State v. Caruso. State

• Decision Date: 25 March 1943
• Parties: STATE v. CARUSO. STATE v. TOLLIN.
• Court: Court of General Sessions of Delaware

32 A.2d 771

STATE
v.
CARUSO.
STATE
v.
TOLLIN.

Court of General Sessions of Delaware, New Castle County.

March 25, 1943.

Consolidated proceedings by the State of Delaware against James Caruso, also known as Amidore D'Onofrio, and against Joseph Tollin on indictments for keeping paraphernalia for the purpose of receiving and recording bets in violation of Rev.Code of 1935, § 4063. On motion to quash the indictment in each case.

Motion denied.

32 A.2d 772

No. 52 to November Term A. D. 1940. No. 51 to November Term A. D. 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.

RICHARDS and TERRY, JJ., sitting.

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

Thomas Herlihy, Jr., Dep. Atty. Gen., for the State.

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;

32 A.2d 773

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.

RICHARDS, Judge.

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 DuPont Boulevard, at Heald Street Cut-Off, at New Castle Hundred in the County and State aforesaid, unlawfully did then and there keep certain paraphernalia, towit: 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, towit: 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 non-technical 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, towit, 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, towit, 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...