State v. Goldman
| Decision Date | 26 August 1971 |
| Citation | 281 A.2d 8 |
| Parties | STATE of Maine v. Arnold GOLDMAN. |
| Court | Maine Supreme Court |
Ronald E. Ayotte, County Atty., Alfred, Peter T. Dawson, Asst. Atty. Gen., Augusta, for plaintiff.
Smith, Elliott & Wood, P. A., by Charles W. Smith, Saco, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK, and ARCHIBALD, JJ.
The Defendant, with two others, on January 24, 1968, was charged by indictment with the crime of conspiracy. The essence of the alleged conspiracy was that the Defendant agreed to engage in the illegal activity of bookmaking. After an unsuccessful attack on the sufficiency of the indictment, and the consideration of other pre-trial matters, including a ruling on the Defendant's motion for a Bill of Particulars, the case finally came to trial on January 27, 1969. On February 3, 1969, the Jury returned a verdict of guilty, from which conviction an appeal was noted. On October 22, 1969, the Defendant filed a motion for a new trial on the grounds of newly discovered evidence. This motion was denied and an appeal taken from this ruling. The case is before us on appeal from both the conviction and the denial of this motion for new trial.
We will consider first only the Points of Appeal which the Defendant relies upon following the verdict of guilty, which are:
'(1) That the Court erred by erroneously admitting evidence during the course of the trial prejudicial to the Defendant.
(2) That the Court erred in failing to grant the motion to dismiss the indictment.
(3) That the Court erred in denying Defendant's motion for Bill of Particulars.
(4) That the Court erred in failing to grant the Defendant's motion for a mistrial.
(5) That the Court erred in failing to grant a motion or acquittal.
(6) That the Court erred in failing to grant Defendant's motion for a new trial.
(7) That the Defendant failed to receive a fair trial under the Due Process Clause of the Constitution of the United States and of the State of Maine.'
The indictment is as follows:
'THE GRAND JURY CHARGES: that Lucien Therrien of Biddeford, County of York, State of Maine, Arnold Goldman of Kennebunk, County of York, State of Maine, and Theresa Martelle of Portland, County of Cumberland, State of Maine, and divers other persons whose names to the said grand jurors are unknown, on April 5, 1965 and continuously thereafter up to and including October 18, 1967, at Biddeford, County of York, State of Maine, and other divers places in the County of York, State of Maine, said places to your grand jurors unknown, did combine, conspire and agree together, feloniously with malicious intent, wrongfully and wickedly, to commit a crime punishable by imprisonment in the State Prison to wit: did then and there illegally conspire and agree together with such intent, wrongfully and wickedly to engage in bookmaking unauthorized by law in violation of Title 17 M.R.S.A. Section 1801, to wit: illegally making, accepting and otherwise participating in wagers on horse races, sporting events and number combination games.'
We first consider the Defendant's motion to dismiss the indictment. In order to do this it is necessary to have in mind the Maine Statute relating to conspiracy and bookmaking. Conspiracy is proscribed by 17 M.R.S.A. § 951, the essential parts thereof relating to the issues here are as follows:
'If 2 or more persons conspire and agree together, with the fraudulent or malicious intent wrongfully and wickedly * * * to commit a crime punishable by imprisonment in the State Prison, they are guilty of a conspiracy.'
17 M.R.S.A. § 1801 prohibits bookmaking in this language:
'Whoever engages or participates in pool selling, bookmaking and numbers game, or aids or abets the same by his presence unless the same is authorized by law, * * * shall be punished. * * *'
The punishment following conviction for bookmaking permits imprisonment in the Maine State Prison and is, therefore, a felony, which term 'includes every offense punishable by imprisonment in the State Prison.' 15 M.R.S.A. § 451.
The Defendant advances the theory that this indictment goes no further than charging the Defendant with placing a bet with a bookmaker, which could not result in a conspiracy because bookmaking itself requires the concerted action of at least two participants. We do not agree with this contention. To paraphrase State v. Pooler (1945), 141 Me. 274, 43 A.2d 353 (), the bookmaking statute is directed against persons acting individually; whereas, the conspiracy statute is designed to provide punishment for a combination of persons acting in concert to accomplish an illegal object. This indictment does not charge the Defendant with being merely a bettor, but does sufficiently charge the Defendant and two others with conspiring to gain an illegal objective; namely, bookmaking. Hurwitz v. State (1952), 200 Md. 578, 92 A.2d 575. See also McGuire v. State (1952), 200 Md. 601, 92 A.2d 582.
We hold under the familiar rule stated in State v. Charette, (1963) 159 Me. 124, 188 A.2d 898, that this indictment sufficiently charges a criminal offense. It complies with M.R.Crim.P. Rule 7(c).
Prior to trial the Defendant filed a 'Motion for a Bill of Particulars' in which he moved that the State be ordered 'to file a Bill of Particulars stating the matters to be given in evidence against the Defendant.' (Emphasis added.) We assume that this motion was filed pursuant to M.R.Crim.P. Rule 7(f). 1 The motion was denied over the Defendant's objection. The record discloses a 'Motion for Discovery' which contains sixteen requested items, many of which could be evidentiary in nature. The Motion for Discovery was granted on February 20, 1968, and there is no evidence that the State failed to conform faithfully to the order allowing discovery. In ruling on the Motion for a Bill of Particulars the Presiding Justice, having this background in mind, decided that there was no occasion to grant the motion. In fact, the record discloses that Defense Counsel was asked if there had been a compliance with the Order for Discovery and he responded, 'As far as I know, it has been complied with.' In the commentary under this rule (§ 7.14) Professor Glassman states:
'It is not the function of a Bill of Particulars to disclose in detail the evidence upon which the prosecution will rely, * * *.
The grant or denial of a Motion for a Bill of Particulars is a matter which rests within the discretion of the trial court and the trial court's ruling will not be disturbed in the absence of an abuse of discretion. * * *'
The record before us discloses no abuse of discretion.
The State relied principally on the testimony of Lucien Therrien, who was an admitted bookmaker. His base of operation was known as the 'Cue Stick Lounge' in Biddeford, and he booked bets on horse races, sporting events, card games and numbers games. Mr. Therrien described his relationship with the Defendant between the dates alleged in the indictment. It was apparent that the Defendant began this association by placing small bets from time to time with Mr. Therrien. They ultimately expanded their association to a point when Mr. Therrien began to 'lay off' some of his larger bets with the Defendant. In describing this, Mr. Therrien used such words as these:
'Well, larger bets, I would give him what I couldn't handle, myself.'
'Well, every day that I would call him, I would tell him I would stay with so much and let him take care of the rest.'
Mr. Goldman, on the other hand, denied this arrangement and said that his only relationship with Mr. Therrien was that of betting with the bookmaker and that he never engaged in the so-called 'lay off' procedure.
On October 18, 1967, the Maine State Police conducted a gambling raid on the 'Cue Stick Lounge' and placed Mr. Therrien under arrest. During the progress of the raid one Adrien Boudreau entered this building, having in his possession a brown manila envelope which was taken by the Police and was found to contain $4,083.00. According to Mr. Therrien, he had given Boudreau $5.00 to go to the Defendant's place of business, get this envelope and bring it to him. The money therein contained, Therrien said, was the 'lay off' assumed by the Defendant and required to pay losses he had incurred booking bets on the 1967 World Series. The record discloses these questions and answers:
'Q (By Mr. Lilley) Why did you send for the money?
A To pay the players that had placed bets.
Q I see. Were-did you cover bets of this size?
A I couldn't. No.
Q You couldn't pay bets of this size?
A No, I did not have no money to cover bets of that size.
Q So this money was to pay bets of this size from Arnold Goldman?
A Yes.'
Mr. Goldman subsequently testified that he did, in fact, deliver the envelope to Mr. Boudreau but he was simply doing this as a favor for a 'bookie' in the Boston area known as 'Blinkie.' He denied in this connection that he acted as a 'lay off' man for Mr. Therrien's World Series bets.
The State also introduced other evidence descriptive of the betting activities in the 'Cue Stick Lounge.' They produced a exhibits certain records taken from Mr. Therrien and the analysis of these records by an expert, which indicated that Mr. Therrien in the first nine months of 1967 booked approximately $180,000.00 in various types of bets, of which sporting events composed in excess of $88,000.00. They introduced evidence of a delivery of money in the Boston area to a person known as 'Beachie' and there was evidence from two truck drivers of the delivery of unidentified envelopes at the Defendant's request, particularly to one Edgar Morin. Among the exhibits taken from Mr. Therrien at the time of the raid was a book in which the names 'Beachie,' 'Edgar Morin' and 'Arnold'...
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