On error to the Atlantic County Court of Quarter Sessions.
For the plaintiff in error, Edward I. Feinberg (Isaac C. Ginsberg, of counsel).
For the state, Lewis P. Scott, Prosecutor of the Pleas, and David R. Brone, Assistant Prosecutor of the Pleas.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
HEHER, J. The writ of error removed into this court, for review, the judgment of conviction of plaintiff in error, after a jury trial, upon all three counts of an indictment charging, as separate offenses, that on or about April 13th, 1944, November 13th, 1944, and February 9th, 1945, in the City of Atlantic City, he "did sell to Samuel Zechtzer tickets, chances and shares in a certain lottery known as the 'Number Game' and also known as 'Numbers,'" more particularly described therein, contrary to R.S. 2:147-1 (a).
The entire record of the trial proceedings is here pursuant to R.S. 2:195-16.
The sufficiency of the evidence to sustain the several counts of the indictment is challenged. It is said that there was error in the refusal of the trial judge to grant motions for a directed verdict of acquittal, for such insufficiency, at the conclusion of the state's case and at the close of the whole case, and that, at all events, the verdict as to all three counts is contrary to the weight of the evidence. We find these points to be untenable.
There as a plenitude of proof of a sale by the accused to Zechtzer, on each of the occasions averred in the indictment, of a share or interest in a lottery of the character described therein. The defense was that the accused acted merely as Zechtzer's agent in the purchase of the lottery shares, and thus the sale thereof was made by a third person and not by the accused. This explanation was rejected by the jury as utterly implausible and incredible -- a conclusion that is plainly not beyond the bounds of reason.
But it is said that there was no proof of the sale of a lottery "ticket" on either occasion, and these transactions therefore did not fall within the prohibition of the cited statute. True, there was no delivery of a lottery ticket to Zechtzer; but that is not of the essence of the offense denounced by the statute and charged in the indictment. A lottery within the concept of the statute is a scheme for the distribution of prizes by lot or chance; and a lottery ticket is merely the evidence or token of the holder's participation in
the lottery and the number which determines his right to share in the distribution resolved by chance after the sale. The actual delivery to the purchaser of a memorandum of the sale of a share in the lottery is not an essential ingredient of the crime. The statute strikes at the lottery; and to hold that the sale of a share or interest therein is not within its terms, unless accompanied by a delivery to the purchaser of the written memorandum of the transaction, would provide the means for its evasion and the frustration of its obvious policy, and this is a construction to be rejected unless clearly ...