shall be therein named to appear and give evidence on the examination or trial.”
It should be noted that nothing stated herein is intended to apply to the documentation of facts constituting probable cause for arrest warrants issued pursuant to indictments which follow a determination of probable cause by a grand jury.
The pertinent parts of these rules in effect at the time of that decision read as follows:
3. “The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a commissioner or other officer empowered to commit persons charged with offenses against the United States.”
4. “ (a) . . . If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it.”
Since then, Rule 4 (a) has been amended to permit arrest warrants to be based on affidavits as well as complaints.
The following statistics on criminal cases (not including parking tickets terminated by “non-criminal disposition” under G. L. c. 90, § 20Á) begun in the District Courts of this Commonwealth and in the Municipal Court of the City of Boston for each of the years ending June 30,1964, through June 30, 1968, illustrate the magnitude of this problem:
1864 1966 1966 1967 1968
District Courts . . 336,558 381,038 429,651 480,383 514,840
Municipal Court . 70,356 82,032 124,602 214,959 196,498
Total for Year . . 406,914 463,070 554,253 695,342 711,338
(Source: Annual Reports by Executive Secretary to Supreme Judicial Court).