On error to the Hudson County Court of Quarter Sessions.
For the plaintiffs in error, Frederic M. P. Pearse and Julius Lichtenstein.
For the state, Walter D. Van Riper, Attorney-General, and James R. Giuliano and William P. Gannon, Deputy Attorneys-General.
Before Brogan, Chief Justice, and Justices Parker and Oliphant.
The opinion of the court was delivered by
PARKER, J. The plaintiffs in error, seven in number, were convicted of a violation of the statute now to be cited as R.S. 2:135-3, dating from 1894 (Pamph. L., p. 155) and reenacted
with additions in the Crimes Act of 1898 (Pamph. L., at p. 812) as section 65. The present writ of error brings up that conviction.
The general story of the case is that a detail of state police raided a house in Hoboken, entered an upper room equipped with telegraphic and other appliances which were being operated by the defendants in connection with horse racing in progress elsewhere, arrested them and seized their various paraphernalia. Indictment and trial followed, the defendants offered no evidence and were convicted and sentenced. The present writ of error goes to that conviction.
The case is submitted on briefs without oral argument. There are six main heads in the brief, but as we view the matter they need not be treated seriatim; for with the exception of one or two matters of detail, the general discussion covers them all. The fundamental proposition of plaintiffs in error attacks the validity of the indictment, and several grounds are stated, viz.: that (1) it fails generally to charge a crime: (2) that it fails to charge a crime under the statute: (3) fails to charge where the horse racing took place: and (4) generally fails to set out facts constituting violation of the statute with sufficient clearness.
1. 2. The indictment follows the language of the statute, and concludes by invoking it in the usual manner. 3. The main ground of attack seems to be the failure to charge where the horse racing took place: but the obvious and complete answer is that that is immaterial. It is not the racing of horses that the statute denounces, but it is the "making of a book" on such racing. The charge is that defendants "made a book" in the City of Hoboken, on the result of races run or to be run elsewhere.
4. Failure to state the facts with sufficient clearness. The indictment follows the language of the statute, properly substituting "and" for "or," (the statute says "make or take:" the indictment says "make and take"), which is the proper and usual pleading in a criminal case.
It is argued that there was no evidence in definition of the words "making a book" or "bookmaking." No such evidence was required. We find ...