For the prosecutor, Charles Rubenstein.
For the defendant, Daniel O'Regan and Frank G. Schlosser.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
DONGES, J. Prosecutor in certiorari was convicted in the Hudson County Traffic Court of being a disorderly person, according to the provisions of R.S. 2:202-16, in that he was in possession of lottery slips, and was sentenced to serve twenty days in the Hudson county jail. Upon his application, there was a summary review of his conviction by Judge Brown, of the Hudson County Court of Common Pleas, and an affirmance of the conviction. Certiorari was allowed to review such proceedings.
The first point urged is that there was no proof that prosecutor had in his possession lottery slips pertaining to a lottery within the purview of R.S. 2:202-16. That section provides, inter alia:
"Any person who shall have in his possession or custody any lottery slips, books, or records pertaining to a lottery, or any person who shall have in his possession or have in an automobile in his custody any ticket or tickets, slip or slips, paper, document or memoranda in any way pertaining to the business of a number game, shall be adjudged to be a disorderly person. 'Number game' as used in this paragraph is defined as any betting on any number or numbers, or sets or arrangements of numbers, on or according to any plan or method whatsoever."
This act was declared valid in State v. Murzda, 116 N.J.L. 219.
The prosecutor's argument appears to be that he might be guilty of possessing "numbers" slips, but there was no evidence of possessing "lottery" slips, and, therefore, he was not guilty as charged, to wit: of having "in his possession lottery slips pertaining to a lottery."
It appears from the state of the case that Chief of County Detectives Flanagan produced two books "containing lottery slips in evidence" and testified that the two books contained
lottery slips and Detective Mahoney testified to the same effect. This testimony was not challenged or contradicted. The record, therefore, adequately sustains the finding of the court that prosecutor was in possession of lottery slips as charged. The state urges that "lottery" is inclusive of "numbers" but it is not ...