State v. Genova

• Decision Date: 13 July 1954
• Citation: 141 Conn. 565,107 A.2d 837
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Peter GENOVA. Supreme Court of Errors of Connecticut

Page 837

107 A.2d 837

141 Conn. 565

STATE of Connecticut v. Peter GENOVA.

Supreme Court of Errors of Connecticut.

July 13, 1954.

Edward G. Burstein, Bridgeport, with whom, on the brief, was Bernard Green, Bridgeport, for appellant (defendant).

Otto J. Saur, Asst. St. Atty., Bridgeport, with whom, on the brief, was Lorin W. Willis, State's Attorney, Bridgeport, for appellee (state).

Before INGLIS, C. J., and BALDWIN, WYNNE and DALY, JJ., concurring.

BALDWIN, Associate Justice.

The defendant was presented for the violation of General Statutes, § 8675, which forbids policy playing. He was found guilty in a trial to the court and has appealed. He claims that the court erred in finding him guilty when the evidence did not establish his guilt beyond a reasonable doubt, in certain conclusions of facts, and in a ruling on the admission of testimony.

The information accused the defendant of policy playing and charged that he 'did engage in the sale or exchange of policy slips or tickets, for the purposes of wagers and gambling, against the peace and contrary to the form of the statute in such case made and provided.' He concedes that the information was, 'on its face, good and sufficient.' He argues, however, that the statute describes with great particularity what acts or series of acts shall constitute a violation of it. He claims that there was not sufficient evidence, or, indeed, any evidence, of 'any sale or exchange whatsoever of any policy slips by the defendant or by anyone else.' The portion of the statute pertinent to the disposition of these claims is as follows: 'Any person * * * who * * * shall write, sell, bargain, exchange, give transfer, deliver, buy, collect or receive, or be concerned in writing, selling, bargaining, exchanging, giving, transferring, delivering or receiving, any policy slips, tickets, tokens, numbers or chances, used in said game of chance, business, scheme or occupation, or in wagering or betting upon the result of any drawing in any lottery, or in any drawing of any numbers by chance,' shall be subject to the penalties provided in the statute. General Statutes, § 8675.

The defendant did not himself testify or offer any other evidence. The following facts could reasonably have been found: In the game of policy, the player selects a combination of three digits upon which he bets his money, from one penny up. He transmits these numbers by telephone or otherwise to the one taking the bet, who records them, together with the amount placed. The winning combination is determined by taking the last whole number in the winnings of the first three horse races at some race tract--in this instance, Hialeah, Florida--as the first digit, the last whole number in the winnings of the first five races as the second digit, and the last whole number in the winnings of the first seven races as the third digit. The one making the wager can check the success of his bet from the horse-racing reports carried daily in a well-known New York newspaper.

On January 12, 1953, shortly after 1 o'clock in the afternoon, Lieutenant Halpin of the Bridgeport police department and Detectives Ford, Witt and Beardsworth went to a two-family house at 192 Harriet Street in Bridgeport. They had a search and seizure warrant. Ford, Witt and Beardsworth entered the ground-floor apartment by a rear door which opened into the kitchen. Halpin entered the living room through the front door. He found the defendant watching television. He and the defendant went into the kitchen, where they joined the three detectives. Meantime, in a bedroom adjoining the kitchen, the detectives had discovered the defendant's wife seated at a desk on which there were a telephone, a memorandum pad and fifteen sheets of paper, each of which contained a date, some names or initials of individuals, and columns of figures. These papers were later identified as records of bets placed in the game of policy playing. The police officers took them into their possession. When Halpin stated, in the defendant's presence, that the defendant's wife would have to be taken into custody, the defendant said, '[T]hat is my stuff there,' meaning the sheets of paper found on the desk, and '[T]here is about $30 worth there.' Races were to be run that afternoon at Hialeah Park. A computation of the slips showed that a sum of $244.05 had been placed as bets against the numbers on the sheets of paper. The trial court concluded that the sheets of paper belonged to the defendant, that they were used for policy playing and recorded bets made that day against the numbers on them, and that the defendant was guilty as charged.

The evidence did not establish that the defendant had personally sold or exchanged any ticket or policy slip in the sense of making an actual transfer of some tangible article. But proof of the sale and actual transfer of a policy slip or ticket as a record of a bet to the one placing it was not necessary. The information charged that the defendant 'did engage in the sale or exchange of policy slips or tickets.' The wording of the statute is sufficiently broad to encompass not only the actual act of selling or exchanging some tangible object in the form of a slip or a ticket but also being 'concerned' with selling or exchanging it. See State v. Mola, 128 Conn. 407, 409, 23 A.2d 126. One is concerned in a certain matter when he has some connection with it, when it affects his interests or involves him. Then, too, one is 'engaged' in an affair when he is involved with it or has some interest in it. Webster's New International Dictionary (2d Ed.). The intent expressed by the statute is to make one who participates, is involved or has an interest in the acts proscribed subject to the penalties set forth. State v. Bach Liquor Co., 67 Ark. 163, 167, 55 S.W. 854; People v. Marty, 59 Cal.App. 503, 507, 210 P. 964; Motley v. Commonwealth, 177 Va. 806, 809, 14 S.E.2d 28; see Sweeney v. Independent Order of Foresters, Sup., 179 N.Y.S. 94, 96, affirmed 190 App.Div. 787, 181 N.Y.S. 4; People v. Photocolor Corporation, 156 Misc. 47, 52, 281 N.Y.S. 130. It is sheer indulgence in the technicality of ancient common-law pleading, where the great number of crimes punishable on the gibbet made it necessary to resort to fine-spun reasoning to save the neck of the victim, to say that an information which charges that an accused 'did engage' in doing a prohibited act is not comprehended by a statute which forbids being 'concerned' in doing it.

The defendant admitted to the police that he owned the papers which were identified as policy slips. This fact, together with the further fact that these slips were actually records of bets obviously taken by the defendant's wife over the telephone, while the defendant was in an adjoining room, at a time of day, before the races, when such bets would ordinarily be recorded, justified an inference that the defendant, acting through his runners, had been engaged in selling policy slips or their equivalent to others. The evidence was sufficient to indicate to a reasonable person such a strong probability of the defendant's concern or engagement in the taking of the bets that an explanation or denial could reasonably be expected. It was sufficient to make out a prima facie case which a court would be warranted in submitting to a jury. State v. Rich, 129 Conn. 537, 540, 29 A.2d 771; State v. McDonough, 129 Conn. 483, 487, 29 A.2d 582. The defendant failed to take the witness stand himself or offer any testimony in his own behalf. The trial court was justified in drawing an inference from this circumstance and all the other evidence that the defendant was guilty beyond a reasonable doubt. State v. Gudones, 121 Conn. 704, 185 A. 414; State v....