COMMONWEALTH vs. PHILIAS J. CHAGNON.

COUNIHAN, J. This defendant was found guilty upon an indictment [Note p278-1] charging in effect that he and one Mooney conspired to commit the crime of registering bets on the results of horse races. After having waived a jury, he was

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tried by a judge, found guilty, and sentenced. It does not appear that Mooney has ever been arraigned or tried.

The case comes here upon the defendant's exceptions to the denial of his motion for a "finding for the defendant," to the denial of certain of his requests for rulings, and to the admission of evidence.

The material evidence may be summarized as follows: The defendant over a period from January 3, 1950, to June 25, 1951, caused to be sent to one "Jno Mooney, East St. Louis, Illinois," approximately 347 telegrams with money orders aggregating about $30,121.89. They were sent from an office of the Western Union Telegraph Company, hereinafter called the company, in Hudson at the request of and for the defendant by one Fahey, the manager of that office. Original records of these telegrams and money orders were in evidence. They were all in Fahey's handwriting and were sent in the name of Paul Adams, an alias used by the defendant. They were all sent as bets on the results of horse races in various parts of the United States and Cuba. The defendant furnished the money to make these bets. The method of making such bets was to write out a telegram accompanied by a money order for the amount bet upon a horse and send it to Mooney. The following sample is illustrative of the practice, "Mr. Kilroy [name of horse] 40-0-0," meaning $40 on the horse to win and nothing for finishing second or third. Acknowledgment of receipt of the telegrams and money orders was sent by telegraph by Mooney to the defendant under the name of Paul Adams. The defendant under the same alias received from Mooney during the same period approximately 77 telegraphic money orders for about $26,796.75 which could have been found to be winnings. These were all indorsed by the defendant and in most instances were cashed by him at the company's office in Hudson. Questioned by the chief of police of Marlboro the defendant said nothing more than that he knew Mooney was a "bookie" and that he had placed a bet with him once in a while in 1944 and 1945. When arrested on October 9, 1951, the defendant had on his person

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a telegram from Mooney to him quoting odds on the results of football games.

At the close of the evidence the defendant filed a motion for a "finding for the defendant," which was denied, and certain requests for rulings of which the following were refused. "2. Upon all evidence and the law the defendant is entitled to an acquittal. 3. The prosecution on all the evidence has not made out a case of unlawful conspiracy as charged." "7. The evidence does not support the unlawful object of the alleged conspiracy. 8. The prosecution has not shown by all the evidence beyond a reasonable doubt that there existed an unlawful conspiracy in which the defendant was involved with another individual." The motion has no standing as such and we do not consider it for any purpose because the requested rulings which were denied properly raised the question whether the evidence was sufficient to warrant a conviction. We are of opinion that at least request numbered 2 should have been granted and that as a result the defendant should have been acquitted.

The familiar and classic description of what constitutes criminal conspiracy in this Commonwealth was set forth by Chief Justice Shaw in Commonwealth v. Hunt, 4 Met. 111, where at page 123 he said, "a conspiracy must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. We use the terms criminal or unlawful, because it is manifest that many acts are unlawful, which are not punishable by indictment or other public prosecution; and yet there is no doubt, we think, that a combination by numbers to do them would be an unlawful conspiracy, and punishable by indictment." Compare Commonwealth v. Waterman, 122 Mass. 43, 57. This general principle was affirmed in Commonwealth v. Dyer, 243 Mass. 472, where at page 485 it was said, "It is the consensus of opinion that conspiracy as a criminal offence is established when the object of the combination is either a crime, or if not a crime, is unlawful, or when the means

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contemplated are either criminal, or if not criminal, are illegal, provided that, where no crime is contemplated either as the end or the means, the illegal but non-criminal element involves prejudice to the general welfare or oppression of the individual of sufficient gravity to be injurious to the public interest." From these descriptions of elements necessary to establish the crime of conspiracy it follows that a conspiracy, agreement, or combination to do an act which is not criminal or unlawful as prejudicial to the general welfare, by means which are not criminal or unlawful, is not an indictable offence.

At the outset of our consideration of this case we must examine the indictment itself and the position taken by the Commonwealth in connection with it. The Commonwealth in its brief and at the oral argument contended that the conspiracy of which the defendant was found guilty was one to violate G. L. (Ter. Ed.) c. 271, Section 17. [Note p281-1]

No violation of that part of Section 17 emphasized in the margin is alleged in the indictment, and nowhere in the evidence can be found any suggestion that either the defendant or Mooney did anything violative of that part of Section 17. We do not therefore consider it as relevant.

The indictment significantly does not allege a conspiracy to violate Section 17 as such but merely alleges a conspiracy between the defendant and Mooney "to commit . . . the

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crime of registering bets" upon horse races. But registering bets as such is not made a crime by Section 17. What is criminal is the keeping of a building or room, or occupying or being found in any place, with apparatus, books or device for registering bets, and the registering of bets by such keeper, occupant, person found or person present in such a place. Despite the provisions of c. 277, Section 40 (bill of particulars), it does not appear to us that any criminal or unlawful act is in substance set forth in the indictment and certainly no evidence of any criminal or unlawful means has been shown. Commonwealth v. Hunt, 4 Met. 111. Commonwealth v. Eastman, 1 Cush. 189. Commonwealth v. Shedd, 7 Cush. 514. Commonwealth v. Prius, 9 Gray 127, 128. Commonwealth v. Wallace, 16 Gray 221, 222-223. In passing it may be well to quote from Commonwealth v. Eastman where at page 226, citing with approval a Pennsylvania case of Hartmann v. Commonwealth, 5 Barr, 60, it was said, "but if the object of the conspiracy be to do an act which is an offence merely by statute, the intended purpose must in such case be set forth with so much detail, as may be necessary to bring it within the description of the statute offence." Obviously the indictment in this case did not do this.

But assuming that this indictment was in form sufficient to allege a conspiracy to violate Section 17, which we seriously doubt, the evidence at the trial falls short of sustaining a conviction. There was no evidence that either the defendant or Mooney conspired to register bets as a keeper, occupier, person found or present in any place "with apparatus, books or any device, for registering bets." "Registering bets" as such has been defined in Commonwealth v. Clancy, 154 Mass. 128, 133-134, and in Sullivan v. Vorenberg, 241 Mass. 319, 321. In both of these cases bets were placed, in a room where apparatus, books or other devices were present for that purpose, by a bettor who received a written memorandum by the person taking or "registering" the bet. Compare Commonwealth v. Ferry, 146 Mass. 203,

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207-208. In the present case it is equally consistent from the evidence to infer that the defendant was merely placing bets for himself with Mooney. See Commonwealth v. Watson, 154 Mass. 135, 139-140. We do not pause to consider whether such conduct constitutes a crime, for that is not the charge upon which he was indicted. It may be well to note, however, that the only statutes referring to the placing of bets which have been brought to our attention have no applicability. See c. 271, Section 1 (penalty for winning money by gambling); Section 2 (gaming at cards, dice or other game in a public conveyance or public place, and so forth); Section 6 (gaming at cattle shows, and so forth); and Section 42 (betting on a boxing match).

Because of what we have said we do not consider the exceptions relating to evidence.

Exceptions sustained.

Judgment reversed.