Opinion
The statute on pool selling (53-295) is directed against the forms of gambling known as pool selling, including bets or wagers on any trial of skill, speed or endurance. The information against the defendant charged that he "was concerned in buying and selling pools upon the results of horse races." There was evidence that the defendant had arranged with B to pay him a commission on bets placed through him and that the police surprised B in the act of telephoning bets on horse races to the defendant. The defendant claimed on appeal that, to be guilty of the specific offense charged, he had to have been concerned in receiving wagers from several persons on the same event subject to payment of the total of the wagers, minus a commission, to the winners and that the evidence did not establish these essential elements of the offense. The claim thus made was essentially one of variance and should have been made by timely objection to the evidence. An appeal from the denial of a motion to set aside a verdict is not the proper means by which to attack an alleged variance. An accused can gain nothing from a late claim of variance without a showing that he was prejudiced in his defense on the merits and that substantial injustice was thereby done. The sole defense made at the trial was that the defendant was not the man to whom B was talking on the telephone and thus was not involved in any offense under the statute. In view of the nature of the defense, the defendant could not have been prejudiced in his defense by the language of the information. Consequently, the claim of variance, made for the first time on appeal, was not entitled to consideration.
Argued February 6, 1964
Decided March 3, 1964
Information charging the defendant, in the first part, with the crime of pool selling and, in the second part, with having been previously convicted of the crime of pool selling, brought to the Superior Court in Hartford County, where the issues under the first part were tried to the jury before Comley, J.; the jury found the defendant guilty under the first part and, the defendant having pleaded guilty to the second part, the court rendered judgment of guilty under both parts; from that judgment the defendant appealed. No error.
The appellant filed a motion for reargument which was denied.
Morton C. Hansen, Jr., with whom, on the brief, was David L. Gussak, for the appellant (defendant).
Harry W. Hultgren, Jr., assistant state's attorney, with whom, on the brief, were John D. LaBelle, state's attorney, and George D. Stoughton, assistant state's attorney, for the appellee (state).
The defendant was tried before a jury on an information alleging, in its first part, that "John D. LaBelle, State's attorney for the County of Hartford, accuses John M. Rafanello, of Bristol, Connecticut, of POOL SELLING, and charges that at the City of Bristol, on or about the twenty-fourth day of July, 1961, the said John M. Rafanello was concerned in buying and selling pools upon the results of horse races, in violation of Section 53-295 as amended by Public Act 528 of the 1961 Public Acts." The second part of the information charged the defendant with being a second offender, to which he pleaded guilty, and that part of the information is not in issue. The jury rendered a verdict of guilty on the first part of the information. The defendant made a motion to set aside the verdict, which the court denied, and this appeal is from the final judgment.
The police surprised Alfred Bartolucci, at his place of employment, in the act of telephoning bets on horse races, which were recorded on slips of paper found in his possession. There was evidence from which the jury could have found that the person to whom Bartolucci was telephoning the bets was the defendant. The jury could also have found that Bartolucci had an arrangement with the defendant whereby the latter would pay Bartolucci a commission on bets placed through him, that the defendant would furnish any money necessary to pay the winners, and that betting accounts between Bartolucci and the defendant were settled weekly on Sunday. The only defense made at the trial was that the defendant was not the person to whom Bartolucci was talking on the telephone.
There is no dispute that Bartolucci was in the act of telephoning bets on horse races to someone and that the slips of paper which the police found in his possession were records of these bets. Nor is there any denial that the betting transaction would, if proved, involve the defendant in an illegal activity under 53-295, as amended by Public Acts 1961, No. 528, 1. The defendant's only attack on the verdict is that the state's evidence fails to support a conviction for pool selling, which has been defined as "the receiving from several persons of wagers on the same event, the total sum of which is to be given the winners, subject ordinarily to a deduction of a commission by the seller of the pool." State v. Fico, 147 Conn. 426, 428, 162 A.2d 697. Stated in another way, the defendant asserts that while the evidence would have warranted a conviction for taking bets on horse races, it did not support a conviction for pool selling, although both acts are illegal under the statute.
It is clear that if the information had charged the defendant with "pool selling . . . in violation of 53-295 as amended by Public Act 528 of the 1961 Public Acts," it would have been a sufficient information under the rules. Practice Book, 1963, 493; State v. Mele, 140 Conn. 398, 402, 100 A.2d 570. The statute has been construed to be "directed against that form of gambling known as pool-selling, including bets or wagers on the result of any trial of skill, speed, or endurance." State v. Scott, 80 Conn. 317, 320, 68 A. 258; State v. Fico, supra. The defendant maintains, however, that the information, by particularizing that the defendant was concerned in buying and selling pools upon the results of horse races," restricts the state to proof of pool selling as defined above in order to obtain a conviction. This record does not require us to decide that question.
The claim thus made, which is essentially one of variance, is suggested for the first time on this appeal. The defendant made no claim of variance during the trial, nor did he object to the admissibility of any evidence on the ground of variance in the absence of a showing of substantial injustice, we do not, on appeal, entertain a claim which was not advanced in, or passed upon by, the court below. State v. Wyman, 118 Conn. 501, 508, 173 A. 155. The proper way for the defendant to have asserted the claim which he now makes would have been by timely objection to evidence offered at the trial. An appeal from the denial of a motion to set aside the verdict is not a proper means by which to attack the alleged variance. Chapin v. Popilowski, 139 Conn. 84, 86, 90 A.2d 167. If the variance had been suggested below, it would not, had the court found it to exist, have been a ground for acquittal but would have permitted any amendment of the information necessary to make it conform to the proof. Practice Book, 1963, 525. The defendant can gain nothing from this late claim without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. State v. Mola, 128 Conn. 407, 410, 23 A.2d 126; Maltbie, Conn. App. Proc. 211; 5 Wharton, Criminal Law and Procedure 2056, p. 202. Since his entire defense was that he was not the man to whom Bartolucci was talking on the telephone, and consequently that he was not involved in any offense under the statute, we cannot say that he was prejudiced in his defense by the language of the information. The statute provides the same penalty for a violation of any one of the several betting activities which it prohibits. If the jury concluded that the defendant was the person involved in the telephone conversation with Bartolucci, as the verdict indicates that they did, then the defendant tacitly concedes that he was guilty of a crime which was punishable under the statute.