Opinion
No. 4139.
Decided December 2, 1952.
In complaints for keeping a place resorted to for gambling (R.L., c. 447, s. 6) the fact that there was gambling going on at the particular place and time is not sufficient to sustain a conviction, the jury must also find under proper instructions that the respondents did keep a place resorted to for such purpose. In the statute (R.L., c. 447, s. 6) providing that no person shall keep any house, shop or place resorted to for the purpose of gambling, the word "keep" implies a series of acts, and the words "resorted to" taken in their usual sense, mean that the place is habitually or frequently used. In a criminal action testimony relating to the circumstances under which the respondents and others were arrested was properly admitted in the Court's discretion.
COMPLAINTS, against James A. Harkeem and John J. Jadda under R.L., c. 447, s. 6, for keeping a place resorted to for gambling. Trial by jury resulting in a verdict of guilty against both respondents. During the trial the respondents excepted to the admission of evidence and to portions of the argument and the Court's charge. It appeared on the night in question several police officers raided the premises leased by the Blue Jay Social Club of which one of the respondents was president and the other treasurer. The officers found present a group of men including the respondents, standing around a table which had on it a cigar box containing money, dice and dice cups. The men scattered when they saw the officers. There was testimony that both respondents told the officers that they took out a charter to form the Blue Jay Social Club and started babout games three months earlier. Sometimes they played in these babout games and sometimes they raked, taking two and one-half per cent of all bets made. They operated the game two or three nights a week, on a table which they had made for the purpose after buying the material. The respondents informed the of fleers that the babout game was played for money by throwing dice. It did not appear that either respondent was playing that night. Other facts are given in the opinion. Transferred by Wheeler, J.
Gordon M. Tiffany, Attorney General and Conrad Danais, County Solicitor (Mr. Tiffany orally), for the State.
Robert J. Doyle (by brief and orally), for the respondents.
It is contended that there must be a new trial because the Court charged the jury that if they were "satisfied beyond a reasonable doubt that there was gambling going on as I have defined it on the night in question in the Blue Jay Social Club . . .," then it "was a place resorted to for such a purpose within the meaning of section 6, chapter 447. That is the only question for you to decide." Revised Laws, chapter 447, section 6 provides that "No person shall keep any house, shop, or place resorted to for the purpose of gambling . . . ." The basis of the exception here seems to be that the Trial Court took from the jury the question of fact whether the respondents did keep a place resorted to for the purpose of gambling. This, we believe, was the effect of the charge and, therefore, the exception is well-founded. The word "keep" implies a series of acts. State v. Prescott, 33 N.H. 212, 214; 51 C.J.S. 425, 426. So too, the words "resorted to" taken in their usual sense (R. L, c. 7, s. 2) mean that the place was habitually or frequently used. The Leme, 77 F. Supp. 773, 777; 77 C.J. S, Resort, 315, 316. When these words are used together as here, we believe the intent of the Legislature is unmistakable. State v. Cieri, 128 Conn. 149. While there was sufficient evidence to warrant a finding that the respondents kept a place resorted to for gambling, the jury should have been allowed to pass on this question of fact.
The respondents also excepted to the testimony of a police officer that they and eleven other persons who were present at their place, the Blue Jay Social Club, to which they allegedly resorted for gambling, were arrested. The record shows that the officer was merely testifying as to what happened in the course of a raid in which he participated, and as such the evidence was proper. Cf. State v. Peters, 90 N.H. 438, 440, 441. This testimony was relevant as corroborative of the respondents' presence at the club at the time of their arrest. The State is proceeding under R.L., c. 447, s. 6, which makes it an offense to keep a place resorted to for gambling. Section 9 of the same chapter requires that all persons found present at such a place "shall be taken before a magistrate and there dealt with according to law." It was proper for the State to show that the persons present were taken into custody, pursuant to section 9, as bearing on the integrity of its case. Whether this competent evidence should have been excluded as tending to excite undue prejudice was a question of fact for the Trial Court and the exception must be overruled. State v. Iacavone, 85 N.H. 207, 210. This appears to dispose of all exceptions of merit and the order is
New trial.
All concurred.