Opinion
No. 4998.
Submitted December 6, 1961.
Decided January 29, 1962.
1. A violation of the gambling statute (RSA 577:7) was not established by evidence that the respondent accepted and bet money of another at the pari mutuel window at Rockingham Park on the particular horses in the particular races specified by the other since pari mutuel betting at such park is permitted by statute (RSA ch. 284).
Transfer of question of law by the Concord municipal court under RSA 502:24.
The questions of law transferred by agreement of both counsel are whether the complaint was legally sufficient and charged a crime under RSA 577:7, and whether the defendant's motion to dismiss at the close of the evidence should be granted.
The material portions of the complaint allege that the defendant on July 14, 1951, at Concord "at about 11:18 o'clock in the daytime, Daylight Saving Time, of the same day, near the northwest corner of Pleasant and Main Streets, in front of Number 3 North Main Street, in said Concord, did accept lawful monies of the United States of America, to-wit, a five ($5.00) dollar bill, from Raymond E. Banks, Sr. and did enter into an agreement with said Raymond E. Banks, Sr. to dispose of four ($4.00) dollars of said monies by betting the same for said Raymond E. Banks, Sr. on the outcome of horse races, on said date at Rockingham Park in Salem, New Hampshire whereby an expectation of gain by luck or chance was made an inducement to pay over ($4.00) dollars of said monies to said respondent, and the remaining one ($1.00) dollar to be retained by said respondent for his `troubles,' this being in violation of the Revised Statutes annotated, Chapter 577, Section 7."
Transferred by Donald G. Matson, justice of the municipal court of Concord.
Maurice J. Murphy, Jr., Attorney General, Frederic T. Greenhalge, Assistant Attorney General and Paul A. Rinden, county attorney, for the State, furnished no brief.
Robert D. Branch for the defendant.
RSA 577:7 provides: "GAMING. No person shall gamble, or bet on the sides or hands of such as are gambling or playing at any game, or shall loan or advance any money or thing of value to any person to aid in gambling."
"A bet or wager on a horse race is a gambling contract which is prohibited by our statute (R. L., c. 447, s. 7 [now RSA 577:7]; McQuesten v. Steinmetz, 73 N.H. 9) except as pari mutuel horse racing and gambling is permitted and regulated by statute." State v. Del Bianco, 96 N.H. 436, 437.
Although the complaint appears to be sufficient on its face, the undisputed evidence was that the defendant bet the four dollars for Banks at the pari mutuel window at Rockingham Park on the particular horses in the particular races specified by Banks. Pari mutuel betting at Rockingham Park is permitted by statute (RSA ch. 284) and the evidence failed to establish any violation of RSA 577:7.
The defendant's motion to dismiss the complaint should be granted.
Remanded.
All concurred.