On appeal from a judgment of the Supreme Court, whose opinion is reported sub nom. Murzda v. Duch, Judge, &c., 13 N.J. Mis. R. 429.
For the appellant, Sidney Goldmann (Edward J. O'Mara and Charles Hershenstein, special assistants to the attorney-general, of counsel).
For the respondent, George Pellettieri.
The opinion of the court was delivered by
HEHER, J. The state challenges the judgment of the Supreme Court, setting aside the conviction of respondent, in the First District Police Court of the City of Trenton, of the offense of possessing "number lottery slips pertaining to a number lottery," in violation of chapter 133 of the laws of 1934. Pamph. L. 1934, p. 364.
The decisive question is whether the pertinent provision of the statute, subdivision (c), classifying as a disorderly person
one "who shall have in his possession or custody any lottery slips, books or records pertaining to a lottery," is in contravention of Article IV, Section VII, subdivision 2, of the state constitution, in terms following:
"No lottery shall be authorized by the legislature or otherwise in this state, and no ticket in any lottery shall be bought or sold within this state, nor shall pool-selling, book-making or gambling of any kind be authorized or allowed within this state, nor shall any gambling device, practice or game of chance now prohibited by law be legalized, or the remedy, penalty or punishment now provided therefor be in any way diminished."
This provision was introduced into our organic law by an amendment adopted on September 27th, 1897; and the inquiry is whether it served to incorporate therein the then existing chapter 293 of the laws of 1895 (Pamph. L. 1895, p. 593), denominating a misdemeanor the knowing possession of "any paper, document, slip or memorandum that shall pertain in any way to the business of lottery-policy, so-called," and so to deprive the legislature of the authority to give the offense in question the lesser grade or classification, both in respect of its character and the punishment therefor.
We resolve this inquiry in the negative. Gaming was not a crime at common law. Wagers and like contracts were not objectionable per se. Gaming was unlawful only when it was tainted with fraud, or constituted a nuisance, or for some special reason ran counter to public policy. Flagg v. Baldwin, 38 N.J. Eq. 219; 12 R.C.L. 708. It follows that the possession of lottery tickets and kindred articles associated with gaming was not a criminal offense at common law, and it is therefore a fit subject of prosecution and punishment in summary proceedings, unless such punitive legislative action is within the inhibition of the constitutional limitation under consideration. It falls into the category of what the common law denominated "minor" offenses -- one that is not in its nature indictable, but is properly classable as disorderly conduct. It is essentially a police regulation designed to make effective the constitutional lottery interdiction. See State
v. Rodgers, 91 N.J.L. 212; State v. Anderson, 40 Id. 224; State v. Lakewood Market Co., 84 Id. 512 (at p. 524); ...