State v. Fico

• Decision Date: 14 June 1960
• Citation: 147 Conn. 426,162 A.2d 697
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Andrew FICO. Supreme Court of Errors of Connecticut

Page 697

162 A.2d 697

147 Conn. 426

STATE of Connecticut v. Andrew FICO.

Supreme Court of Errors of Connecticut.

June 14, 1960.

Howard A. Jacobs, New Haven, with whom, on the brief, were Israel J. Jacobs, Stanley A. Jacobs and Richard L. Jocobs, New Haven, for appellant (defendant).

George R. Tiernan, Pros. Atty., New Haven, for appellee (state).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

MELLITZ, Associate Justice.

The defendant was tried and acquitted in the Town Court of West Haven on a charge of violating § 53-298 of the General Statutes, which prohibits policy playing; at the same time, he was convicted of violating § 53-295, which prohibits pool selling. He appealed to the Court of Common Pleas, where he was founded guilty of a violation of § 53-295, and he has brought this appeal. In the Court of Common Pleas, the case was submitted upon a written stipulation of facts. The defendant's effort to have the finding corrected to show only the facts stipulated must fail. The stipulation obviated the necessity of presenting evidence to establish the facts stipulated, but it did not preclude the court from drawing proper inferences from those facts. The court was entitled to draw reasonable and logical inferences from all of the facts established by the stipulation. Marquis v. Marquis, 143 Conn. 354, 357, 122 A.2d 586; State v. Foord, 142 Conn. 285, 294, 113 A.2d 591.

The defendant was arrested in the home of Frank Pagliuca, where there were found 'Every Day' lottery bets, tally sheets, and a daily baseball line, all in the defendant's handwriting. The form of gambling involving Every Day lottery bets constitutes the offense commonly known as 'policy,' sometimes referred to as 'policy playing.' A tally sheet is a list of bets with the total of the bets. A baseball line shows the odds listed for betting upon the result of the games played by baseball teams on a particular day, and is comparable to a horse-racing scratch sheet. It is used in baseball pools and betting. No evidence was found of any baseball bets.

The contention of the defendant is that since no bets other than Every Day lottery bets were found, the only statute under which a conviction could have been had was § 53-298, relating to 'policy playing.' He contends further that after a finding of not guilty of violating § 53-298, a prosecution on the same set of facts on a charge of violating § 53-295 constituted double jeopardy and was in violation of the due process provisions of the federal constitution and the constitution of Connecticut. U.S.Const. Amend. XIV, § 1; Conn.Const. art. I § 9.

Section 53-295 is directed against the form of gambling known as pool selling, including bets or wagers upon the result of any trial of skill, speed or endurance. State v. Scott, 80 Conn. 317, 319, 68 A. 258, 259; State v. Harbourne, 70 Conn. 484, 486, 40 A. 179, 40 L.R.A. 607. Pool selling consists of the receiving from several persons of wagers on the same event, the total sum of which is to be given the winners, subject ordinarily to a deduction of a commission by the seller of the pool. 3 Wharton, Criminal Law and Procedure, p. 32. It does not constitute a lottery. Id., p. 75. Policy playing, on the other hand, is generally a form of lottery. State v. Mola, 128 Conn. 407, 409, 23 A.2d 126. It is a method of gambling by betting as to what numbers will be drawn in a lottery. State v. Carpenter, 60 Conn. 97, 102, 22 A. 497. Pool selling and policy playing are two distinct offenses and are so recognized by the legislature. Section 53-295 was originally enacted in 1893; Public Acts 1893, c. 68; and § 53-298, in 1895. Public Acts 1895, c. 190. Section 53-298 was enacted to deal with policy playing by a general statute of statewide application. Theretofore, the offense had been dealt with through municipal ordinances enacted under the authority of chapter 78 of the Public Acts of 1881. See State v. Carpenter, supra; State v. Flint, 63 Conn. 248, 250, 28 A. 28. Pool selling is regarded as the more serious. This is reflected in the penalties imposed in the two statutes. In State v. Scott, supra, 80 Conn. at page 320, 68 A. at page 259, it was said as to pool selling of bets on horse races: 'Common forms of gambling are comparatively harmless when placed in contract with the widespread evil of this form of pool selling.'

Each of the statutes enumerates various acts which, if committed, will constitute a violation of its provisions, and each is directed to punishing, in addition to those who commit the main offense, persons who assist or are in any way concerned in its commission. 'This pool gambling is the substantive offense created. Persons concerned in the accomplished crime are made liable to its penalties. * * * While each specified mode of assisting in the accomplishment of the main offense is thus made an offense, yet the definition of each mode is given for the purpose of making more certain the punishment of those concerned in the main offense, and should be read and interpreted in the light of this purpose.' State v. Scott, supra, 80 Conn. at page 324, 68 A. at page 261. Each statute makes it an offense for any person to maintain, or assist in maintaining, a place where the particular form of gambling proscribed may be carried on, or to be concerned in the doing of the acts involved in the main offense prohibited by the statute. Both forms of gambling may be carried on in the same place, and the evidence in a particular case may show acts which would warrant a conviction of either offense or of both...