The opinion of the court was delivered by: GRIM
Defendant has been convicted of failing to pay the $ 50 special gambler's tax imposed yearly by the Internal Revenue Code, 26 U.S.C.A. § 3285 et seq.
He has moved for judgment of acquittal or in the alternative for a new trial.
The government called as witnesses two Philadelphia police officers who had had many years of experience in the suppression of vice and much experience in the suppression of numbers gambling. They testified that they arrested defendant on October 10, 1952, and that at this time he had in his pockets 48 sheets of paper which were three inches wide and seven inches long. On these sheets of paper were 1,800 notations of numbers, each one of which was a three-digit number followed by a dash and another number. The officers described the slips of paper as 'banker slips' and testified that from their experience in the numbers gambling business it was their opinion that the numbers on the sheets were notations of lottery bets or wagers, that the three-digit numbers in front of the dash were numbers which had been played and that the number following the dash showed the amount of money which had been played on the number which preceded the dash.
Defendant admitted to the officers at the time of his arrest that he had been picking up 'numbers' for a period of three months and that for this work he had been paid $ 40 a week.
The evidence also showed that as a result of the evidence obtained at the time of the arrest on October 10, 1952, defendant was indicted in the Court of Quarter Sessions of Philadelphia County and charged with setting up an illegal lottery. The evidence showed also that defendant pleaded guilty to this charge and was sentenced thereon.
The Revenue Code provides, § 3285:
'(a) Wagers. There shall be imposed on wagers * * * an excise tax equal to 10 per centum of the amount thereof. * * *
'(d) Persons liable for tax. Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this subchapter on all wagers placed in such pool or lottery.'
The Code also provides, § 3290:
The Code also provides, § 3294:
'(a) Failure to pay tax. Any person who does any act which makes him liable for special tax under this subchapter, without having paid such tax, shall, besides being liable to the payment of the tax, be fined not less than $ 1,000 and not more than $ 5,000.'
The numbers gambling business in which defendant was involved was operated by a proprietor or numbers bank. The proprietor employed numbers writers who made the contacts with the public and who actually sold the numbers and collected the money from the customers. The writers made records of their bets or wagers (the numbers played and the amount of money played thereon) and these records were conveyed to the numbers bank. However, the writers themselves did not bring these records to the numbers bank. This transportation or messenger work was done by other employees of the bank, known as pick-up men. Defendant was one of these pick-up men. The evidence does not show that he himself sold any numbers or handled any money, or that he was a proprietor of the business.
It is clear that the proprietor of the gambling business in which defendant was engaged was liable for a tax of ten per cent on the amount of all the wagers placed with him and that he was liable additionally for the special tax of $ 50 a year. It also is clear that the numbers writers were liable for the special tax of $ 50 a year. The question here is whether or not defendant, who did not contact the public and who handled no money was 'engaged in receiving wagers for or on behalf of' his employer, the numbers bank.
Defendant contends that he was not 'engaged in receiving wagers.' I disagree with defendant's contention. In my opinion he was just as much engaged in receiving wagers as were the numbers writers. The numbers writers, of course, actually contacted the customers, took their money and assisted more directly in the making of the bets, but they were no more receiving wagers than was defendant, because they were all working not for themselves, but for their principal and it was the principal in fact who was making the wagers. Both the pick-up men and the numbers writers were ...