Court of General Sessions of Delaware, New Castle County
Joseph Tollin was charged with violating statute making it an offense to own, keep, exhibit, use or be concerned in interest in keeping any gambling paraphernalia for purpose of receiving, recording, or registering bets on results of races. The Court of General Sessions for New Castle County, Carey, J., after an appeal from Municipal Court for the City of Wilmington, held that evidence was insufficient to authorize a conviction.
Judgment for defendant.
[46 Del. 121] 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 westepaper 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 key 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 [46
Del. 122] 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.
[46 Del. 123] 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.
Vincent A. Theisen, Deputy Atty. Gen., for the ...