Commonwealth v. Watson

Holmes, J.

The motion to quash, and the exception to allowing the witness to refresh his memory from a memorandum made by him on the night of the transactions testified to, are disposed of by the case of Commonwealth v. Clancy, ante, 128. In the present case the defendant is complained of for being present in a room occupied, etc., and engaged in the business and employment of selling pools upon the result of a game of base-ball. It is unnecessary to state the evidence in detail. In the room were blackboards with rows of four names, understood by the witnesses to be names or abbreviations of names of baseball clubs, each row being different from the others, and the rows being numbered from 1 to 16. One witness asked the defendant for No. 10, which read, “Brook., Pitts., Cleve., Phila.,” paid some money, and received a ticket numbered 10,456 in print, with 10 upon it in pencil. Afterwards he saw the defendant, and asked him if combination 10 had won, to which the defendant answered, No. The first exception is to allowing this witness to testify that combination 10 meant the four names in the row numbered 10, and that, as far as he knew, the names signified base-ball clubs. If the jury were not warranted in inferring as much without evidence, we are of opinion that the witness who bought the ticket, and who had been at the place a number of times, might be found by the judge to be qualified to testify to the meaning of the words used by himself and the defendant. Certainly we are far from being able to say that the finding was clearly wrong. Nunes v. Perry, 113 Mass. 274, 276. Commonwealth v. Sturtivant, 117 Mass. 122, 137.

A ruling was asked that there was no evidence warranting a conviction; also that certain specified transactions were wagers, not pools. These were refused, but the judge instructed the jury that he did not suppose all betting was selling pools, defined pools as in Commonwealth v. Perry, 146 Mass. 203, 208, with amplifications, and directed them that, unless they found the defendant was thus engaged in the business of selling pools, they must acquit him. The natural inference from the form of the transaction, the witness selecting a number and paying his money with nothing said as to the defendant’s undertaking, would be that it was selling a pool, not making an ordinary bilateral wager. Two of the witnesses said that it was a pool. , It is true that they saw no fund, and did not know of other persons making a wager at the time, but their testimony, if believed, carried conviction as to what the transaction purported, and therefore impliedly was admitted and affirmed by the defendant to be. The elements making up the implication would be difficult to reproduce, and yet there might be no doubt of the meaning understood by all concerned, even if there was not a word spoken.

We discover no error in the trial. Exceptions overruled.