Instruction 7.440, Criminal Model Jury Instructions for Use in the District Court

REGISTERING BETS

The defendant is charged with unlawfully (keeping a place for

registering bets or buying or selling pools) (being present and involved in

registering bets or buying or selling pools). Section 17 of chapter 271 of

our General Laws provides as follows:

“Whoever keeps a (building) (room). . .

with (apparatus) (books) (any device)

for (registering bets) (buying or selling pools)

upon the result of (a trial or contest of skill, speed or

endurance) (a game [or] competition). . .

or whoever is present

in [any] place, . . .

engaged in such business or employment. . .

shall be punished. . . .”

In order to prove the defendant guilty of this offense, the

Commonwealth must prove beyond a reasonable doubt:

Either: that the defendant knowingly kept a (building) (room) in which

there were books or devices for (registering bets) (buying or selling pools

upon [a contest of skill, speed or endurance] [a game or competition]);

Or: that the defendant was present in a place where he (she) was

knowingly involved in the business of (registering bets) (buying or selling

pools upon [a contest of skill, speed or endurance] [a game or

competition] ).

The model instruction may be modified as necessary for other alternatives that may be charged under

G.L. c. 271, § 17. Contrary to a literal reading of some parts of the statute, conviction under § 17

requires scienter and therefore the defendant must always have some connection, beyond unwitting

presence, with a place of illicit gaming. Commonwealth v. Murphy, 342 Mass. 393, 173 N.E.2d 630

(1961).