Commonwealth v. Smith

• Decision Date: 15 June 1896
• Citation: 166 Mass. 370,44 N.E. 503
• Parties: COMMONWEALTH v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 370

44 N.E. 503

COMMONWEALTH

v.SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

June 15, 1896.

Exceptions from superior court, Suffolk county; J.B. Richardson, Judge.

James A. Smith was convicted of being present where gaming implements were found, and brings exceptions. Overruled.

The evidence was submitted to the jury on the following agreed statement of facts: A search-warrant was granted November 15, 1895, by virtue of section 9, c. 419, Acts 1895, to search the premises of No. 19 Province street. By virtue of this warrant, police officers searched said premises on that day, and in a room on the second floor of said building they found a blackboard, on which were written, in six different columns, the names of race horses entered in six different races, 120 blank tickets for the making of memoranda of bets, and a compartment for the sale of such memoranda, in which compartment the aforesaid blank tickets were found. Defendant was present when the aforesaid implements were found, and all the implements were in plain view of any person in the room. The defendant was searched at the station house. There was found on his person a ticket containing a memorandum of a bet on a horse race.

P.J. Casey and E.F. Collins, for plaintiff.

M.J. Sughrue, Asst. Dist. Atty., for the Commonwealth.

HOLMES, J.

The offense of being present where gaming implements are found, created by St.1895, c. 419, § 9, is created by the words “every person found *** so present,shall be punished.” “So” refers back to the words “all persons present, *** if any *** materials of any form of gaming are found in said place.” “Said place,” by reference, means a place which has been complained of under oath as a common gaming house. But the words last quoted are used in that part of the section which authorizes an arrest on the complaint. When we come to the words constituting the offense, and first above quoted, it is plain that we must not take the word “so” literally, with the result of making it criminal to be in the same place with gaming implements, if the place merely has been complained of as a common gaming house. The place must be used unlawfully as a common gaming house in fact. The word “so” is an abbreviation, and not so accurate an abbreviation as might be wished in a criminal statute, since it seems to have misled the pleader; but we are of opinion that the meaning is clear. Therefore it is material to allege that the place was “unlawfully used as and for a common gaming house.”

The allegation in the complaint before us is: “And so the said Denton *** doth say that the said room, in manner and form aforesaid, was unlawfully used as and for a common gaming house,” etc. It is argued for the defendant that the words “and so” import that the allegation following is a legal consequence of facts previously alleged, and that, although there may be no objection to the form of expression as argumentative, if the earlier allegations justify it (Com. v. Desmarteau, 16 Gray, 1, 16), if they do not justify it, the complaint must be quashed (Com. v. Whitney, 5 Gray, 85, 86). The previous allegations here, after those which superfluously state the preliminary complaint and the warrant, are, in substance, that the present complainant, Denton, entered the room complained of, and there found the defendant present at the time gaming implements were found by Denton in the room; that Denton seized the implements, and arrested the defendant. 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. It is not enough to warrant a conviction; it does not even amount to prima facie evidence, under sections 3, 4. The whole argument, it will be seen, turns on the effect of the words “and so.” But the court are of opinion that the words, as here used, do not have the effect of limiting the following allegation to the legal conclusion from what precedes. They think that it sufficiently appears that the complainant intends to allege, as a distinct, substantive fact, that the room was used as and for a common gaming house.

The objection that the defendants cannot be joined in one complaint, although plausible, seems to us unsound, in view of the precedents. As was said of a different offense, the act is more analogous to the maintaining of a public nuisance...