State v. DeAngelis
| Decision Date | 28 September 1971 |
| Docket Number | No. 19293,19293 |
| Citation | 257 S.C. 44,183 S.E.2d 906 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. James V. DeANGELIS, Appellant. |
Jack F. McGuinn and Patrick E. Treacy, Columbia, for appellant.
Sol. Phillip K. Wingard, Lexington, for respondent.
The appellant was convicted on September 14, 1970, of violating Section 5--621 of the 1962 Code making unlawful the operation of certain gambling devices. He has appealed that conviction and the sentence imposed. We affirm.
In other cases at the May 1970 term of the General Sessions Court for Lexington County the appellant pled guilty to six indictments charging him with receiving stolen goods, conspiracy to commit the crime of receiving stolen goods, and accessory after the fact to housebreaking and grand larceny. On those six indictments in May 1970 appellant was sentenced in the aggregate to a term of 20 years, provided that upon service of 3 years the balance of his sentence be suspended and he was placed on probation for 5 years; he was allowed 120 days within which to arrange his business affairs before commencement of the service of the 3 years prison term. Thereafter, he moved for a new trial on the grounds of after-discovered evidence. The motion was denied and he appealed. Disposition of that appeal was made by opinion of this court filed July 8, 1971. Inasmuch as the sentence imposed in the case now before this court refers to the sentence imposed in the prior cases, reference is specifically made to the July 8, 1971 opinion of this court. (State v. DeAngelis, 182 S.E.2d 732).
In June 1970, while the appellant was enjoying his 120 days of freedom in order to arrange his business affairs, he was charged with operating gambling devices in the High Chaparral Restaurant. He requested and was granted a preliminary hearing; he also requested that the State have all of its witnesses present for the preliminary hearing. One witness, Lewis Brickle, Jr., was not present.
At the trial out of which this appeal arises the State presented two witnesses to the jury. The first was an undercover agent named Parker. The second was Mr. Brickle, an employee of the South Carolina Tax Commission which issues licenses for coin operated vending and amusement machines. The defendant did not present any testimony.
Section 5--621, under which the appellant was convicted, reads as follows:
'Any person violating the provisions of this section shall be subject to a fine of not more than five hundred dollars or imprisonment in the State Penitentiary or upon the public works of the county wherein the offense is committed for a period of not more than one year or both find and imprisonment, in the discretion of the court.'
The first question raised by the appellant on this appeal is whether the defendant was a person subject to the statute, and whether the machine was covered by the terms of the law as quoted above.
State's witness, Parker, testified that he visited the High Chaparral on several occasions. It was his testimony that the place of business was operated by the appellant, a bartender, and two girls. He stated that 'Mr. DeAngelis was running the operation--they didn't do anything unless he told them to do it--he was more or less manager of the place.'
The machine, referred to as a 'monkey machine' was described as follows:
The machine is operated by electricity; no skill is required in playing it. It would appear to be quite similar to that which is often called a slot machine or a 'one-armed bandit' except that the machine here involved does not have an automatic payoff feature. It is obviously not a pin table machine with free play feature as exempted from the statute quoted above.
The judge allowed the jury to say whether the appellant was a person subject to the statute, and whether the machine was subject to the statute, and in so doing, we find no error.
Appellant argues that a new trial should be granted because witness Brickle of the Tax Commission testified at the trial even though he did not testify at the preliminary hearing. We know of no rule of law in this State which requires that every witness who testifies in a trial be present and testify at the preliminary hearing. Certainly, under the facts of this case, no prejudice has been shown. We find no error.
Appellant contends next that Section 5--621 is unconstitutionally vague, and for that reason the conviction cannot be sustained. An analysis of its wording convinces us that a man of reasonable intelligence is given fair notice of the machines proscribed; that the statute cannot be used in a capricious or discriminatory manner; and that the personal liberties guaranteed by the Bill of Rights are satisfied thereunder. The cases cited by appellant present inapposite factual situations, primarily in the civil rights field.
Appellant also challenges the validity of the sentence imposed by the trial judge. That sentence as orally stated from the bench was as follows:
The sentence as written out, signed by the judge, and filed with the clerk, was as follows:
'The Sentence of the Court is that the defendant James DeAngelis be confined at heard labor upon the Public Works of Lexington County or in the State Penitentiary for a period of One Year and pay a fine of five Hundred Dollars. That upon service of _ _ of this Sentence, or the payment of _ _ the balance of the said Sentence shall stand suspended and the defendant shall be placed upon Probation for a period of _ _, the condition thereof being that he shall refrain from the violation of any State or Federal Penal Laws.
/s/ James B. Morrison
Presiding Judge
'To run concurrent with one year revocation.'
Appellant submits that during the 120 days allowed to arrange his business affairs he was not in a probationary status. At the time of the sentence the prosecuting attorney did not contend otherwise, and at least inferentially conceded 'he's not exactly on probation, * * *.' Ambiguity or doubts relative to a sentence should be resolved in favor of the accused. We therefore hold ineffective that portion of the sentence which attempted to revoke a portion of the May 1970 probationary sentence.
There remains for determination the question of whether the sentence imposed in this case runs concurrently or consecutively with the three year sentence imposed in May. The intent of the trial judge is controlling. The argument that the trial judge intended for the defendant to serve a total of four years before going on probation has much appeal. At the same time, the written sentences actually...
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State v. Mobley, 6-337571
...it has been held that "[a]mbiguity or doubts relative to a sentence should be resolved in favor of the accused." State v. DeAngelis, 257 S.C. 44, 50, 183 S.E.2d 906 (1971); accord United States v. Raftis, 427 F.2d 1145, 1146 (8th Cir.1970); Gaddis v. United States, 280 F.2d 334, 336 (6th Ci......
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Martin v. Stewart
...it contains an "element of chance" and is not "part of a legitimate promotion" to sell a product). Indeed, in State v. DeAngelis, 257 S.C. 44, 183 S.E.2d 906, 908 (1971), the state court rejected a vagueness challenge to precisely the same language—"games of chance of whatever name or kind"......
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Com. v. Ruiz
...("As in criminal statutes, ambiguities in probation conditions are construed in favor of the defendant"). Cf. State v. DeAngelis, 257 S.C. 44, 49-50, 183 S.E.2d 906 (1971) (court could not revoke probation where sentencing order was ambiguous whether defendant was "in a probationary status"......
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Martin v. Lloyd
...based, at least in part, on whether a device is a game of chance under § 2710 and its predecessor statute. See State v. DeAngelis, 257 S.C. 44, 183 S.E.2d 906, 908 (1971) (affirming a jury's determination that a game requiring “no skill” was illegal under a predecessor statute); see also Wa......