State v. Caruso

• Decision Date: 25 March 1942
• Citation: 42 Del. 310,32 A.2d 771
• Parties: STATE v. JAMES CARUSO, also known as Amidore D'Onofrio. STATE v. JOSEPH TOLLIN
• Court: Court of General Sessions of Delaware

32 A.2d 771

42 Del. 310

STATE v. JAMES CARUSO, also known as Amidore D'Onofrio.

STATE v. JOSEPH TOLLIN

Court of General Sessions of Delaware, New Castle County

March 25, 1942

Court of General Sessions for New Castle County, No. 52, November Term, 1940; No. 51, November Term, 1940.

Each of the above defendants were indicted at the November Term A. D 1940, of the Court of General Sessions in and for New Castle County, Delaware, for keeping paraphernalia for the purpose of receiving and recording bets, in violation of paragraph 4063 of the Revised Code of 1935.

A motion was filed to quash the indictment in each case.

Six reasons were originally relied upon to convince the Court that the indictments should be quashed. The first reason assigned, that of double jeopardy, is not being pressed, and the remaining five reasons can be reduced to four.

That the indictment violates Section 7 of Article 1 of the Constitution of the State of Delaware, referred to as the (law of the land clause); that it violates the Revised Code of 1935, paragraph 5318; and that it violates the Fourteenth Amendment of the Constitution of the United States known as (the due process clause); in that it is so vague, indefinite and uncertain that conviction thereunder, followed by fine and imprisonment, would deprive the defendant of his liberty and property without due process of law;

That the indictment does not sufficiently charge a violation of the statute upon which it is based, 40 Delaware Laws, Chapter 220, Revised Code of 1935, Paragraph 4063, in that it fails to set forth the specific contest of speed of beasts as to which the alleged offense was committed;

That the statute upon which the indictment is based, being Volume 40, Laws of Delaware, Chapter 220, Revised Code 1935 Paragraph 4063, violates the first section of the Fourteenth Amendment of the Constitution of the United States, known as the due process clause, and violates the seventh section of Article One of the Constitution of the State of Delaware known as the law of the land clause; in that said statute is vague, indefinite and uncertain, that it sets up no ascertainable standards of guilt, that it insufficiently defines the acts and conduct which shall constitute a crime and that the word "paraphernalia" used in the first clause of said statute is vague, indefinite and uncertain, is not defined by the Act and is of indeterminate meaning, and that it sets up no ascertainable standard of guilt and is insufficient to define a crime;

That the statute upon which the indictment is based, being Volume 40 of the Laws of Delaware, Chapter 220, Revised Code of 1935, Paragraph 4063, violates Section 16, of Article 2, of the Constitution of the State of Delaware, in that the title of said statute is misleading and deceptive.

The motion to quash is denied.

Thomas Herlihy, Jr., Deputy Attorney-General, for the State.

Warren Roberts for the defendant, James Caruso, alias Amidore D'Onofrio.

RICHARDS and TERRY, J. J., sitting.

OPINION

RICHARDS, J.:

The indictments in these cases charge that the defendants, "on the Second day of February, in the year of our Lord one thousand nine hundred and forty with force and arms, at New Castle Hundred in the County aforesaid, being then and there the occupant of a certain room over Burris' Garage, located on Du Pont Boulevard, at Heald Street Cut-Off, at New Castle Hundred in the County and State aforesaid, unlawfully did then and there keep certain paraphernalia, to-wit: run down sheets, paper writing, radio telephone exchange, telephones and adding machines for the purpose of recording bets upon the results of certain contests of speed of beasts, to-wit: Horse racing conducted at a certain race track, the name of which is to the Grand Jurors aforesaid unknown."

It is contended that this language is so vague, indefinite and uncertain that it violates the Fourteenth Amendment of the Constitution of the United States, Section Seven of Article One of the Constitution of the State of Delaware, and Paragraph 5318 of the Code of 1935.

The Fourteenth Amendment of the Constitution of the United States provides, inter alia, that no state shall deprive any person of life, liberty or property without due process of law.

Section Seven of Article One of the Constitution of the State of Delaware provides, that every accused person has a right to be plainly and fully informed of the nature and cause of the accusation against him; and he shall not be deprived of life, liberty or property, unless by the judgment of his peers or by the law of the land.

Paragraph 5318 of the Code of 1935, provides that "the indictment or information in any criminal case shall contain a plain statement of the elements of the crime, sufficient plainly and fully to inform the defendant of the nature and cause of the accusation against him, in simple and nontechnical language."

The following language found in Wharton's Criminal Procedure, 10th Edition, Volume 21, Page 1013, is well adapted to the cases under consideration: "Under statutes prohibiting gaming and the keeping and exhibiting of gaming devices, no further allegations or descriptions of the devices is required in the indictment or information than that which is sufficient to show that the devices charged to have been unlawfully set up, kept or used fall within the prohibition of the statute, by showing that they were or are something tangible and adapted, devised, or designed for the purpose of playing games of chance or skill for money or other things of value. Any table or other device necessarily used in carrying on any of the prohibited games of chance or skill, is a gaming device, and the setting up or using of such tables being prohibited, an indictment or information charging accused with permitting certain tables to be set up and used for gaming purposes in rooms occupied by him, or under his control, charges an offense under the statute". The present indictments charge the defendants with the unlawful keeping of paraphernalia, to-wit, run down sheets, paper writing, radio telephone exchange, telephones and adding machines for the purpose of recording bets upon the results of certain contests of speed of beasts, to-wit, horse racing. If they simply charged the keeping of paraphernalia for the purposes aforesaid, we would have no hesitancy in holding them to be vague and uncertain. But they go much further, they describe the articles of which the paraphernalia consists, namely, run down sheets, paper writing, radio telephone exchange, telephones and adding machines.

The statute which the defendants are charged with having offended against, namely, Section 4063 of the Revised Code of 1935, makes it a misdemeanor for the owner, lessee or occupant of any room, house, building or enclosure, to keep, exhibit, use or employ therein, or permit or allow to be kept, exhibited, used or employed therein; or to be concerned in interest in keeping, exhibiting, using or employing therein, any book or books, device, apparatus or paraphernalia, for the purpose of receiving, recording or registering bets or wagers upon the result of any trial or contest in the State of Delaware, or elsewhere, of skill, speed or power of endurance of man or beast.

The articles which the defendants are charged in the indictment with having unlawfully kept, to-wit, run down sheets, paper writing, radio telephone exchange, telephones and adding machines, all could be used for the purpose of recording bets and it is the use of such articles which is prohibited by the statute. It is true that the words used in the statute are "book or books, device, apparatus or paraphernalia," but the articles above referred to, which the indictment charges the defendant with having unlawfully kept, can all be included in the words of the statute. An indictment must describe the offense charged in language sufficiently clear to fully inform the accused of what he is called upon to meet. This is necessary in order to enable him to prepare for trial, and in order that he may be protected from a subsequent prosecution for the same offense. State v. Cook, 6 W. W. Harr. (36 Del.) 298, 175 A. 200; State v. Walls, 4 Penne. 408, 56 A. 111; State v. Morrow, 1 Terry (40 Del.) 363, 10 A.2d 530.

It is contended that in the indictments under consideration the description of the paraphernalia which the defendants are charged with having kept is vague and indefinite. The first item mentioned, "run down sheet," seems to indicate clearly to defendant's attorney what was meant, as he describes them as "indices to show what race a given horse runs in on a specific day, and at what track." The objection is made that any given run down sheet is for a specific race track and for a specific day, and the argument is made that it should be designated in the indictment what particular race track these run down sheets were kept for and what particular days racing they covered. Following this argument to its logical conclusion it might also be necessary to state the particular horses upon which bets were recorded and the amount of each bet. Certainly the words "run down sheets," when used in connection with paraphernalia for the recording of bets, indicate to a person familiar with race tracks and interested in recording bets on horse races a record or list of the races on certain days. This, we think is sufficient. The position is then taken that "paper writing" could mean any writing or document whatever. That is true, but when made or used in connection with the other articles named in these indictments, the average citizen would understand that the paper writing in question was being used in connection with the business of recording bets upon the result of horse...