Com. v. Murphy

Decision Date05 April 1961
PartiesCOMMONWEALTH v. Francis M. MURPHY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Avram G. Hammer, Boston (Joseph Sax, Boston, with him), for defendant.

Howard J. Camuso, Asst. Dist. Atty., Lawrence (John P. S. Burke, Dist. Atty., Lawrence, with him), for the Commonwealth.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

The defendant on appeal from the District Court was found guilty by a judge in the Superior Court under a complaint which charged that on September 8, 1959, the defendant 'was found in a place to wit: a room with apparatus, books and devices for registering bets upon the result of a contest of speed of beasts, to wit: horses * * *.' These are the defendant's exceptions to the denial, before trial, of his motion to quash which averred 'that the complaint * * * does not set out a crime either at common law or by statute.'

The bill of exceptions states: 'The court interpreted the complaint as alleging that the defendant was found in a room, and in that room were apparatus, books and devices for registering bets, but not as alleging that such apparatus, books and devices were under the defendant's control or that the defendant was cognizant of their presence in the room * * *.'

The defendant also appealed, 'being aggrieved by the judgment of the Superior Court founded upon a matter of law apparent upon the record.' See G.L. c. 278 § 28.

This complaint, construed as set out in the bill of exceptions, did not state a crime. The parties are in agreement that the reference is to G.L. c. 271, § 17, which contains these words: 'Whoever * * * occupies, or is found in, any place, * * * with apparatus, books or any device, for registering bets * * * shall be punished * * *.' The statutory background and the context, discussed in following paragraphs, show that the meaning is 'Whoever * * * is found * * * [anywhere] with apparatus * * * [etc.],' so that, for the crime, the fact must be that it is the defendant who is with the apparatus, and this necessarily imports something more than mere unwitting presence in the same place with apparatus.

Prior to St.1922, c. 315, the relevant wording of G.L. c. 271 § 17, excluding the words and punctuation in brackets which were added by the 1922 amendment, was as follows: 'Whoever keeps a building or room[,] or any part thereof[,] or occupies[, or is found in,] any place[, way, public or private, park or parkway, or any open space, public or private, or any portion thereof,] with apparatus, books or any device, for registering bets * * * or whoever is present in such place, way, park or parkway, or any such open space, or any portion thereof, engaged in such business or employment; or, being such keeper, occupant, person found or person present, as aforesaid, registers such bets, * * * or, being the owner, lessee or occupant of a building or room, or part thereof, or private grounds, knowingly permits the same to be used or occupied for any such purpose, or therein keeps, exhibits, uses or employes, or knowingly permits to be therein kept * * * [etc.] any device or apparatus for registering such bets * * * shall be punished' (emphasis supplied).

Thus, prior to 1922, § 17, with the one possible exception next specified, was plainly confined to punishing knowledgeable participation in the wrongs specified. Read by itself, the clause 'keeps a building or room or any part thereof or occupies any place with apparatus [etc.]' was possibly construable as making it a crime unwittingly to keep or occupy a building or part thereof in which was located the illegal apparatus. But the context belied this construction. The language which followed that provision made express the crime of an owner, lessee, or occupant who was not himself the keeper; such a defendant was to be punished if he 'knowingly permits the same to be used or occupied for any such purpose' (emphasis supplied). Furthermore the express provision punishing 'whoever is present in such place engaged in such business or employment; or, being such * * * person present * * * registers such bets' showed that something more than mere presence was required. For cases prior to 1922, under statutes predecessor to § 17, see Commonwealth v. Moody, 143 Mass. 177, 9 N.E. 511; Commonwealth v. Ferry, 146 Mass. 203, 15 N.E. 484; Commonwealth v. Clancy, 154 Mass. 128, 27 N.E. 1001; Commonwealth v. Watson, 154 Mass. 135, 27 N.E. 1003; Commonwealth v. Healey, 157 Mass. 455, 32 N.E. 656; Commonwealth v. Swain, 160 Mass. 354, 35 N.E. 862; Commonwealth v. Sullivan, 218 Mass. 281, 105 N.E. 895.

It is of some significance, additionally, that in 1922 c. 271 had, and it now has, in other sections, express provision in respect of 'persons present.' General Laws c. 271, § 5, provides that 'Whoever keeps or assists in keeping a common gaming house * * * [etc.] or is found playing or present as provided in * * * section * * * shall be punished * * *.' Section 23 specifies, as subject to arrest, 'all persons present [in such place] whether * * * participating or not * * *.'

The bill which became St.1922, c. 315, omitted the words 'or is found in' and the words 'person found.' These words were added on recommittal after the second reading. In original form, therefore, the proposed statute would have penalized '[w]hoever * * * occupies [*] any place, way, public or private, park or parkway, or any open space, public or private, or any portion thereof, with apparatus * * *.' The insertion at the point of the asterisk, above, of the words 'or is found in' served we think to meet the possible objection that a person walking in a park with lottery tickets in his pocket would not occupy the park or any part of it. The words 'found in * * * with' are to be given the same meaning when read with 'any place' that they have when read with the other words in the same sentence, 'way,' 'park' and 'open space.' Reasonably, something more than presence in the same 'place * * * way * * * park * * * or * * * open space' in which there is apparatus is required.

Subject to possible constitutional limitations as to the operation of a statute (see Lambert v. People of State of California, 355 U.S. 225, but compare dissenting opinion, at page 230, 78 S.Ct. 240 at page 243, 2 L.Ed.2d 228), the Legislature may determine what shall be deemed a 'public welfare offense' punishable notwithstanding innocent intent. Commonwealth v. Smith, 166 Mass. 370, 375-376, 44 N.E. 503. Commonwealth v. Mixer, 207 Mass. 141, 142-143, 93 N.E. 249, 31 L.R.A.,N.S., 467, and cases cited. Commonwealth v. Lee, 331 Mass. 166, 117 N.E.2d 830. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 64-65. But an intention to create such an offence should appear in clear and unambiguous language. 1 Commonwealth v. Smith, 166 Mass. 370, 375, 44 N.E. 503, 504. In the Smith case, in rejecting a construction of the forerunner of c. 271, §§ 5 and 23 (St.1895, c. 419, § 9), which would state the crime of merely being present in the same place with gaming instruments and ruling that the statute defined the crime to include the place as a common gaming house, Holmes, J., observed, 'All this might be true if the room was a chapel, if the defendant had been attending divine service, and if a thief had hidden the implements under a cushion in a remote corner of the place.'

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