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November 15, 1963


The opinion of the court was delivered by: DUMBAULD

After extensive argument and brief on behalf of defendant in support of motion for a new trial, we have read the record in its entirety and find no justification for granting a new trial. A fortiori we find no violation of the Fifth or Sixth Amendments.

Defendant was found guilty by the jury on all three counts of a wagering tax indictment, charging violations, respectively, of 26 U.S.C. 7203 (wilful failure to pay tax); 26 U.S.C. 7272 (failure to register); and 26 U.S.C. 7262 (performing forming taxable act without having paid tax).

 The conviction rests squarely upon the testimony of Francis E. Larkin, an Internal Revenue Intelligence Agent, who testified that on three occasions he was in defendant's place of business. On the first occasion he saw defendant write a number for someone else. On the other two occasions he himself played a number with the defendant. This testimony, if believed by the jury, as it was (and it may be added that it appeared convincing to the Court as well), amply suffices to support the verdict. The element of wilfulness, required for the first count, is supplied by the testimony of another Internal Revenue agent, who testified that at the time of the raid the defendant stated that he was familiar with the gambling tax requirements but considered them inapplicable to himself inasmuch as he did not write any numbers (Tr. 59, 62).

 Proof of writing numbers is ample to convict. The statutory definition of lottery in 26 U.S.C. 4421 expressly provides that 'the term 'lottery' includes the numbers game, policy, and similar types of wagering'. (Italics supplied). It is therefore unnecessary to resort to any common law definition of wagering. Defendant contends that the three essential elements of any lottery are (1) consideration; (2) chance; and (3) prize. He contends that here there was no proof of any prize.

 It is true that there was no proof of pay-off here, because Larkin testified that his number did not 'hit' (Tr. 15). Card games are not necessarily always played for money; but it would defy common sense to contend that anyone ever played numbers for fun. The witness Larkin gave a general description of the manner in which the numbers racket is conducted, and his description would probably have been more detailed if defendant's counsel had not interposed objection (Tr. 11). However, there is in the transcript reference to 'winning numbers' and the jury was certainly well warranted in finding that a person playing a number whose number hit would be entitled to his pay-off. It is not fatal that the witness did not state what rate of return was prevailing at the time and place of his bet.

 Likewise, it is not a fatal defect that the agents who conducted the raid at the time defendant was arrested did not find any number slips or paraphernalia in his place of business (Tr. 59). This was not essential to conviction; defendant was properly convicted if the jury believed the testimony of Larkin that the defendant wrote numbers on three occasions.

 The crucial issue in the case was thus the credibility of the witness Larkin, and this issue was fairly presented to the jury for its determination. Defendant vigorously attacked Larkin's credibility. First it was contended that he was unreliable because he had wrongly identified another suspect arrested at the same time as the defendant pursuant to information furnished by Larkin's surveillance. The transcript of the arraignment of the other suspect (one Frank Ferrainolo) before the commissioner states that the suspect was 'identified'. Defendant contends that this identification was made by Larkin. On the other hand, another Internal Revenue agent (Porter), who handled the Ferrainolo arraignment, testified that Larkin was not present and that when Larkin first saw Ferrainolo in the hall after the arraignment he immediately told Porter that Ferrainolo was the wrong man (Tr. 67-68). Larkin also testified that he did not identify Ferrainolo and that as soon as he saw Ferrainolo he said immediately that he was the wrong man (Tr. 53-55). The truth of the matter with regard to this issue was for determination by the jury, and the topic was adequately presented in the Court's charge. The Court charged that:

 'The defendant contends that it was Mr. Larkin who identified the wrong man at the preliminary hearing. On the other hand, the other witnesses testify that Mr. Larkin was not present at the preliminary hearing, at which Mr. Ferrainolo was brought in and that as soon as Mr. Larkin saw the man, he immediately said it was the wrong man.

 'So that in order to have any value as to whether or not Mr. Larkin's powers of recollection and identification are weakened by this Ferrainolo incident, you would have to be satisfied that Mr. Larkin had identified Mr. Ferrainolo as being the man and later it was found that he was not.

 'If you, however, believe Mr. Larkin's version and that of the other agents that he was not there when the preliminary hearing for Ferrainolo was had and that as soon as he saw him, he said it was the wrong man, why then of course the attack on Mr. Larkin's reliability falls and you exclude the whole Ferrainolo business from your consideration for as I have said, all of these collateral issues of prior inconsistent statements and so on, are admissible solely for the purpose of helping you evaluate the reliability, the credibility and trustworthiness of witnesses and not as any substantive evidence upon the guilt or innocence of the defendant.' (Tr. 143-144).

 The commissioner's transcript (Exhibit D), after the printed caption 'Proceedings taken', reads '5/4/63 Defendant identified as accused, arraigned, and advised of rights, requested hearing, and posted bond in the amount of $ 1,000.00.' On the next line a further typewritten entry begins, which reads: 'The complaint is dismissed for the reason that the defendant is not the John Doe described in the complaint.'

 Defendant also attacked the credibility of Larkin on the ground of prior inconsistent statements.

 At the trial Larkin testified as follows:

 'On April 13, 1963, I conducted a surveillance of the Colonial Shoe Shine parlor on East Washington Street. That was on April 13, 1963. I entered the establishment at approximately 12:15 p.m. I was standing at the magazine rack, reading a magazine when a man walked up to an individual who he called Mike, who was the individual I pointed out previously and asked Mike for 773 on the early race. Mike pulled out a white ...

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