State v. Mazzarella
| Decision Date | 21 December 1967 |
| Docket Number | No. 10807,10807 |
| Citation | 236 A.2d 446,103 R.I. 253 |
| Court | Rhode Island Supreme Court |
| Parties | STATE v. Albert Joseph MAZZARELLA. Ex. & c. |
This is a criminal complaint and warrant on which the defendant was tried in the district court of the twelfth judicial district. The complaint originally charged that he "did then and there engage in bookmaking and did record and register bets in violation of Section 11-19-14 of the General Laws of Rhode Island, 1956." From a conviction in the district court on both counts, defendant seasonably appealed for a trial de novo in the superior court as provided in G.L.1956, § 12-22-1. See State v. McGuire, 90 R.I. 301, 157 A.2d 657 (1960). The case is before us on the defendant's bill of exceptions.
When the case came on for a trial before a jury in the superior court, counsel for defendant objected that the complaint was duplicitous in that it alleged two separate offenses. After some discussion, counsel for the state moved to amend the complaint by dropping the words "and there engage in bookmaking and did." The case then proceeded to trial on the charge that defendant "did then record and register bets in violation of Section 11-19-14 of the General Laws of Rhode Island, 1956."
In this regard, it is important to note that the complaint as thus amended charged that defendant "did then record and register bets" whereas the statutory offense as set forth in § 11-19-14 is "who shall record or register bets ***." (italics ours) Clearly, the legislature intended to make either recording or registering a criminal offense, and proof of either in the case at bar would be sufficient, defendant not having moved, prior to trial, to amend the complaint so as to conform with the statutory language. See State v. Cucca, R.I., 228 A.2d 572 (1967), and State v. Douglas, 78 R.I. 60, 78 A.2d 850 (1951).
The evidence for the state establishes that defendant on July 11, 1963, and for some time prior thereto, was the owner and operator of the Club Royal in the city of Woonsocket. On the day in question a state police officer, hereafter referred to as Miller, who was present in the guise of a patron, observed another patron, hereafter referred to as Roderick, write on a matchbook cover which he then handed to defendant. The police officer had been present on prior occasions, and presumably reported to his superiors that there was evidence of bookmaking. In any event, pursuant to a previously arranged signal, state police officers armed with a search warrant raided the premises and placed defendant under arrest. During the search which ensued, one half of a matchbook cover on which was recorded a bet, was found on the floor behind the bar. The other half, on which a bet was also written, was found on the bar. The searching officers also found Armstrong sheets and ashtrays one of which contained burnt slips of paper. Additionally, the officers found a large sum of money on defendant's person. Exceptions were taken to the admissions of this evidence on the ground that the evidence related only to the charge of bookmaking which had been quashed on the state's motion.
Testifying for defendant, Roderick acknowledged that he had written on the matchbook cover, but flatly denied that he ever gave it to defendant. Rather, he insisted that prior to the arrival of the police he had torn the matchbook cover in two and with the entry of the police, threw the piece on the floor while the larger portion remained on the bar. Based on this testimony, defendant requested that the trial justice charge the jury that to convict defendant of the offense for which he was being tried, they must find that
The trial justice refused to give this instruction, and in fact charged that defendant could be found guilty even if Roderick had made the notations on the matchbook and then delivered it to defendant who accepted it as a bet.
The first of fourteen exceptions brought on the record and pressed by defendant is to the refusal of the trial justice to charge as requested. In support thereof, defendant relies heavily on People v. Lambrix, 204 N.Y. 261, 97 N.E. 524 (1912). There, although considered in another posture, the New York court held that to be convicted of recording or registering a bet, it would be necessary to prove that the accused personally made the writing relied on, or directed its writing by another. The court based this conclusion on the proposition that it would necessarily follow that the writing of a bet by the bookmaker and delivering the slip to the bettor would make the latter...
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