State v. Hindle, 661-E
| Decision Date | 09 April 1971 |
| Docket Number | No. 661-E,661-E |
| Citation | 108 R.I. 389,275 A.2d 915 |
| Court | Rhode Island Supreme Court |
| Parties | STATE v. Harold Swanson HINDLE. x. &c. |
This is an indictment which charges a violation of G.L.1956, § 11-19-18. 1 The case was tried to a Superior Court justice and a jury which returned a verdict of guilty as charged. It is before us on the defendant's bill of exceptions, which includes, inter alia, exception to the denial of his motion to quash. Because of the view that we take of this exception, discussion of the other exceptions is unnecessary.
On March 3, 1967, several members of the Rhode Island State Police entered and searched defendant's home and garage, having first obtained a warrant therefore from the justice of the then Tenth District Court. In the course of their search, the officers found and seized racing sheets, so-called, written evidence of wagers or number pools, a radio and a telephone. The latter was seized because it rang repeatedly while the officers were present and when answered by one of them, the callers would give the names of horses, race track and the sum desired to be wagered. In defendant's garage the officers found and seized several hundred thousand lottery or policy slips.
Significantly, it is undisputed that defendant was alone in his home throughout the search and that there was no evidence, other than the telephone callers, of any other person gambling or offering to gamble on the premises.
In the Superior Court, defendant made several contentions, as he did before us, in connection with his motion to quash the indictment. Among these is the contention, in substance, that the total evidence adduced as a result of the search and seizure was legally incompetent to support the offense contemplated by the Legislature in its enactment of § 11-19-18. This section, he contends, was enacted to make unlawful the keeping or maintaining of a room or place where gambling would be carried on by persons assembled in such room or place for that purpose. It was not intended by § 11-19-18, he argues, that one conducting such bookmaking and number pool wagering operations, as the evidence in the instant case tended to prove, would be guilty of the offense charged by said section. Rather, he argues, that such evidence, if accepted, would be applicable to §§ 11-19-14 and 5.
In rejecting this contention the Superior Court justice placed emphasis upon a consideration of the authority of the Legislature to make the conduct established by the evidence adduced against defendant a violation of § 11-19-18, citing State v. Kofines, 33 R.I. 211, 80 A. 432. From a reading of his decision it seems clear that the rationale of the trial justice resulted from defendant's stressing the felonious aspects of § 11-19-18 as contrasted with the misdemeanor aspects attributable to first offenders under §§ 11-19-14 and 5. So emphasized, the Superior Court justice correctly held that it was within the Legislature's police power to make the conduct with which defendant was charged a felony if in the judgment of the General Assembly public policy would be best served.
There can, of course, be no quarreling with the trial justice's rationale in this regard. However, it misconceives the real import of defendant's contention. He does not challenge the constitutionality of § 11-19-18. Conceding that the General Assembly in its wisdom could have included the conduct evidenced by the search within the prohibition of § 11-19-18, he argues that from the chronological history of the latter section and §§ 11-19-14 and 5, it is clear beyond a doubt that the conduct with which he is charged was either never an offense within the meaning of § 11-19-18, or if it were, the Legislature subsequently provided otherwise.
This brings us then to a consideration of the legislative history and a comparison of the provisions of the three sections involved. Section 11-19-18 was originally enacted at least 37 years before §§ 11-19-14 and 5. What is § 11-19-18, the offense for which defendant was indicted and tried, appears in section 5 of chapter 218 of title 30 of the revised statutes of 1857. There would seem to be little doubt of its enactment at an even earlier date, but the date of its original enactment has not been brought to our attention by the parties, nor has our independent research proved more revealing.
Be that as it may, the offense as it appears in the revised statutes of 1857 is in no significant particular different from that set forth in § 11-19-18. 2
The original precursors of §§ 11-19-14 and 5 were first enacted by P.L.1894, chap. 1280, sec. 1 and chap. 1316, sec. 1 respectively. A comparison of their provisions with those of §§ 11-19-14 and 5 discloses that as in the case of revised statutes 1857, title 30, chapter 218, section 5, vis-a-vis § 11-19-18, there has been no amendment of significant materiality.
It is essential at this juncture to point out that the thrust of the state's case against the instant defendant is that he kept a room or place to be used for the purpose of gambling or for the purpose of keeping or exhibiting any devices, implements or apparatus whatsoever to be used in gambling.
In connection with this, the state points to the seizure of the racing forms and the evidence of telephone calls made by persons betting on horses, and the seizure of other written evidence of number pool operations as well as thousands of number policy slips found in the garage.
Since, following defendant's reasoning, the specific offense with which he is now charged by the state was in existence is 1857, the Legislature must have enacted the precursors to §§ 11-19-14 and 5 in 1894, for one of two reasons. These are either that the conduct which the state's evidence tends to prove was never considered by the General Assembly to be a violation of an existing law or that if it were, the Legislature intended to provide for a less harsh penalty for the conduct with which he is now charged. 3
We think that there is merit in such reasoning. When § 11-19-18 is read in this light, moreover, it lends persuasiveness to defendant's principal contention, namely that the 'building, room, booth, shed' referred to in § 11-19-18, contemplates a place designed for people to assemble for the purpose of gambling therein. Clearly, the instant defendant's premises were not put to such purpose and, in our judgment, the unlawful use that he is alleged to have made of them does not constitute a violation of the section under which he was indicted.
In reaching this conclusion we are not unmindful of prior decisions of this court cited by the state, most apposite among which is State v. Picillo, 105 R.I. 364, 252 A.2d 191. While it is true that in Picillo, defendant's conviction for a violation of § 11-19-18 was upheld by this court on a showing of conduct very similar, if not identical to that attributed to the instant defendant, there was not raised for our consideration in Picillo the question of legislative intendment on which our decision here turns. Rather, Picillo sought to establish that § 11-19-18, was constitutionally defective. Contrariwise, the instant defendant acknowledges that the conduct with which he is charged could have been made a violation of § 11-19-18, the constitutionality of which he does not challenge but that in fact the Legislature saw fit to provide otherwise.
The defendant's exception to the denial of his motion to quash is sustained, and the case is remitted to the Superior Court for further proceedings.
Appendix A
11-19-18. Keeping of gambling places or devices-Acting as dealer, banker, or lookout.-Every person who shall keep or suffer to be kept any building, room, booth, shed, tent, arbor, or any other place, or any automobile, bus, coach, van, truck, trainer, railway or railroad car, or any other vehicle in any city or town of this state, or in any vessel,...
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