46 Del. 120 | New York Court of General Session of the Peace | 1951
When the raiding party entered the Episcopo premises on May 9, an officer immediately picked up the telephone and heard a message coming over the wire. On the witness stand, this officer was asked to state the contents of that message. Defense counsel objected because of Code Section 5232 reading in part as follows: “5232. Sec. 52. Injury to Telegraph or Telephone Prop
The State contended that this statute was not intended to apply to police officers and, in any event, should apply only to messages heard as a result of wire tapping and not to one merely intercepted as in this case. The objection was sustained since Section 5232 refers to any person or persons except employees of a carrier, making it a misdemeanor to testify concerning any message intended for another. This interpretation is fortified by a comparison with Code Section 5230, which shuts the mouths of a carrier’s employees, but which expressly permits them to produce a message in answer to lawful process. See Nardone v. United States, 302 U. S. 379,58 S. Ct. 275,82 L. Ed. 314. The foregoing ruling is based, not upon any constitutional consideration, but upon the express wording of the statute.
At the end of the State’s case, defendant’s counsel moved for a verdict of not guilty on the ground that a prima facie case had not been made out. In the course of the argument, there was some discussion as to the meaning of the term “concerned in interest”. There is no necessity for defining that expression here, for, under any definition which has been suggested, certain statements or admissions made by Tollin to the police officers immediately after the raid would justify the conclusion that he was “concerned in interest” in keeping the paraphernalia listed in the indictment, even though it was technically owned by, or leased to, the corporation. The problem presented is, rather, whether that equipment was kept “for the purpose of receiving and recording bets upon the result of a contest of speed of beasts”. The equipment specified in the information was all located at 839 Tatnall Street; it was
The State suggested that a distinction should be drawn between public utilities and private persons, citing Commonwealth v. Ambrosius Industries, Inc., 312 Ky. 95, 226 S. W. 2d 537.1 can see no reason for any such distinction.
The writer has previously pointed out that in Delaware a criminal statute is to be strictly construed against the State. State v. Johnson, 4 Terry 294, 46 A. 2d 641. No exception to this rule exists in favor of gambling laws. Following the majority rule, therefore, the conclusion is that the mere dissemination of racing information, with nothing more, is not a violation of the Act; only by a strained interpretation could the existing law be said to pro
The State did undertake to show that Tollin was directly connected with bookmaking activities, and was using the paraphernalia in furtherance thereof. The evidence failed to meet the standard required in criminal cases. As a trier of fact, I was not convinced that the admissible evidence was sufficient to prove the defendant’s guilt beyond a reasonable doubt. I therefore saw no occasion to require defendant to present any testimony and a verdict was entered in his favor.
It is perhaps proper to mention one phase of the testimony on the last mentioned point. The State attempted to show that the fees mentioned in the written contracts were wholly fictitious and that the amounts actually paid to defendant or to Delaware varied in proportion to the amount of booking done by a customer each week. Had this been demonstrated by competent evidence, I should have had no hesitancy in inferring a definite connection of the defendant with bookmaking activities, and would have required him to go forward with his defense. In order to establish the point, the State called to the stand certain individuals who were asked several questions about their relations with Tollin and Delaware. With the exception of one (who said that he had never paid niore than the stipulated price), all denied having ever purchased the news service or having had any transactions of any sort with either the defendant or the corporation. In a few instances, counsel pleaded surprise and propounded questions about recent conversations between the witnesses and the prosecuting attorney in the presence of some police officers. Those