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State v. Berger

Decided: January 4, 1941.

STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
PHILIP M. BERGER, PLAINTIFF IN ERROR



On writ of error to the Essex County Court of Special Sessions.

For the state, William A. Wachenfeld, prosecutor of the pleas, and Joseph E. Conlon, first assistant prosecutor.

For the plaintiff in error, Kessler & Kessler (Samuel I. Kessler, of counsel).

Before Brogan, Chief Justice, and Justices Parker and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The single question we are called upon to decide in this cause is whether the game operated by plaintiff in error is comprehended by our Gaming act (R.S. 2:135-1) which provides, inter alia, that "all playing for money or other valuable thing * * * with any * * * device having one or more figure or figures, number or numbers thereon, shall be guilty of a misdemeanor."

Plaintiff in error, hereafter referred to as defendant, was charged with having violated the quoted provision of the Gaming act, on March 20th, 1940. He waived indictment and trial by jury. On his application, consented to by the prosecutor of the pleas and approved by the court, he was tried at the Essex County Court of Special Sessions, Judge Brennan presiding.

No testimony was offered by or for defendant. The cause was submitted to the trial judge on the oral testimony of the arresting officers and on a written statement by defendant as to his method of operating the alleged illegal game. That

statement, on stipulation, or without objection, was read into the record.

The proofs thus submitted are free from dispute. They disclose that defendant operated and managed a motion picture theatre in Newark, New Jersey. On the evening of March 20th, 1940, pursuant to extensive advertisements, he conducted a game called "Payme," in addition to the regular showing of the advertised motion picture show. This game was played with cards (one was given to each patron upon entering the theatre and one to each person in the lobby of the theatre) on which five numbered squares were printed under each letter of the word "Payme." Each card was numbered differently. Patrons in the audience drew, by lot, small rubber balls from a basket. Each ball contained a letter and a number which, as drawn, were immediately announced. If the number announced appeared on his card, a player would punch out that square. When any player succeeded in punching out five squares in a horizontal, diagonal or vertical row, he would shout "Payme." After his card was checked, and found to be accurate, he was declared the winner of that game. One continuous game was played until fifteen winners were declared on the night of March 20th, 1940. Each winner went to the stage of the theatre and there selected one of fifteen discs. Beneath each disc selected was stated the value of a credit voucher redeemable in merchandise at L. Bamberger & Co., Newark, New Jersey, which voucher was then awarded to that person. The vouchers ranged in value from $1 to $5.

The charge of admission to the theatre to see the motion picture was thirty cents and included the right to play "Payme." Furthermore, as advertised, anyone who desired might, without any charge whatsoever, enter the lobby of the theatre and take part in the playing of the game. On the night in question, in fact, some twenty-five or thirty persons had gathered in the lobby and although they had paid nothing whatsoever to the theatre, took part in the game. One of these persons won one of ...


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