Summary
In Tollin v. State, 7 Terry 120, 78 A.2d 810, it was held that the forerunner of this statute barred testimony of telephone calls heard by listening on the defendant's receiver.
Summary of this case from Riley v. StateOpinion
January 31, 1951.
CAREY, J., sitting.
Vincent A. Theisen, Deputy Attorney-General, for the State.
Edmund N. Carpenter, II (of the firm of Richards, Layton and Finger) for defendant.
Appeal from the Municipal Court for the City of Wilmington.
The information charges the defendant with being unlawfully concerned in interest, on May 9, 1950, in keeping certain paraphernalia for the purpose of receiving and recording bets upon the result of horse racing. The paraphernalia is described in the following words: "one electric clock, one waste-paper basket with ticker tape, one bundle of ticker tape, two packages of new tape, one telephone book, one wooden board with tape pinned on it, one microphone, one sound system, one fifteen key switchboard, four chairs, four tables, one wooden box with twenty holes and two amplifiers, one Western Union ticker machine, serial No. 11408, one large cardboard box filled with ticker tape, various papers, twenty-five telephones and two kep and lamp telephone switches".
The statute involved is 4063, Sec. 168, Revised Code of Delaware 1935, which reads as follows:
"4063. Sec. 168. Contest Of Skill, Speed Or Power Of Endurance; Keeping Books Or Devices For Recording c. Bets Or Wagers; Recording Bets Or Wagers; Ownership Or Occupancy Of Premises Where Same Is Done; Misdemeanor; Penalty: — Whoever keeps, exhibits or uses, or is concerned in interest in keeping, exhibiting or using, any book or books, device, apparatus or paraphernalia, for the purpose of receiving, recording, or registering bets or wagers upon the result of any trial, or contest, in the State of Delaware, or elsewhere, of skill, speed or power of endurance of man or beast; and any owner, lessee or occupant of any room, house, building, enclosure, or place of any kind, who keeps, exhibits, uses or employs therein, or permits or allows to be kept, exhibited, used or employed therein, or who is concerned in interest in keeping, exhibiting, using or employing therein any book, or books, device, apparatus or paraphernalia, for the purpose of receiving, recording or registering such bets, or wagers, or of forwarding in any manner any money, thing or consideration of value for the purpose of being bet or wagered upon the result of any trial or contest as aforesaid; and whoever records or registers such bets, or wagers, or receives, contracts, or agrees to receive any money or thing of value for the purpose, or with the intent to bet or wager, for himself or any other person or persons, such money or thing of value, or any part thereof, or the equivalent thereof, or of any part thereof, upon the result of any trial or contest in the State of Delaware, or elsewhere, of skill, speed or power of endurance of man, or beast, or is concerned in interest therein, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not exceeding Two Thousand Dollars, or imprisoned for a term not exceeding two years, or both, in the discretion of the Court; provided that the provisions of this Section shall not apply to any bet or wager made upon any horse race and made within the enclosure of any race meeting licensed and conducted under the laws of this State, and made by or through the means of a pari-mutuel or totalizator pool, the conduct of which is duly licensed by the Delaware Racing Commission, which exception need not be negative in any indictment or information.
"The Municipal Court for the City of Wilmington shall have concurrent jurisdiction of the violations of this Section committed within the corporate limits of the said City of Wilmington."
By stipulation the case was tried without a jury. The State introduced evidence tending to show that the defendant was the manager or supervisor of the operations of a corporation known as Delaware Wired Music Co., Inc. (herein called "Delaware"), whose business was the dissemination of music and sports news over telephone wires. Most of its music transmission equipment was located at 835 Tatnall Street in Wilmington and its "sports" equipment at 839 Tatnall Street. The music service was furnished to restaurants and cafes for the entertainment of patrons.
Sports information was received over a Western Union teletype machine. By means of a microphone and an amplifying system, it was read through a number of telephones to various subscribers or customers. These customers paid a weekly sum for the information. They were given a code number for identification purposes and were permitted to call in for sports information. If certain specific facts were wanted, a switch board operator gave them. However, an unlimited subscriber would, on request, be connected with one of the telephones on the amplifier system and could listen as long as he desired. The sports information system operated from one o'clock in the afternoon until about six or seven o'clock in the evening. Most of the news concerned horse racing at various tracks throughout the country.
On May 9, 1950, police officers made simultaneous raids upon the premises at 839 Tatnall and an establishment on Orange Street in possession of two men named Episcopo, who were known by the police to be bookmakers and who were later convicted of a gambling charge resulting from this raid. The State's evidence indicated that a telephone in the Episcopo establishment was, at the moment of the raid, connected to one in the amplifier system at 839 Tatnall.
A number of written contracts for "sports" service were introduced into evidence, showing an agreement to pay Delaware twenty dollars per week for "limited service" or thirty dollars per week for "unlimited service". These agreements were purportedly signed by individuals whom the police were unsuccessful in locating, with one or two exceptions.
Court of General Sessions for New Castle County, No. 70, September Term, 1950.
When the raiding party entered the Episcopo premises on May 9, an officer immediately picked up the telephone and heard a message coming over the wire. On the witness stand, this officer was asked to state the contents of that message. Defense counsel objected because of Code Section 5232 reading in part as follows: "5232. Sec. 52. Injury to Telegraph or Telephone Property; Disclosure of Messages, etc.: Any person or persons * * * who shall read, take copy, make use of, disclose, publish or testify concerning, any dispatch or message, communication or report intended for another passing over such telegraph or telephone line, wire, or cable, in this State * * * shall be deemed guilty of a misdemeanor * * * Provided, that nothing in this Section shall apply to an employee or authorized agent of a telegraph or telephone company."
The State contended that this statute was not intended to apply to police officers and, in any event, should apply only to messages heard as a result of wire tapping and not to one merely intercepted as in this case. The objection was sustained since Section 5232 refers to any person or persons except employees of a carrier, making it a misdemeanor to testify concerning any message intended for another. This interpretation is fortified by a comparison with Code Section 5230, which shuts the mouths of a carrier's employees, but which expressly permits them to produce a message in answer to lawful process. See Nardone v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314 . The foregoing ruling is based, not upon any constitutional consideration, but upon the express wording of the statute.
At the end of the State's case, defendant's counsel moved for a verdict of not guilty on the ground that a prima facie case had not been made out. In the course of the argument, there was some discussion as to the meaning of the term "concerned in interest". There is no necessity for defining that expression here, for, under any definition which has been suggested, certain statements or admissions made by Tollin to the police officers immediately after the raid would justify the conclusion that he was "concerned in interest" in keeping the paraphernalia listed in the indictment, even though it was technically owned by, or leased to, the corporation. The problem presented is, rather, whether that equipment was kept "for the purpose of receiving and recording bets upon the result of a contest of speed of beasts". The equipment specified in the information was all located at 839 Tatnall Street; it was not charged that Tollin had any interest in any equipment in the Episcopo establishment. Concededly, no bets were received or recorded at the premises of Delaware. The paraphernalia itself is not made or designed specifically for gambling purposes, as contrasted with devices like roulette wheels and slot machines. Actually, the evidence showed that the only use made of this equipment was the transmission of news. This information was obviously of great help to those who receive or place bets, since it included not only racing results but also last-minute details prior to a race. Moreover, I am not so naive as to believe that Tollin did not realize the news was being used by others to facilitate gambling. But, notwithstanding that knowledge on his part, is it a violation of the quoted statute merely to disseminate such news, without more? Several Courts, under somewhat similar statutes, have answered this question in the negative. People v. Brophy, 49 Cal.App.2d 15, 120 P.2d 946; People v. Corica, 55 Cal.App.2d 130, 130 P.2d 164; Hagerty v. Coleman, 133 Fla. 363, 182 So. 776; Commonwealth v. Western Union Telegraph Co., 112 Ky. 355, 67 S.W. 59, 57 L.R.A. 614; Pennsylvania Publications, Inc. v. Pennsylvania Public Utility Commission, 349 Pa. 184, 36 A.2d 777, 153 A.L.R. 457; see annotation in 153 A.L.R. 463. Under a mandate requiring gambling statutes to be liberally construed in favor of the State, the Arkansas Court took a contrary view in Albright v. Muncrief, 206 Ark. 319 , 176 S.W.2d 426.
The state suggested that a distinction should be drawn between public utilities and private persons, citing Commonwealth v. Ambrosius Industries, Inc., 312 Ky. 95, 226 S.W.2d 537. I can see no reason for any such distinction.
The writer has previously pointed out that in Delaware a criminal statute is to be strictly construed against the State. State v. Johnson, 4 Terry 294, 46 A.2d 641. No exception to this rule exists in favor of gambling laws. Following the majority rule, therefore, the conclusion is that the mere dissemination of racing information, with nothing more, is not a violation of the Act; only by a strained interpretation could the existing law be said to prohibit it; a closer relationship to the gambling transaction must be shown in order to convict. That restrictions upon this kind of activity would be of great help in suppressing illegal betting is clear; but the desirability, nature and extent of regulatory action rests with the lawmaking authorities, subject to constitutional limitations. At least two states have adopted legislation expressly imposing restrictions upon it. See Parkes v. Bartlett, 236 Mich. 460, 210 N.W. 492, 47 A.L.R. 1128; State v. McLaughlin, 132Conn. 325, 44 A.2d 116.
The State did undertake to show that Tollin was directly connected with bookmaking activities, and was using the paraphernalia in furtherance thereof. The evidence failed to meet the standard required in criminal cases. As a trier of fact, I was not convinced that the admissible evidence was sufficient to prove the defendant's guilt beyond a reasonable doubt. I therefore saw no occasion to require defendant to present any testimony and a verdict was entered in his favor.
It is perhaps proper to mention one phase of the testimony on the last mentioned point. The State attempted to show that the fees mentioned in the written contracts were wholly fictitious and that the amounts actually paid to defendant or to Delaware varied in proportion to the amount of booking done by a customer each week. Had this been demonstrated by competent evidence, I should have had no hesitancy in inferring a definite connection of the defendant with bookmaking activities, and would have required him to go forward with his defense. In order to establish the point, the State called to the stand certain individuals who were asked several questions about their relations with Tollin and Delaware. With the exception of one (who said that he had never paid more than the stipulated price), all denied having ever purchased the news service or having had any transactions of any sort with either the defendant or the corporation. In a few instances, counsel pleaded surprise and propounded questions about recent conversations between the witnesses and the prosecuting attorney in the presence of some police officers. Those so questioned denied having previously told a different story. The police officers, however, testified that these men had orally given to the attorney in their presence a statement which would indicate that they had bought the service and had paid varying amounts for it far in excess of the contract price, the exact figure depending upon the business done by them. Evidence concerning these alleged extrajudicial statements was admissible only for the purpose of discrediting the witnesses and not as substantive proof of the subject matter as against the defendant. State v. Hopkins, 6 W.W. Harr. 194, 172 A. 841; In re Kemp's Will, 7 W.W. Harr. 514, 186 A. 890; Ellis v. United States, (8 Cir.) 138 F.2d 612. There was, accordingly, no affirmative evidence in the record to support the contention.