Com. v. Demogenes
| Decision Date | 28 October 1965 |
| Citation | 211 N.E.2d 226,349 Mass. 585 |
| Parties | COMMONWEALTH v. Michael DEMOGENES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James C. Hamilton, Boston (Harold Katz, Boston, and Nicholas Macaronis, Lowell, with him) for defendant.
Barry Haight, Asst. Dist. Atty. (Ruth I Abrams, Asst. Dist. Atty., with him), for the Commonwealth.
Before SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.
The defendant was tried and convicted on a complaint charging a violation of G.L. c. 271, § 17, in that he 'was found in a place in * * * Lowell with apparatus, books or any device for the purpose of registering bets upon the results of a trial or contest of skill or endurance of beasts, to wit: a horse race and did register best upon such trials or contest of speed.' At the close of the evidence the defendant presented a motion for a directed verdict of not guilty which was denied, subject to the defendant's exception. The correctness of this ruling presents the sole question for decision.
The evidence was as follows: On September 12, 1964, an officer of the Commonwealth visited a bar in Lowell known as McCormack's Lounge, which was across the street from the defendant's premises. While in the lounge the officer 'observed various patrons reading Armstrong's and the Daily Telegraph.' The patrons would then leave the lounge and go directly across the street to the Lowell Athletic Club. The officer, '[a]s a result of certain conversations * * * in [the] * * * Lounge,' entered the Lowell Athletic Club, approached the defendant, and gave him $4 'designating that the money was a bet on a particular horse, in a race occurring on that day.' The officer told the defendant that 'Bill, across the street, said it would be ok.' The defendant 'looked across the street and waved.'
The bill of exceptions states that '[t]here was no further evidence as to the contents, apparatus, furnishings, books, or any device existing in the Lowell Athletic Club on September 12, 1964, at the time that the officer * * * placed said bet.'
The defendant contends that the evidence recited above does not establish his presence in a place 'with apparatus, books or any device, for registering bets' within the intendment of G.L. c. 271, § 17. The relevant portions of the statute read: 'Whoever * * * is found in * * * any place * * * with apparatus, books or any device, for registering bets * * * upon the result of a trial or contest of skill, speed or endurance of man * * * [or] beast * * *; or, being such * * * person * * *, as aforesaid, registers such bets * * * shall be punished by a fine of not more than two thousand dollars or by imprisonment for not more than one year.'
The evidence reveals that the only property found at the place where the bet occurred were four one dollar bills. Thus we are called upon to decide whether wagered money in and of itself constitutes an 'apparatus' or 'device' for registering bets within the meaning of the statute.
Hitherto we have held that such items as blackboards and tickets containing names of horses, telephones, number pool slips, and papers containing records of bets and the like could be found to be 'apparatus' for registering bets. See Commonwealth v. Clancy, 154 Mass. 128, 27 N.E. 1001; Commonwealth v. Adams, 160 Mass. 310, 35 N.E. 851; Commonwealth v. Jensky, 318 Mass. 350, 61 N.E.2d 532; Commonwealth v. Carlson, 331 Mass. 449, 120 N.E.2d 384; Commonwealth v. Boyle, 346 Mass. 1, 189 N.E.2d 844. And, as the Carlson case held, even articles (tape, pens and pencils) which could be used for innocent purposes may, when used with items designed for betting purposes, be found to be 'apparatus.'
'Apparatus' or 'device' connotes an instrumentality utilized in betting, while 'registering' suggests in its ordinary meaning the commitment to writing of some event or transaction. See Sullivan v. Vorenberg, 241 Mass. 319, 321, 135 N.E. 165; Commonwealth v. Pasquale, 334 Mass. 669, 670-671, 138 N.E.2d 204. Of course the stake of a wager is to some extent instrumental in the placing of a bet, but we are of opinion that wagered money, without more, is not an 'apparatus' or 'device' for registering bets within the purview of G.L. c. 271, § 17.
Support for this interpretation may be found in G.L. c. 276, § 1,...
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U.S. v. Morrison
...upon which wagering occurs. See, e.g., Commonwealth v. Boyle, 346 Mass. 1, 4, 189 N.E.2d 844, 846 (1963); Commonwealth v. Demogenes, 349 Mass. 585, 588--89, 211 N.E.2d 226, 228 (1965); Gallinaro v. Commonwealth, 362 Mass. 728, 733, 291 N.E.2d 420, 423 (1973). However, a decision on this que......
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...finding that most of the items seized were "apparatus, books or ... device[s]" used for registering bets. See Commonwealth v. Demogenes, 349 Mass. 585, 587, 211 N.E.2d 226 (1965). The Commonwealth was not required to establish that a bet had been taken on the premises on January 7. In view ......
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