On appeal from the Supreme Court, whose opinion is reported in 133 N.J.L. 428.
For the plaintiffs in error, Frederic M. P. Pearse and Julius Lichtenstein.
For the defendant in error, Walter D. Van Riper, Attorney-General, James R. Giuliano and William P. Gannon, Deputy Attorneys-General.
The opinion of the court was delivered by
HEHER, J. The judgment is affirmed, for the reasons expressed in the opinion of Mr. Justice Parker for the Supreme Court. But, in view of the insistence of plaintiffs in error on the oral argument and in the brief that their fundamental rights have been invaded, we shall treat the particular points in some detail.
It is urged that the count of the indictment upon which the judgment was entered, although it charges that the accused "wilfully and unlawfully did make and take what is commonly known as a book, upon the running of horses, mares and geldings," fails to charge a crime denounced by R.S. 2:135-3, in that the phrase "to make and take a book" is not "so commonly understood as to be self-explanatory," and the allegation is therefore wanting, in the clarity and certainty of statement requisite to apprize the accused of the offense they are called upon to meet, and the affirmance of the judgment of conviction would serve to deprive them of their constitutional right of pleading former jeopardy "if indicted and tried for any of the other acts relating to betting on horse racing which are forbidden by the statute;" and that, while the proofs "indicate that some form of betting on horse races was carried on in the house in Hoboken," there is no evidence tending to establish that the "particular conduct" was "bookmaking as that word was understood at the time of the enactment of the statute," and thus there was error in the denial of the motions to direct a verdict of acquittal.
Certainty of description of the offense charged is a prime requisite of an indictment. This requirement that the alleged criminal act be laid in certain and identifiable form is grounded in the accused's right to such specification of the accusation as may be needful for the preparation of his defense and the interposition of a plea of autrefois convict or autrefois acquit in the event of a further prosecution for the same offense. The accused has a constitutional right "to be informed of the nature and cause of the accusation" levelled against him. State Constitution, article I, paragraph 8. It is a corollary of this principle that an offense may be charged in the words of the statute, if the statute describes it in terms that in themselves import with certainty the elements of the offense, and thus the allegation satisfies the accused's fundamental rights. The statutory language need be supplemented only where necessary to particularize and identify the offense
that would otherwise be indefinite and uncertain because of the generality of the statutory language. Linden Park Horse Association v. State, 55 N.J.L. 557; State v. Schmid, 57 Id. 625; State v. Spear, 63 Id. 179; State v. Caporale, 85 Id. 495; State v. Morris, 98 Id. 621; affirmed, 99 Id. 526; Levine v. State, 110 Id. 467; State v. Tuzenew, 15 N.J. Mis. R. 584; affirmed, sub nomine State v. Suckow, 120 N.J.L. 190; State v. Lewandowski, 121 Id. 612; State v. Lisena, 131 Id. 48.
Tested by this principle, the indictment is sufficient. The amendments of the State Constitution adopted in 1897 and 1939 (Article IV, section VII, paragraph 2) outlawed bookmaking, eo nomine; and the original enforcement act, like the present, classified as a misdemeanant one who "shall make or take what is commonly known as a book, upon the running, pacing or trotting, either within or without this state, of any horse, mare or gelding," or "shall conduct the practices commonly known as bookmaking or pool selling," or "shall keep a place to which persons may resort for engaging in any such practices * * *." Pamph. L. 1898, p. 812; Comp. Stat. 1910, p. 1766, § 65; R.S. 1937, 2:135-3; Pamph. L. 1940, p. 862. Thus, the thing denounced as a crime is bookmaking as "commonly known" -- i.e., in common understanding; and that is the making of a "book of bets" on horse races. In Webster's New International Dictionary (2d ed.), "bookmaking" is defined as the "making of a book of bets," and "bookmaker" as one who "makes a book of bets." In the old Century Dictionary and Cyclopedia, which long antedates the constitutional amendment of 1897 and the original enforcement act, we find these definitions: "Book:" "In betting, an arrangement of bets recorded in a book; a list of bets made against a specific result in a contest of any kind; as to make a book." "Bookmaking:" "The act or practice of making a book on a race or other doubtful event." "Bookmaker:" "One who makes a book on a race or other doubtful event; a professional betting man." And in Funk & Wagnall's Practical Standard Dictionary, published in 1933, a "bookmaker" is defined as "A professional betting man, especially one connected with the turf." There is a seeming
curtailment of the primary significance of these terms which no doubt is attributable to the limitation of punitive statutory provisions here and there either to horse racing or to racing generally. "Bookmaking" is "a species of betting on races;" the "business of receiving and accepting bets or wagers on the result of races, usually after quoting odds to prospective betters and having them write out slips;" it "imports some method of recording bets." 27 C.J. 979; 38 C.J.S. 54, 56. Such is the conception of the word in the case of New York v. Bennett, 113 Fed. Rep. 515. It has also been defined as the recording of bets on horse races in a book. Spies v. Rosenstock, 87 Md. 14; 39 A. 268; Armstrong Racing Publications v. Moss, 43 N.Y. Supp. (2 d) 171; Hofferman v. Simmons, 32 N.Y. Supp. (2 d) 244; Albright v. Karston, 206 Ark. 307; 176 S.W. Rep. (2 d) 421. But see Murphy v. Board of Police, N.Y. 11 Abb. U.C. 337; 63 How. Prac. 396, 399. See, also, 5 Words and Phrases (Perm. Ed.). The term "bookmaking" originally indicated a "collection of sheets of paper or other substances upon which entries could be made either written or printed." People on Complaint of Lennon v. Camio, 300 N.Y. Supp. 264; People, ex rel. Lichtenstein v. Langan, 196 N.Y. 260; 89 N.E. Rep. 921.
The essence of the point made by plaintiffs in error is that the term "bookmaking" is to receive the sense and significance accorded to it prior to the adoption of the constitutional amendment of 1897 and the original enforcement statute of 1898; that the taking of bets at "odds" given by the bookmaker is an essential element of the offense; that the indictment here makes no such allegation; and that there is no proof of "any written or printed record" that the accused, or any of them, "quoted, offered or laid odds," or "made or accepted any bets based upon any odds quoted or offered." The wagers were booked on races to be run at pari-mutuel tracks; and, while under that system "odds" are posted at the track from time to time until the race is begun, ...