[53 Del. 418] John Merwin Bader, Wilmington, for appellant.
Charles L. Paruszewski, Deputy Atty. Gen., for the State.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
[53 Del. 419] This is an appeal from a conviction in the Superior Court on a charge of violating 11 Del.C. § 661.
On October 29, 1959, at the instigation of the police, one McCray gave the defendant twenty-five cents to be played on numbers 786 and 789. The defendant accepted McCray's money but did not in exchange give him any slip, ticket or receipt as evidence of his play on the said numbers.
Thereafter, the defendant was arrested and charged in the Municipal Court of Wilmington with violation of 11 Del.C. § 661, which reads as follows:
'Whoever sells or disposes of, or has in his possession with intent to sell or dispose of, any lottery policy, certificate, or anything by which such person or any other person promises or guarantees that any particular number, character, ticket, or certificate, shall in the event, or on the happening of any contingency in the nature of a lottery, entitle the purchaser or holder to receive money, property, or evidence of debt; or
'Whoever uses or employs any other device by which such person, or any other person, promises or guarantees as provided in the first paragraph of this section----
'Shall, for a first offense, be fined $100 and in default of payment imprisoned 1 month; and, for a second and all subsequent offenses, be fined $100 and imprisoned not less than 1 nor more than 2 months.'
After conviction, defendant appealed to the Superior Court. An information identical in language with that in the Municipal Court was filed. This information is in the following language:
'Bruno Pepe on the 29th day of October, 1959 in the County of New Castle did accept a play of twenty-five cents on the numbers 769 and 786 from Dennis McCray, contrary to Title 11, Section 661 of the Delaware Code of 1953.'
[53 Del. 420] Following his conviction in the Superior Court, defendant took this appeal, and raised three points for our consideration. The three points are as follows:
1. That there can be no violation of 11 Del.C. § 661, unless a ticket or its equivalent is issued to the person making a wager on a number.
2. That the information filed against the defendant is fatally defective.
3. That the trial court abused its discretion in permitting the State to reopen its case after resting in order to present additional evidence to show that the transaction between the ...