Instruction 7.520, Criminal Model Jury Instructions for Use in the District Court

USE OF TELEPHONE FOR BETTING

The defendant is charged with unlawfully (using a telephone)

(permitting a telephone to be used) for betting purposes. Section 17A of

chapter 271 of our General Laws provides as follows:

“[W]hoever uses a telephone

(or) (being the occupant in control of premises where a

telephone is located or a subscriber for a telephone,

knowingly permits another to use [that] telephone. . .)

for the purpose of (accepting wagers or bets) (buying or selling

of pools) (placing. . . a wager with another) upon the result

of (a trial or contest of skill, speed, or endurance) (an

athletic game or contest) (the lottery called the numbers

game)

or for the purpose of reporting [the results of (a trial or contest

of skill, speed, or endurance) (an athletic game or contest)

(a numbers game)] to a headquarters or booking office. . .

shall be punished. . . .”

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

Commonwealth must prove two things beyond a reasonable doubt:

First: That the defendant (used) (was the subscriber for) (was in

control of premises containing) a telephone; and

Second: That the defendant knowingly (used the telephone)

(permitted the telephone to be used) for (accepting wagers or bets) (buying

or selling pools) (placing bets upon a contest of skill, speed or endurance,

or an athletic game) (placing bets in a numbers game) (reporting the results

of a contest of skill, speed or endurance, or an athletic game to a

headquarters or booking office) (reporting the results of a numbers game

to a headquarters or booking office).

Commonwealth v. Murphy, 342 Mass. 393, 398, 173 N.E.2d 630, 633 (1961) (statute requires

scienter); Commonwealth v. Jensky, 318 Mass. 350, 352-354, 61 N.E.2d 532, 534 (1945) (police

answering the suspect telephone anonymously may testify as to what callers said).