State v. Cartwright

• Court: Arizona Court of Appeals
• Writing for the Court: DONOFRIO; OGG; STEVENS
• Citation: State v. Cartwright, 510 P.2d 405, 20 Ariz.App. 94 (Ariz. App. 1973)
• Decision Date: 31 May 1973
• Docket Number: No. 1,CA-CR,1
• Parties: The STATE of Arizona, Appellant, v. David CARTWRIGHT, Appellee. 513.

Page 405

510 P.2d 405

20 Ariz.App. 94

The STATE of Arizona, Appellant, v. David CARTWRIGHT, Appellee.

No. 1 CA-CR 513.

Court of Appeals of Arizona, Division 1, Department A.

May 31, 1973.

Rehearing Denied July 3, 1973.

Moise Berger, Maricopa County Atty. by Jerry L. Stejskal, Deputy County Atty., Phoenix, for appellant.

Gerald F. Sullivan, Phoenix, for appellee.

DONOFRIO, Presiding Judge.

The defendant-appellee, David Cartwright, was indicated by the Maricopa County Grand Jury on three counts of violating A.R.S. § 13--440, Wagering on Sporting Events. These counts arose from occurrences which allegedly took place on the 17th, 18th, and 24th of October 1971.

Prior to the date of the scheduled trial, defendant filed a 'Motion to Dismiss Indictment', claiming A.R.S. § 13--440 was unconstitutionally vague and indefinite and did not adequately charge him with having committed a crime.

Defendant also filed a 'Motion to Quash Indictment', raising the dual issue of whether the indictment was definite enough to charge him with having committed a crime, and whether A.R.S. § 13--440, as worded, creates a continuing crime for which there can be only a one-count prosecution. Defendant contended that he could be charged with only one count at most, and that the only action the trial court could take would be to dismiss all three counts so that the matter could be resubmitted to the grand jury to issue a one-count indictment.

Defendant also moved for a bill of particulars, requesting answers to several questions, including the following: The times during the three dates in October when the alleged acts took place, the nature of the illegal activity alleged against him, the means employed by him in accepting the wagers, the parties for whom he allegedly registered the illegal wagers, and whether the State employed a telephone wiretap to gather evidence against him. The trial court granted defendant's motion. Pursuant to the court order, the County Attorney filed his bill of particulars, stating, among other matters: The approximate times on the dates aforementioned when the alleged acceptances of the wagers were made; defendant's role was to accept the wagers placed; the wagers were verbally transacted; the first names of the parties with whom the bets were registered; football games were the events that were wagered upon; the amounts of the purported wagers made with the defendant, also naming the football teams and the point spreads in two of the three incidents, with a statement that a copy of a report of the third incident would be furnished to defense counsel; and that the State did employ a wiretap, stating the telephone numbers tapped, and stating that the taps were authorized pursuant to an order signed by Judge Harold Martin.

After having initially granted the motion for a bill of particulars, the trial court denied defendant's 'Motion to Dismiss', but granted his 'Motion to Quash Indictment.'

The State of Arizona as appellant raises the following questions for review:

1. Whether phrasing a count in an indictment in the language of the applicable statute is sufficient to resist quashing the indictment;

2. Whether A.R.S. § 13--440 sanctions only one continuing crime for which only one count for violating the statute may be charged, or whether multiple counts may be charged.

It is to be noted that no issue has been raised on appeal as to the constitutionality of A.R.S. § 13--440.

I. WAS THE INDICTMENT SUFFICIENT TO CHARGE THE DEFENDANT WITH A CRIMINAL OFFENSE?

A.R.S. § 13--440, subsec. A provides as follows:

'. . . (N)o person may Engage for gain, hire, reward or profit In the business of accepting, recording or registering any bet, purported bet, wager or purported wager or Engage for gain, hire, reward or profit In the business of selling wagering pools or purported wagering pools with respect to the result or purported result of any sporting event, contest or other game of skill or chance of any other unknown or contingent future event or occurrence whatsoever.' (emphasis added) Added Laws, 1971, Chapter 130, § 2.

Each of the counts in the indictment was set out in essentially the same language except, of course, for the different dates in October when the alleged violations took place. Count III, for example, was phrased as follows:

'That on or about the 24th day of October, 1971, in Maricopa County, Arizona, and before the bringing of this indictment, the said DAVID CARTWRIGHT, engaged for gain, hire, reward or profit in the business of accepting, recording, or registering any bet, purported bet, wager or purported wager, with respect to the result or purported result of any sporting event, contest or other game of skill or chance or any other unknown or contingent future event or occurrence whatsoever, all in violation of A.R.S. Sec. 13--440 as amended 1970.' Sec. 13--440 as amended 1971.' phraseology of Count III are substantially the same.

The State argues, in essence, that each count of the indictment was specific enough to have sufficiently notified defendant of the nature and cause of the accusations against him, because the counts were couched in the language of the applicable statute, A.R.S. § 13--440, and thus in accordance with the method of charging an offense as set out in Rule 115, Ariz.R.Crim.P., 17 A.R.S.

The Arizona Supreme Court has on several occasions passed upon the question of the degree of specificity with which a purported crime must be alleged. In State v. Suarez, 106 Ariz. 62, 470 P.2d 675 (1970), the court established the substantive test as follows:

'This Court has previously held that an information is legally sufficient if it fairly indicates the crime charged; states the essential elements of the alleged crime; and is sufficiently definite to apprise the defendant so that he can prepare his defense to the charge. State v. Maxwell, 103 Ariz. 478, 445 P.2d 837 (1968). The test of a sufficiency of an information is whether in a subsequent prosecution for the unlawful act described in the information the defendant could plead the information as a bar. State v. Kuhnley, 74 Ariz. 10, 15, 242 P.2d 843 (1952). Furthermore, an information is sufficient if the offense is set forth in such a manner that a person of common understanding would know what was intended. State v. Terrell, 103 Ariz. 453, 445 P.2d 429 (1968).' 106 Ariz. at 64, 470 P.2d at 677.

Specifically, in State v. Miller, 100 Ariz. 288, 297, 413 P.2d 757, 763 (1966), the Arizona Supreme Court in finding that an indictment was not defective, stated: '. . . an Indictment or information in the language of the statute is sufficient.' (emphasis added) See also, State v. Martin, 105 Ariz. 265, 463 P.2d 63 (1969).

Although the manner in which the counts were phrased does not depict a model of legal draftsmanship, our Supreme Court has found that language would be constitutionally sufficient to apprise a defendant of the charges against him. Quite clearly then, the trial court was in error to have granted the 'Motion to Quash Indictment.'

An abbreviated information or indictment, such as we have here, can be cured by a bill of particulars. State v. Martin, supra; State v. Burgess, 82 Ariz. 200, 310 P.2d 822 (1957); State v. Cutshaw, 7 Ariz.App. 210, 437 P.2d 962 (1968). See also, Rule 116(A), Ariz.R.Crim.P., 17 A.R.S. The proper course of action in the case at bar would have been for the trial court to have denied defendant's 'Motion to Quash', in conjunction with its correct decision to grant defendant's motion for a bill of particulars.

II. DOES A.R.S. S 13--440 PROSCRIBE BUT ONE CONTINUING CRIME OR THE POSSIBILITY OF SEVERAL CRIMES?

Both parties agree that the answer to the above question turns on the manner of statutory construction and legislative intent as to the emphasized words 'engaged . . . in the business' in the statute previously quoted in this opinion. The statute itself does not define what that phrase means.

Defendant contends that the intent of the legislature was that the statute creates a single continuing crime, that crime being the illegal operation of a gambling establishment. The State's position is that the legislature inserted the words 'engaged . . . in the business' in order to differentiate between the so-called friendly type bet and the bet made with one, for instance, in the 'bookmaking' business. If one engages in the activity of accepting, recording or registering a bet socially, no crime has been committed. The State argues that if he does so because it is his business, then a crime has been committed.

Although there have been Arizona decisions involving other gaming statutes, see infra, there have been none specifically interpreting the meaning of A.R.S. § 13--440. We have therefore examined case law from other jurisdictions for guidance in this matter.

There are several federal appellate cases which have interpreted the phrase 'in the business' in situations involving similar statutes which have imposed a tax on gamblers. In United States v. Simon, 241 F.2d 308 (7th Cir. 1957), the defendant was convicted of violating 26 U.S.C.A. § 3285(d) which imposed a tax on a person engaged in the business of accepting wagers. The Court of Appeals for the 7th Circuit, in affirming the conviction, gave the following interpretation to the phrase 'engaged in the business':

'. . . The purpose of the language 'engaged in the business of accepting wagers' was to exclude from coverage of the Act only bets of the 'purely 'social' or 'friendly type. " There is no indication that any other type of wager was excluded. Conversely, the language was intended to include wagers accepted by a principal on his own account, irrespective of whether he was primarily or only incidentally engaged in the acceptance of wagers.' (emphasis added). 241 F.2d at 310

In Kahn v. United States, 251 F.2d 160 (9th Cir. 1958), the court stated:

'Though the statutes involved in this appeal are not relatively new, and ...