State v. Harbourne

• Decision Date: 03 May 1898
• Parties: STATE v. HARBOURNE.
• Court: Connecticut Supreme Court

40 A. 179

70 Conn. 484

STATE

v. HARBOURNE.

Supreme Court of Errors of Connecticut.

May 3, 1898.

Appeal from district court, New Haven county; George H. Co well, Judge.

Information against John E. Harbourne for keeping a place in which the business of transmitting money for betting purposes was permitted and carried on, and for being unlawfully concerned in such business, brought to the city court of Waterbury, and thence, by defendant's appeal, to the district court of Waterbury, and tried to the jury. Verdict and judgment of guilty, and appeal by the accused for alleged errors in the charge of the court. No error.

Charles E. Perkins and Michael J. Keneally, for appellant.

Nathaniel R. Bronson, for the State.

HALL, J. The act creating the offense charged is directed against that form of gambling known as "pool selling," including bets or wagers on the result of any trial of speed, skill, or endurance. Pub. Acts 1893, p. 240. It prohibits (1) keeping any place with apparatus or devices for the purpose of carrying on such gambling; (2) keeping any place where pool selling of any kind, either directly or indirectly, is permitted or carried on; (3) keeping any place in which the business of transmitting money to any race track or other place there to be placed or bet on any horse race, etc., whether within or without this state, is permitted or carried on; (4) making any such wager, or buying or selling any such pools; (5) being concerned in buying or selling any such pools; (6) being concerned in carrying on the business of the transmission of money to any race track, etc. The defendant is charged in the first count with a violation of the third prohibition, and in the second count with a violation of the sixth. The defense relies on the alleged unconstitutionality of the act. The following case is presented by the record: "On the trial of the case to the jury, upon the plea of not guilty, the state claimed and offered evidence to prove that on the 28th day of January, 1897, the defendant, in the city of Waterbury, was employed by the New Jersey News and Electric Telegraph Company as the manager of its telegraph office there located; that, as such manager, he received from one —— a telegraphic message in the ordinary form used for transmitting messages, addressed to the Jersey City Commission Company, Jersey City, New Jersey, directing the said Jersey City Commission Company there to bet for tie sender of said message the sum of money named therein, and to draw upon Mills & Company, New York City, N. Y., for said money; that, at the time of delivery of said message to the defendant, the said —— deposited with the defendant said sum of money, to be by him transmitted by telegraph to Mills & Company, New York City, subject to the draft of the said Jersey City Commission Company; and that said telegraph message was by the defendant transmitted by telegraph to the Jersey City Commission Company, and said money was by the defendant transmitted by telegraph to Mills & Company; and that the defendant knew that the purpose in said transmissions was to have said money bet upon a horse race without this state. The state offered evidence of no other violation of the law. The defendant claimed, and offered evidence to prove, and claimed he had proved, that, in the receipt of said message and of said money, he was acting as the agent of his said employer, in the ordinary course of business of a telegraph company, engaged in the business of telegrapher of messages and moneys. The defendant admitted that he knew the purpose for which said money was sent and said message transmitted.

"The defendant, in writing, requested the court to charge the jury as follows: '(1) That if the jury shall find that the accused, as charged in the first count of the complaint of the prosecuting attorney, did possess, keep, manage, maintain, and occupy a certain room, office, and place in which the business of transmitting money to a certain race track or race tracks, or other places without this state, there to be placed or bet on certain horse races, games, and competitions, with full knowledge thereof, and that said keeping, possessing, managing, maintaining, and occupying was in the ordinary course of the business of a telegraph company, he is guilty of no offense against the laws of this state, as any statute of this state prohibiting such acts would be, and is, in violation of and against the provisions of the constitution of the United States vesting in the congress of the United States the power of regulating commerce between the states. (2) That if the jury shall find that the accused did in fact, as charged in the second count of said complaint, transmit (by telegraph) money from the city of Waterbury to a place without this state for the purposes alleged in this complaint, and that said transmission was in the ordinary course of the business of a telegraph company, he is not guilty of any offense against the laws of the state; and that a statute of this state which prohibits such act is void, being contrary to said provision of the constitution of the United States.' The court refused to so charge the jury, but did charge the jury as follows: 'That notwithstanding the jury should find that in the keeping, etc., of the place as set forth in the complaint, the accused kept said place for the ordinary purposes of a telegraphic business, yet, if the business of transmitting money for the pur poses charged in the complaint was carried on in said place, the accused was guilty of a violation of the laws of this state, and the statute prohibiting such act was constitutional; and that if the jury should find that accused did, as charged in the second count of said complaint, knowingly transmit (by telegraph) moneys from the city of Waterbury to a place without this state, to be bet upon a horse race, that the accused is guilty of a violation of the laws of this state, notwithstanding such transmission may have been in the ordinary course of the business of a telegraph company, and that the statute of this state prohibitive of such act is constitutional.'" To the court's refusal to charge as requested, and to the charge as delivered, the defendant duly excepted.

The case was submitted in this court on briefs. In that of the state, it is stated that "the facts are not disputed, nor is it denied that the statute concerning pool selling distinctly prohibits the act done by the accused. He claimed, however, that the law was unconstitutional. No other line of defense was adopted, and no 'evidence put in to confuse the issue." The brief filed by the defendant in reply commences thus: "It appears from the brief of counsel for the state that the only question in this case is that of the constitutionality of the act of 1893 (page 240 of the Public Acts of that year). He also admits that the act would be invalid as a restraint of interstate commerce, if it cannot be brought within the limits of the police power of the state. This limits the question to the precise point as to whether, under any claim of police power, the state can interfere with messages sent from one state to another, because the legislature thinks that the matters concerning which the messages are sent are such as it does not...