State v. DeMartin

Decision Date07 September 1976
Citation370 A.2d 1038,171 Conn. 524
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut. v. Charles DeMARTIN.

Anthony J. Lasala, New Haven, for appellant (defendant).

William F. Gallagher, Special Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and John J. Kelly, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, LOISELLE, BOGDANSKI and BARBER, JJ.

COTTER, Associate Justice.

The defendant was convicted, after a trial to the jury, of conspiracy to commit the crime of policy playing, in violation of former § 54-197 of the General Statutes. On appeal he has challenged certain of the trial court's rulings on evidence, as well as the denial of his motion to dismiss the information.

From a review of the evidence, the jury could have found the following facts: Beginning on August 25, 1971, an undercover police officer succeeded in ingratiating himself with persons involved in policy playing operations in the New Haven and outlying areas. On September 27, 1971, the officer met with the defendant and one John Taddei 1 to discuss the officer's efforts to set himself up in the policy playing operation. At that meeting, the defendant made a series of threats against the officer in the event it should be discovered that he was a policeman. The officer responded that his life was an open book and that he was only in it for the money. The defendant, apparently satisfied by this reply, then said: 'Okay, here's how I do it,' and described how the officer would be set up in the operation.

Later that day, at the defendant's instructions, Taddei told the officer to call in his 'action' to a certain telephone number every day between noon and 1 p.m. The officer was told that he should identify himself as 'Peanuts' and that the person on the other end, who would identify himself as 'Roger,' would be expecting his calls.

On September 28, 29 and 30, the officer called in a series of fictitious bets to 'Roger' and made tapes of these conversations, which were admitted into evidence along with a tape of a September 26 conversation between the officer and John Taddei. Transcripts of these four conversations were also submitted to the jury. 2

On September 30, the officer made arrangements to meet with Taddei the next day, and at that October 1 meeting Taddei gave the officer $80 to pay off a winning policy number from the preceding day's action. This $80 was admitted into evidence for the limited purpose of showing the intention of the parties on September 30, but, in the final charge to the jury, the trial court reversed itself and instructed the jury to disregard the $80 payment as well as evidence concerning the conversation between the officer and, Taddei on October 1. The officer's undercover operation concluded on October 4, 1971.

I

The conspiracy was alleged to have taken place between August 25, 1971, and October 4, 1971. 3 Connecticut's conspiracy statute 4 was repealed, effective October 1, 1971, upon adoption of a new 'Penal Code,' § 53a-1, and a new conspiracy statute, General Statutes § 53a-48, 5 became effective. The trial court therefore excluded all evidence of events which occurred from October 1 through October 4 and permitted the state to proceed under the original information, charging the defendant with conspiracy under General Statutes § 54-197, instead of under the new § 53a-48(a) of the General Statutes.

The defendant challenges the state's right to charge him under General Statutes § 54-197 after its effective repeal date, i.e., October 1, 1971, along with the admission of evidence as to events of October 1.

With respect to the state's power to charge under General Statutes § 54-197, General Statutes § 54-197 is dispositive, for it provides that: 'The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect. ' (W)hen such a saving provision exists, a crime committed prior to the effective date of the repealing act remains punishable under the terms of the prior statute.' State v. Pastet, 169 Conn. 13, 22, 363 A.2d 41; United States v. Reisinger, 128 U.S. 398, 401, 9 S.Ct. 99, 32 L.Ed. 480; Dortch v. State, 142 Conn. 18, 29, 110 A.2d 471; see also 73 Am.Jur.2d, Statutes, § 422; 1A Sutherland (4th Ed.), Statutory Construction §§ 23.36-23.38, and cases cited therein. There was no error in charging the defendant under General Statutes § 54-197.

Nor is there any error in the trial court's limited admission and subsequent exclusion of evidence of events of October 1, i.e., the conversation between the officer and Taddei and the $80 which Taddei paid the officer. Although the court had barred the state from presenting evidence of a conspiracy which took place after September 30, this October 1 evidence was initially admitted for the limited purpose of showing the intention of the parties on September 30, the day a bet winning $80 was phoned in by the officer. The trial court, in its charge to the jury, however, reversed itself and told the jury to disregard this October 1 evidence and to consider only events which occurred on or up to September 30. In light of the strong and explicit language of the charge, 6 as well as a review of the particular evidence challenged by the defendant we cannot say that the defendant was rejudiced by the limited admission and then exclusion of the October 1 evidence; any error in its admission was cured by the trial court's charge. State v. Pikul, 150 Conn. 195, 198, 187 A.2d 442; State v. Buonomo, 88 Conn. 177, 90 A. 225; see also Veney v. State, 251 Md. 182, 197-98, 246 A.2d 568, cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482; Pennsylvania Co. v. Roy, 102 U.S. 451, 458-59, 26 L.Ed. 141.

II

The defendant claims error in the denial of his motion to dismiss the information on the ground that under Wharton's Rule 7 the crime of policy playing is of such a character that one can be charged only for a substantive violation of the statute and not for conspiracy. We cannot agree.

In its most recent formulation, Wharton's Rule reads as follows: 'An agreement by two persons to commit a crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.' 1 Wharton, Criminal Law & Procedure (Anderson Ed.) § 89, p. 191, cited in State v. Acklin, 171 Conn. 105, 117, 368 A.2d 212 (37 Conn.L.J., No. 48, pp. 8, 11). Differently put, the principle is that 'where a crime can only be committed by the concurrence of two parties, they must be charged with its commission and not with a conspiracy to commit it.' State v. Kemp, 126 Conn. 60, 81, 9 A.2d 63, 73; State v. Acklin, supra; State v. McLaughlin, 132 Conn. 325, 335, 44 A.2d 116.

In a recent opinion, the United States Supreme Court reviewed Wharton's Rule at length and declined to hold that the doctrine required reversal of a conviction for conspiracy to violate a federal anti-gambling statute. Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616. As the court noted: 'The classic Wharton's Rule offenses-adultery, incest, bigamy, dueling-are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than on society at large.' Id., 782, 95 S.Ct. 1292; State v. Acklin, supra; United States v. Bobo, 477 F.2d 974, 987 (4th Cir.).

The court concluded that 'Wharton's Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity.' (Emphasis in original.) Iannelli v. United States, supra, 420 U.S. 785, 95 S.Ct. 1293.

It is true that gambling generally involves the participation not only of bettors but also of people who accept and process these bets. The policy playing statute in effect at the time of the instant conspiracy, 8 former § 53-298 of the General Statutes, is specifically drawn, however, and seeks to punish only those persons in the latter category and not the bettors. From a reading of this statute, it is also apparent that one may commit a substantive violation of § 53-298 without necessarily conspiring to do so, just as one may conspire with another to violate the statute without actually committing the substantive policy playing offense. For these reasons, a substantive violation of § 53-298 and a conspiracy to violate that statute do not require collective or concerted activity in the same sense as adultery, incest, bigamy, dueling, or any other Wharton's Rule offense. Lannelli v. United States, supra, 785, 95 S.Ct. 1284.

Our holding on this issue is consistent with State v. McLaughlin, supra, 132 Conn. 335, 44 A.2d 116, in which we upheld a conviction for conspiracy to operate a telegraph and telephone apparatus for transmitting and receiving information concerning horse races upon which bets were to be placed. It was noted in that case that the legislature intended to punish only those who were transmitting the betting information and not those who received it, and in State v. Faillace, 134 Conn. 181, 185, 56 A.2d 167, 169, we similarly observed 'that persons can set up a dice game and thus violate' a gambling statute 'even though no customers are obtained.' See also State v. Kemp, supra.

The policy reasons for permitting prosecution for conspiracy under such circumstances were best summed up by Mr. Justice Powell in Iannelli, where he wrote: 'Unlike the consequences of the classic...

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