State v. Falk

66 Conn. 250 | Conn. | 1895

Andrews, C. J.

The defendant was prosecuted for violating the provisions of chapter LXVIII. of the Public Acts of 1893. The information contained three counts. He was found guilty on the first and third, and not guilty on the second. There was a motion in arrest of judgment which was overruled. One fine only was imposed.

The defendant appealed to this court and has assigned numerous reasons for his appeal. If either the first or third count is a good one, then the complaint is sufficient to sustain the verdict and the judgment. We think the first count is good. It does not charge two offenses. It charges the keeping of only one place. True, it charges that the place was kept with apparatus, etc., for the purpose of recording and registering bets and wagers, and (for the purpose) of buying and selling pools. But as the keeping of a place for either of these purposes is forbidden by the statute, and as these purposes may both exist at the same time, with reference to the same room or place, and so become each a part in one continuous act, charging them both in connection with the keeping of the place, is not duplicity. It does not charge two offenses. It points out two purposes of the keeping of one place ; and proof of either purpose, or of both of them, shows that one crime has been committed. State v. Bosworth, 54 Conn., 1; State v. Burns, 44 id., 149; Barnes v. The State, 20 id., 232; Francisco v. The State, 4 Zab. (N. J.), 30; 1 Bishop’s Criminal Procedure, § 348.

The third count charges that the defendant “was concerned in the business of transmitting money out of this State, by telegraph or other means * * * there to be bet and placed on certain horses and horse races * * * against the peace and contrary to the form of the statute in such case provided.” This language follows quite closely the words of the part of the statute on which the prosecution is based. This part of the statute seems to contemplate a person who is concerned in the business of transmitting the money of other persons than himself, out of this State, there to be bet. And the element in the business which makes it criminal by the statute is, that the money transmitted out of the State “ is there to be bet or placed on a horse race or other game.” The business of transmitting money out of this State is not itself unlawful, and that is not forbidden except when the transmitting is attended with the specified purpose. The third count undertakes to charge the defendant with being concerned with this business, and it is obviously defective unless it charges him with that ingredient of the business which alone makes it unlawful. In' other words, the count is defective unless it charges that the defendant had knowledge of, or participated in, the unlawful purpose for which the money was transmitted out of the State. It seems to us that this count does not contain any such charge, and is therefore not a good count. Bearing in mind that it is the money of some other persons winch the defendant is in the business of transmitting out of the State, there is nothing in the count to show that he had any knowledge of, or that he took any part in, the unlawful purpose for which the money was so transmitted. In ordinary cases it is sufficient to use the words of the statute in informations charging a statutory offense. But there are instances to the contrary. The language of a statute creating an offense may be so general, that an information upon it which used no greater particularity than the words in the statute, would not charge any offense at all, or would not charge one with such sufficient certainty as the law requires. State v. Costello, 62 Conn., 128; 1 Bishop’s Criminal Procedure, § 612.

During the trial of the cause, upon the cross-examination of a witness called by the State, certain questions were asked which, on objection by the State, were excluded by the court. As to some of these questions the court finds distinctly that the witness had not in chief testified to anything which made them proper cross-examining questions. As there is no finding of the testimony given in chief by the witness, we cannot say that the ruling as to any of these questions was not correct. If we were at liberty to assume that the witness of whom these questions were asked, was the witness who testified to the arrangement of the room or office kept by the defendant, the furniture and the apparatus there, and to the method in which the business there was carried on, we should be of the opinion that the questions were properly excluded. They were not properly cross-examining questions, but an attempt to have the witness put a construction upon the facts to which he had testified. It seems to have been conceded that the defendant kept the room. The State claimed that from the arrangement of the room, the partitions partly of wood and partly of glass, with apertures having designations over them, the furniture, the apparatus and the method in which the business was there carried on, all of which had been fully detailed to the jury, it was kept for the purpose named in the first count of the information, and asked the jury so to decide. Whether or not these facts in evidence proved the ultimate fact which the State claimed, was for the jury to say. The objection to these questions was that they asked the witness to do what it was for the jury to do.

The defendant offered in evidence the charter of the Electric News and Money Transfer Company, a corporation organized under the laws of New Jersey, and made several claims therefrom. On objection this was ruled out. We are unable to see how the defendant was prejudiced by this ruling. The purpose for which the admission was claimed was irrelevant. If the business in which the defendant was concerned at the room kept by him at Bridgeport, was in fact a business which is forbidden by the statute of this State, it would not be made lawful because it was a business authorized to be done in New Jersey by a charter of that State. And if the business was unlawful, it would not benefit the defendant to show that he was concerned in it as a corpora-tor, or an agent, of a foreign corporation. The jury was to determine, on the business in which the defendant was concerned at the office kept by him in Bridgeport, whether it was lawful or not by the statute of this State, and to determine that question upon the evidence of what was actually done there, and not on the provision of any charter. Even if this were otherwise the defendant has suffered nothing. Before the charter was offered in evidence, he had testified to all the material things which he claimed would be proved by the charter, and the State offered no witnesses to contradict him. Indeed counsel in their requests, and the court in its instruction to the jury, assume the facts in this behalf to be as claimed by the defendant.

As to several of the assignments of error, there is nothing in the finding to show that the questions were made on the trial. Most of the others have become immaterial by reason of the conclusion reached upon the third count of the complaint. Those remaining we have considered and we find no error.

In this opinion the other judges concurred.