Commonwealth v. Smith

44 N.E. 503, 166 Mass. 370, 1896 Mass. LEXIS 146

• Court: Massachusetts Supreme Judicial Court
• Decided: June 15, 1896
• Status: Published

Opinion

Holmes, J.

The offence of being present where gaming implements are found, created by St. 1895, c. 419, § 9, is created by the words “ every person found ... so present shall be punished.” “So” refers back to the words “all persons present, ... if any . . . materials of any form of gaming are found in said place.” “ Said place ” by reference means a place which has been complained of under oath as a common gaming-house. But the words last quoted are used in that part of the section which authorizes an arrest on the complaint. When we come to the words constituting the offence, and first above quoted, it is plain that we must not take the word “so” literally, with the result of making it criminal to be in the same place with gaming implements if the place merely has been complained of as a common gaming-house. The place must be used unlawfully as a common gaming-house in fact. The word “ so ” is an abbreviation, and not so accurate an abbreviation as might be wished in a criminal statute, since it seems to have misled the pleader; but we are of opinion that the meaning is clear. Therefore it is material to allege that the place was “ unlawfully used as and for a common gaming-house.”

The allegation in the complaint before us is, “And so the said Denton . . . doth say that the said room, in manner and form aforesaid, was unlawfully used as and for a common gaming-house,” etc. It is argued for the defendant that the words “ and so ” import that the allegation following is a legal consequence of facts previously alleged; and that although there may be no objection to the form of expression as argumentative if the earlier allegations justify it, (Commonwealth v. Desmarteau, 16 Gray, 1, 16,) if they do not justify it the complaint must be quashed. Commonwealth v. Whitney, 5 Gray, 85, 86. The previous allegations here, after those which superfluously state the preliminary complaint and the warrant, are, in substance, that the present complainant, Denton, entered the room complained of and there found the defendant present at the time gaming implements were found by Denton in the room ; and that Denton seized the implements and arrested the defendant. All this might be true if the room was a chapel, if the defendant had been attending divine service, and if a thief had hidden the implements under a cushion in a remote corner of the place. It is not enough to warrant a conviction; it does not even amount to prima facie evidence under §§ 3, 4. The whole argument, it will,, be seen, turns on the effect of the words “ And so.” But the court are of opinion that the words as here used do not have the effect of limiting the following allegation to the legal conclusion from what precedes. They think that it sufficiently appears that the complainant intends to allege as a distinct substantive fact that the room was used as and for a common gaming-house.

The objection that the defendant and those indicted with him cannot be joined in one complaint, although plausible, seems to us unsound in view of the precedents. As was said of a different offence, the act is more analogous to the maintaining of a public nuisance than to those which necessarily are the separate acts of single persons. Commonwealth v. Sampson, 97 Mass. 407, 409. Commonwealth v. Weatherhead, 110 Mass. 175. See Commonwealth v. Warren, 161 Mass. 281.

It is unnecessary under the statute to allege the defendant’s knowledge of the presence of the implements or the character of the place. The statute means that people enter such places at their peril. It goes no further than other statutes which have been enforced by this court. When according to common experience a certain fact generally is accompanied by knowledge of the further elements necessary to complete what it is the final object of the law to prevent, or even short of that, when it is very desirable that people should find out whether the further elements are there, actual knowledge being a matter difficult to prove, the law may stop at the preliminary fact, and in the pursuit of its policy may make the preliminary fact enough to constitute a crime. It may say that, as people generally do know when they are selling intoxicating liquors, they must discover at their peril whether what they sell will intoxicate. Commonwealth v. Hallett, 103 Mass. 452. See Commonwealth v. Farren, 9 Allen, 489; Commonwealth v. Boynton, 2 Allen, 160. It may say that, if a man will have connection with a woman to whom he is not married, he must take the chance of her turning out to be married to some one else. Commonwealth v. Elwell, 2 Met. 190. See Commonwealth v. Murphy, 165 Mass. 66. In like manner it may say that people are not likely to resort to a common gaming-house without knowing it, and that they must take the risk of knowing the character of the place to which they resort, if the implements of gaming are actually present.

The evidence warranted a conviction. St. 1895, c. 419, §§ 2, 3, 4. These sections áre constitutional. Holmes v. Hunt, 122 Mass. 505, 516, 517. Crandell v. White, 164 Mass. 54, 60. Apart from them the evidence was competent, and leaves no reasonable doubt as to the character of the place. See Commonwealth v. Clancy, 154 Mass. 128; Commonwealth v. Healey, 157 Mass. 455. The mode in which the ticket was obtained did not make it inadmissible, even if the right of objecting to it had been reserved in the agreed facts, which is not the case. Commonwealth v. Ryan, 157 Mass. 403. Commonwealth v. Tibbetts, 157 Mass. 519. Commonwealth v. Hurley, 158 Mass. 159. Commonwealth v. Brelsford, 161 Mass. 61. We believe we have dealt with all the questions before us. Some others were argued, which are not open.

Exceptions overruled.

*

A similar decision was made on the same day in Suffolk, in the case of Commonwealth vs. Yee Mot & others.

Complaint, under St. 1895, c. 419, for being present where gaming implements were found. The averments of the complaint were substantially identical with those of the complaint in Commonwealth v. Smith, ante, 370. A motion to quash was filed in the lower court and in the Superior Court on appeal, assigning the same objections as those raised to the complaint in Commonwealth v. Smith. The Superior Court overruled the motion, and the defendants excepted.

The case was submitted to the Superior Court upon agreed facts, in substance as follows.

By. virtue of a search-warrant a police officer went, on January 25, 1896, to a room situated on premises on Harrison Avenue, in Boston, and there found several people, including the defendants, and a “fan-tan lay-out,” which consisted of gaming implements, two packs of playing cards, a large number of porcelain buttons, and a large number of colored circular porcelain disks such as are usually used for counting in gaming. No game was going on at the time. The defendants requested the judge to rule, (1) that on all the evidence all the defendants in each case should be acquitted; (2) that the statutes authorizing the search, and wherein the statutes make prima facie evidence the presence of gaming implements in the building a crime, and the presence of the defendants in the room when the same were found, are unconstitutional.

Richardson, J. declined so to rule, and instructed the jury that on the evidence they would be warranted in finding the defendants guilty.

The jury returned a verdict of guilty; and the defendants alleged exceptions.

P. J. Casey, for the defendants.

M. J. Sughrue, First Assistant District Attorney, for the Commonwealth.

Holmes, J. This case must follow the decision in Commonwealth v. Smith, ante, 370. Exceptions overruled..