339 Mass. 151 | Mass. | 1959
The defendant was charged by complaint with being concerned on January 7, 1957, with setting up and promoting a lottery for money in violation of G. L. c. 271, § 7. He was found guilty in the District Court. After trial on appeal in the Superior Court, the jury returned a verdict of guilty. The only exceptions argued were those based upon the admission of certain testimony.
1. The Commonwealth, subject to the defendant’s exception, was permitted to introduce testimony that, on December 29, 1956, about ten days prior to the date (January 7,
The evidence of the events on December 29 tended “to show that the defendant . . . had entered into a general scheme” to conduct a lottery in the tavern “substantially by the same means, as appears in the present case,” with respect to the events of January 7. The evidence “is admissible to show the intent and purpose with which . . . [[the defendant] acted and that the acts charged were part of a . . . scheme.” Commonwealth v. Corcoran, 252 Mass. 465, 478. See Commonwealth v. Robinson, 146 Mass. 571, 577; Commonwealth v. McHugh, 316 Mass. 15, 23. See also annotations, 15 A. L. R. 2d 1080; 40 A. L. R. 2d 817. The Commonwealth was contending that the defendant made cash pay-offs on the number of free games won and that the playing of the machine on such a basis constituted a lottery. Commonwealth v. Macomber, 333 Mass. 298, 300. The consistency of the defendant’s conduct on two occasions (the earlier within a few days of the later) tended to show (a) relevant background, (b) that the payment on January 7 was intentional, not accidental, and (c) that it was part of a general purpose and course of operations having an intent and character violative of § 7. Commonwealth v. Ferry, 146 Mass. 203, 209. See Commonwealth v. Farmer, 218 Mass. 507, 512-513; Commonwealth v. Patalano, 254 Mass. 69, 73; Wigmore, Evidence (3d ed.) §§ 300-369, esp. § 367. This was not an instance of introduction of inadmissible
2. Officer Erdeski was permitted, subject to the defendant’s exception, to demonstrate on the very machine used on January 7 (which' was similar to but not the same machine used on December 29) how the machine was played. The legs of the machine were in different positions in court from their positions on January 7. It was within the discretion of the trial judge to determine whether the demonstration would be fair and informative, and whether the circumstances in court were sufficiently similar to those at the time of the offence to make the demonstration relevant. Commonwealth v. Noxon, 319 Mass. 495, 541-542, and cases cited. See Commonwealth v. Lake, 317 Mass. 264, 266-267.
3. The same police officer was permitted, subject to the defendant’s exception, to testify that the ball in the machine could not be controlled “after it comes out of the alley unless you push the machine, and if you push the machine, the machine will tilt and the automatic electrical control goes off” and (in various forms of testimony) that winning “free games” was “[l]uck; and a matter of chance.” Similar testimony was given by the other officer. The machine was in court. It had electrical controls. It was played with five balls. On this record, we cannot say that it was not a sufficiently complicated machine to require explanation to the jury and to be the subject of expert testimony as a matter not of general and common knowledge. Although simple forms of such devices are familiar playthings for children, it was within the trial judge’s discretion to admit expert testimony explaining more elaborate and complex devices of this type. No objection appears to have been made on the ground that the officers were not
Exceptions overruled.