42 Del. 310 | New York Court of General Session of the Peace | 1942
The indictments in these cases charge that the defendants, “on the Second day of February, in the year of our Lord one thousand nine hundred and forty with force and arms, at New Castle Hundred in the County aforesaid, being then and there the occupant of a certain room over Burris’ Garage, located on Du Pont Boulevard, at Heald Street Cut-Off, at New Castle Hundred in the County and State aforesaid, unlawfully did then and there keep certain paraphernalia, to-wit: run down sheets, paper writing, radio telephone exchange, telephones and adding machines for the purpose of recording bets upon the results of certain contests of speed of beasts, to-wit: Horse racing conducted at a certain race track, the name of which is to the Grand Jurors aforesaid unknown.”
It is contended that this language is so vague, indefinite and uncertain that it violates the Fourteenth Amendment of the Constitution of the United States, Section Seven of Article One of the Constitution of the State of Delaware, and Paragraph 5318 of the Code of 1935.
The Fourteenth Amendment of the Constitution of the United States provides, inter alia, that no state shall deprive any person of life, liberty or property withoüt due process of law.
Paragraph 5318 of the Codé of 1935, provides that “the indictment or information in any criminal case shall contain a plain statement of the elements of the crime, sufficient plainly and fully to inform the defendant of the nature and cause of the accusation against him, in simple and nontechnical language.”
The following language found in Wharton’s Criminal Procedure, 10th Edition, Volume 21, Page 1013, is well adapted to the cases under consideration: “Under statutes prohibiting gaming and the keeping and exhibiting of gaming devices, no further allegations or descriptions of the devices is required in the indictment or information than that which is sufficient to show that the devices charged to have been unlawfully set up, kept or used fall within the prohibition of the statute, by showing that they were or are something tangible and adapted, devised, or designed for the purpose of playing games of chance or skill for money or other things of value. Any table or other device necessarily used in carrying on any of the prohibited games of chance or skill, is a gaming device, and the setting up or using of such tables being prohibited, an indictment or information charging accused with permitting certain tables to be set up and used for gaming purposes in rooms occupied by him, or under his control, charges an offense under the statute”. The present indictments charge the defendants with the unlawful keeping of paraphernalia, to-wit, run down sheets, paper writing, radio telephone exchange, telephones and adding machines for the purpose of recording bets upon the results of certain contests of speed of beasts, to-wit,.horse
The statute which the defendants are charged with having offended against, namely, Section 4063 of the Revised Code of 1935, makes it a misdemeanor for the owner, lessee or occupant of any room, house, building or enclosure, to keep, exhibit, use or employ therein, or permit or allow to be kept, exhibited, used or employed therein; or to be concerned in interest in keeping, exhibiting, using or employing therein, any book or books, device, apparatus or paraphernalia, for the purpose of receiving, recording or registering bets or wagers upon the result of any trial .or contest in the State of Delaware, or elsewhere, of skill, speed or power of endurance of man or beast.
The articles which the defendants are charged in the indictment with having unlawfully kept, to-wit, run down sheets, paper writing, radio telephone exchange, telephones and adding machines, all could be used for the purpose of recording bets and it is the use of such articles which is prohibited by the statute. It is true that the words used in the statute are “book or books, device, apparatus or paraphernalia,” but the articles above referred to, which the indictment charges the defendant with having unlawfully kept, can all be included in the words of the statute. An indictment must describe the offense charged in language sufficiently clear to fully inform the accused of what he is called upon to meet. This is necessary in order to enable him to prepare for trial, and in order that he may be protected from a subsequent prosecution for the same offense. State v. Cook, 6 W. W. Harr. (36 Del.) 298, 175 A. 200; State v. Walls, 4 Penn. 408, 56 A. 111; State v. Morrow, 1 Terry (40 Del.) 363, 10 A. 2d 530.
The particularity with which an offense is required to be described in an indictment does not make it necessary to go that far. In the case of State v. Walls, supra, the indictment charged that the defendant was concerned in interest in disposing of certain lottery policy to one Catharine John
The language used in these instruments describes the offense charged sufficiently clear to inform the defendants what they are called upon to meet, and does not violate the Federal or State Constitutions, or Paragraph 5318 of the Code of 1935.
A number of cases have been cited on behalf of the defendant in support of their position on this point, consisting of, State v. Morrow, 1 Terry (40 Del.) 363, 10 A. 2d 530; State v. Benton, 8 W. W. Harr. (38 Del.) 1, 187 A. 609; State v. Cook, 6 W. W. Harr. (36 Del.) 298, 175 A. 200; State v. Woods, 7 Penn. 499, 77 A. 490; State v. McDowell, 1 Penn. 2, 39 A. 454; State v. Walls, 4 Penn. 408, 56 A. 111; State v. Donovan, 5 Boyce 40, 90 A. 220; Lynam v. Hastings, 7 W. W. Harr. (37 Del.) 450, 185 A. 91; Fontana v. United States, (8 Cir.) 262 F. 283; Jarl v. United States, (8 Cir.) 19 F. 2d 891; People v. Zambounis, 251 N. Y, 94, 167 N. E. 183; and State v. Jeffords, (Mo. Sup.) 64 S. W, 2d 241. These cases all support the general principle of law, that every indictment must set forth the facts which the pleader claims constitute the alleged transgression, sufficiently clear as to inform the defendant of the charge against him, and to enable him to plead a conviction or acquittal in defense of another prosecution for the same offense. They are not helpful in this case, however, as each case turns upon its own particular facts.
The next reason urged for quashing the indictments, is that the statute which the defendants are charged with having offended against, being Volume 40, Lems of Delaware, Chapter 220, Revised Code 1935, Paragraph 4063, violates both the federal and our state constitutions. The manner in which it is claimed said constitutions are not complied with has already been stated in this opinion. In
The statute under consideration was enacted by the Legislature for the purpose of suppressing betting and wagering. It is necessarily broad in its scope. But it would have been very difficult for the Legislators to have described with great particularity every act intended to be covered, or to have included a definition of the words used. It not only includes those who keep, exhibit or use, or are concerned in interest in keeping, exhibiting or using, any book or books, device, apparatus or paraphernalia; but also the owner, lessee or occupant of any room, house or place of any kind, who keeps, exhibits or uses, or permits the keeping, exhibiting or using of such articles, or is concerned in interest in keeping, exhibiting or using such articles for the purpose of receiving, recording or registering bets or wagers upon the result of any trial, or contest, in the State of Delaware, or elsewhere, of skill, speed or power of endurance of man or beast. And it also includes those who record or register, such bets or wagers, or receives, contracts or agrees to receive any money or thing of value for the purpose, or with the intent to bet or wager, for himself or any other person or persons, such money or any thing of value upon the result of such trials or contests.
In State v. Scott, 80 Conn. 317, 68 A. 258, 259, the Court used the following language, which shows what the attitude of the Courts has been in construing statutes dealing with offenses of this character; “For more than 200 years we have treated wagering as against public policy, and playing at the games which promote wagering has been illegal. In the legislation adopted for the suppression of gaming we have uniformly treated those who promote the offense, either by furnishing a place convenient for its commission or any implement used in its commission, as more dangerous to so
There can be no doubt that the words “book or books, device, apparatus or paraphernalia,” have a very broad meaning. The statute was not designed for the purpose of punishing the mere possession of such articles, but only when they are kept, exhibited or used “for the purpose of receiving, recording, or registering bets or wagers.”
The question of intention is not directly raised by the statute. But it does clearly appear that the law was intended for the . purpose of preventing the keeping, exhibiting or using, of any “book or books, device, apparatus or paraphernalia, for the purpose of receiving, recording, or registering bets or wagers.”
When the statute is given this reasonable interpretation, the words “book or books, device, apparatus or paraphernalia” are not vague and uncertain, and said statute does not appear to be arbitrary and unreasonable.
In State v. Scott, 80 Conn. 317, 68 A. 258; People v. Wilson, City Ct. Rochester, 4 N. Y. S. 2d 592; People v. Ryan, 15 Cal. 2d 492, 102 P. 2d 320, 321; and Ex parte Thompson, 59 Ohl. Cr. 410, 60 P. 2d 634; convictions were obtained under statutes worded very much like the statute involved in this case. These convictions were upheld by the Courts, but the question of the constitutionality of the statute was only raised in one case. In State v. Scott, supra, the statute upon which the charge was based provided, that every person who owned, possessed or maintained, or who assisted in keeping, maintaining or occupying any building, room or office, with apparatus, books, boards or devices for the purpose of making, recording or registering bets or wagers, or of buying" or selling pools, upon the result of any trial or contest of skill, speed or endurance of man or beast, should be subject
We agree with the rule of law laid down in the cases of Connolly v. General Const. Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322; People v. O’Gorman, 274 N. Y. 284, 8 N. E. 2d 862, 110 A. L. R. 1231 and Lanzetta v. State of New Jersey, 306 U. S. 451, 59 S. Ct. 618, 83 L. Ed. 888. That rulé is, that the terms of a penal statute, especially one which creates a new offense, must be so clear that those who are
What is termed as the law meaning of the word “paraphernalia” is not helpful in the case. But the definition found in Funk and Wagnall’s New Standard Dictionary, “miscellaneous articles, belongings” we think expresses very well the generally accepted meaning of the word. It should be remembered that the word is not the only word used in the statute describing the offense desired to be prohibited. The language used being, “whoever keeps exhibits or uses, or is concerned in interest in keeping, exhibiting or using, any book or books, device, apparatus or paraphernalia for the purpose of receiving, recording or registering bets or wagers.”
In order to understand these words it is not necessary to indulge in any presumptions, as the Court seemed to think was necessary in the case of State v. Grimmett, 33 Idaho 203, 193 P. 380. Nor does the statute make a crime of a perfectly innocent act, as in the cases of State v. Burns, 53 Idaho 418, 23 P. 2d 731, and Proctor v. State, 15 Okl. Cr. 338,176 P. 771.
Certainly the average person who reads the statute in question, will understand that the purpose which the Legislature" wanted to accomplish was the suppression of gambling. ' Such a person will also be able to understand what acts are prohibited by the statute, including being concerned in interest in keeping, exhibiting, using or employing, in any room, house, building, enclosure, or place of any kind, any book or books, device, apparatus or paraphernalia for the purpose of receiving, recording or registering bets or wagers upon the result of any trial or contest, of skill, speed or power of endurance of man or beast.
Attention is called to the fact that the statute in question is an amendatory statute, the original act dealing with the subject of gambling, being Chapter Forty-one of Volume Twenty of the Laws of Delaware. The title to this original act reads “An Act for the Suppression of Betting and Wagering upon Contests of Skill or Speed.” No contention is made that the title of this Act violates the constitutional provision quoted above. The title to the act now before the Court for consideration, being Chapter two hundred and twenty of Volume forty of the Laws of Delaware, amending paragraph 3572, section 137 of chapter 100 of the Revised Code of 1915, is in the following language: “An Act to amend the first paragraph of 3572. Sec. 137 of Chapter 100 of the Revised Code of 1915, relating to betting and wagering upon contests of skill or speed.” The purpose which the Legislature desired to accomplish by enacting the original law, was the discouragement and prevention of betting and wagering upon the result of any trial.or contest, of skill, speed or power of endurance of man or beast. The amendatory act was passed for this same general purpose. In fact, there is no material difference between the provisions of the original Act and those of the amendatory act.
The actual difference being, that the last act made an exception of bets and wagers made within the enclosure of any race meeting licensed by the Delaware Racing Commission; and increased the penalties by providing for fine or imprisonment, or both, while the original act only provided for imprisonment in default of the payment of the fine im
This provision of the constitution has been construed by our own Court on numerous occasions and it is needless to look elsewhere for authority. The decisions are all to the effect that the purpose of such a provision is, “First,
In State v. Grier, supra. [4 Boyce 322, 88 A. 586], the Court said, “The authorities all agree that if the provisions of the act relate directly or indirectly to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, they will not be held unconstitutional, as in violation of the provision under consideration. It is not violated by any act having various details properly pertinent and germane to one general subject.”
Certainly the penalty included in a statute to suppress betting and wagering, which is the subject expressed in the title, is directly connected with said subject and cannot be considered as foreign to it. No ingenious reasoning is required for the average person to understand, that an act of the legislature relating to betting and wagering upon contests of skill or speed, included a penalty for a violation of its provisions.
Our Court has consistently held that the title to an act of the legislature does not have to be an index to the entire act, but it must at least give a reasonable intimation of the subject dealt with. In re Cypress Farms Ditch, 7 W. W. Harr. (37 Del) 71.
Attention is called on behalf of the defendant, to the fact that the statute in describing the offense for which the said defendants are indicted, uses the words, “* * * the result of any trial, or contest, * * * of * * * speed * * * of * * * beast * * but that the indictment uses the words, “the results of certain contests of speed of beasts.” From this it is argued that the indictment is fatally defective, because it uses the word “contests,” which is plural, while in the statute the word “contest,” which is singular, is used.
In order to reach this conclusion one must fail to recognize the fact that the words of the statute are, “any trial, ox-contest, * * * of skill, speed or power.” This clearly meaxxs more than one contest and gives to the language a plural meaning, notwithstanding the fact that the words “contest” and “beast” are used in the singular.
To agree with the view of the defendants it would be íxecessary to hold that the statute was intended to apply to one single contest and no other. This we are unable to do.
We also think that the contention of the defendants on this point is answered by the rules of Construction of Statutes as fouxxd in the third paragraph of Section one of Chapter one of the Code of 1935. These rules provide, “Every word importing the singular number only, may extend to and embrace the plural number; and every word in porting the
Can there be any doubt that this rule was intended to embrace a case of this character?
The motion to quash is denied.