Appeal from Superior Court, Maricopa County; H. C. Kelly, Judge.
Frank Pelosi, Joe Dean Davis, and Irvin Kaslow were convicted of violating statute making betting on result of a horse race illegal, and they appeal.
Whitney, Ironside & Whitney and Leslie C. Hardy, all of Phoenix, for appellants.
Evo De Concini, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen., and Edward Jacobson, Asst. Atty. Gen., for appellee.
La Prade, Justice. Stanford, C. J., and Udall, J., concur.
La Prade, Justice.
[68 Ariz. 54] This is an appeal from judgments pronounced and entered in the superior court of Maricopa County following verdicts of a jury finding appellants guilty of violating chapter 85, Session Laws 1945 (section 73-1607a Cum. Pocket Supp. Ariz. Code 1939), which provides as follows:
"73-1607a. Penalty. -- All forms of wagering or betting on the result of a horse-race or dog-race, except as provided by law, whether conducted in this state or elsewhere, shall be illegal. Any person directly or indirectly involved in such wagering or betting whether in placing or making a bet or wager for himself or as a book-maker shall be guilty of a misdemeanor."
The information charged appellants jointly in thirty separate counts of violating the above statute. The first count is typical of all the counts of the information. It charges as follows:
"The said Frank Pelosi, Joe Dean Davis and Irvin Kaslow on or about the 2nd day of December, 1946, * * * did then and there wilfully and unlawfully wager and bet on the results of a horse race, to-wit; did accept, take and receive as a bookmaker, the sum of One ($ 1.00) Dollar from one John E. Thomson, as a wager upon a horse named 'Fire Power' further designated by the defendants as number 429, entered in a race to be run on that day at Tropical Park race track in the State of Florida, in violation of Section 73-1607a, A.C.A.1939; * * *"
The several counts have their origin in bets made by John E. Thomson on nineteen days in December and eleven days in January. Mr. Thomson testified that he had been employed by the attorney general to investigate the establishment of appellants to secure evidence as to its unlawful operation. Relying on information secured, the attorney general, on January 14, 1947, filed a complaint, in behalf of the state, in the superior court of Maricopa County, seeking to abate as a public nuisance the gambling house maintained by appellants. A temporary restraining order was requested and issued, enjoining and restraining appellants from conducting or permitting the continuance of the nuisance on the premises referred to in the complaint. These premises are in the block directly across from the county courthouse. Three of the sheriff's deputies, accompanied by the attorney general, three of his assistants, and several newspaper reporters and photographers, proceeded to the premises to serve the temporary restraining order. Deputy Sheriff LaMore entered the premises first and served the restraining order upon Mr. Pelosi, who was engaged in "calling" the progress of a race for the benefit of 35 or 40 patrons present. Mr. LaMore at this time took possession of a money bag into which he had seen Mr. Pelosi insert currency [68 Ariz. 55] and papers. With reference to conversation concerning taking the bag without first inventorying its contents, Mr. LaMore testified: "He (referring to Pelosi) said 'It is locked. We won't worry about that. It is all right. I got the key. You got the bag.' I said 'That is good enough for me.'" "Scratch sheets" and other paraphernalia were gathered up and taken away. The newspaper photographers took pictures of the interior of the building, depicting the walls, tables, telephones, etc. Mr. LaMore further testified that while Mr. Pelosi was reading the temporary restraining order one of the patrons of the place approached him with money in his hand and attempted to place a wager.
At the time of arrest of appellants, the officers were not in possession of a warrant of arrest for any of appellants nor of any search warrant for the premises. Appellants, prior to trial, filed a petition to return and suppress the use of all the evidence claimed to have been unlawfully seized at time of arrest, which was denied. Over objection of appellants, all paraphernalia that had been seized, the money bag, and the photographs were admitted in evidence. Counsel for the state and the court requested of counsel for appellants that the key to
the locked money bag be produced, which request was not acceded to, appellants making the objection that to force them to produce the key would be to compel them to give incriminating testimony. Thereupon the court directed the clerk of the court to cut the bag open, and the contents, consisting of a large packet of bills and some coins, were exhibited to the jury.
Prior to trial a motion to quesal the information was filed and denied. The case was tried before a jury composed of men and women. After verdicts of guilty had been returned, appellants filed a motion for a new trial and a motion in arrest of judgment, both of which were denied.
To secure a reversal of the judgments appellants have made six assignments of error, supported by appropriate propositions of law, which will be considered in the order presented. The information and each count thereof is challenged upon the ground that it does not charge the commission of an offense.
The first contention is that it is the placing or making of a bet or wager on the result of a horse race conducted within or without the State of Arizona that is illegal under section 73-1607a, supra. It is argued that the offense cannot be completed unless the race is "conducted," meaning, of course, that the race upon which the wager or bet is made must be run, and that the words "result" and "conducted" employed in the statute are indispensable in determining when the offense denounced by the statute is committed.
Each count of the information alleges that appellants "did accept, take and receive as a bookmaker * * * as a wager upon a horse * * * entered in a [68 Ariz. 56] race to be run * * *." (Emphasis supplied.) Appellants contend that the allegation that a wager or bet was made upon a race "to be run" falls short of the statute which makes it a criminal offense only when the wager or bet is made "on the result" of a horse race which is "conducted." The interpretation contended for is that there must be a completed race coupled with a bet or there is no offense, and that the winning or losing of money is the evil sought to be suppressed. We think that the evil sought to be suppressed is wagering and betting and not the winning or losing of a stake. The offense is "all forms of wagering or betting." It is the wager or bet which is illegal and it is immaterial that the race is never run. Certainly no bets would be made after the race had been run. Gambling is carried on even before the showdown in a card game; before the winner is determined the participants have been gambling. 38 C.J.S., Gaming, § 81.
The second objection to the information is to the effect that it is the placing of a bet rather than the receiving of a bet that is prohibited. It is true that the offense denounced by the statute is "in placing or making a bet or wager." The information alleges that the appellants "did accept, take and receive, as a bookmaker, the sum of One ($ 1.00) Dollar * * * as a wager * * *." A bookmaker when he receives a bet, or accepts a bet, or takes a bet, must of necessity make a bet. In overruling the motion to quash the information, the trial court was not extending the meaning of the language of the statute to include all acts cognate to those actually condemned. Counsel for appellant suggest that if we hold that the receiving of a bet necessarily implies the making of a bet we are thereby creating a constructive crime by the aid of inference and implication, such as was denounced in State v. Behringer, 19 Ariz. 502, 172 P. 660. It is not necessary that an information be in the exact language of the statute. It is sufficient if it contains language of the same import. Gutierrez v. State, 44 Ariz. 114, 34 P.2d 395. The interpretation contended for is repugnant to the spirit and letter of the statute.
The second and third assignments complain of the ruling of the trial court denying the petition to return and suppress the use of the evidence allegedly unlawfully seized. By these assignments appellants assert that the seizure of the exhibits and their introduction in evidence was in violation of the following provisions of our State Constitution:
Art. 2, Sec. 4. "No person shall be deprived of life, liberty, or property without due process of law."
Art. 2, Sec. 8. "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
Art. 2, Sec. 10. "No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense."
[68 Ariz. 57] It is asserted that the search and seizure had its inception in the issuance and service of the temporary restraining order in the civil action, and that the arrest and prosecution was for misdemeanor offenses not committed in the presence of any of the arresting officers. Appellants lose sight of the fact that at the time of arrest they were committing an offense in the presence of the officers, to wit, maintaining a public nuisance. A horse-race-betting establishment such as was maintained and operated in the presence of the arresting officers is a public nuisance within the meaning of section 43-4603, A.C.A.1939, and declared to be a misdemeanor and punishable as such. Engle v. State,53 Ariz. 458, 90 P.2d 988; Engle v. Scott,57 Ariz. 383, 114 P.2d 236. A peace officer may without a warrant arrest any person who commits a misdemeanor in his presence. Section 44-124, A.C.A.1939; Adair v. Williams,24 Ariz. 422, 210 P. 853, 26 A.L.R. 278. The arresting officer went to the premises to serve a civil process, which it was his right and duty to do, and was in no sense a trespasser. It was also his right and duty to at that time and place arrest any person committing any criminal offense in his presence. "It is well settled that a search without a search warrant is justifiable where it is incident to a lawful arrest, and a seizure, on such a search, of evidence related to the crime, as well as the instruments of its commission and of means and implements of escape, is likewise permitted on such a search." 56 C.J., Searches and Seizures, section 90, page 1198. The search and seizure having been lawful, we see no merit in the contention that the constitutional provisions referred ...