For the defendant in error, David R. Brone and Lewis P. Scott, Prosecutor of the Pleas of Atlantic County.
For the plaintiff in error, Carl Kisselman and Samuel P. Orlando.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The case comes up on assignment of errors and also, under the statute (R.S. 2:195-16) and with a certification of the entire record, on specification of causes for reversal.
The plaintiff in error, Austin Clark, was convicted under an indictment charging that on or about July 23d, 1946, at a named building in Atlantic City he "did unlawfully keep a place to which persons might and did resort for gambling by playing for money at and with cards and dice, with the intent that said persons might and did resort thither for gambling by playing for money at and with cards and dice; and in which premises they did, on the date aforesaid, engage in gambling by playing for money at and with cards and dice, to the evil example of all others in like case offending,
contrary to the form of the statute in such case made and provided, and against the peace of this State, the government and dignity of the same." The indictment contained three counts, the first charging the keeping of a disorderly house, the second charging as stated above and the third charging much as in the second but naming an extended period from May 23d to July 23d. The verdict was "not guilty" as to the first and third counts and "guilty" as to the second count.
The second count of the indictment was rested upon R.S. 2:135-3, as amended by chapter 205, Pamph. L. 1940, which provides that:
"Any person who shall habitually or otherwise, buy or sell what is commonly known as a pool, or any interest or share in any such pool, or 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, or for betting upon the event of any horse race, or other race or contest, either within or without this State, or for gambling in any form, or any person who shall aid, abet or assist in any such acts, shall be guilty of a misdemeanor * * *."
The question is whether the court erred in using the italicized words in the following portion of the charge to the jury:
"Now, you perceive to convict under the statute, it must be proved that the proprietor kept the place with the intent that persons might resort there for betting. In other words, to convict under this act it must appear from the testimony that the person kept the premises with the intent that people might come there to gamble or make bets of some kind as defined in the statute, and that, as I have already told you, is not an element of the common law crime of keeping a disorderly house. On the other hand and at the same time, under this act it is not necessary to show that the place was habitually conducted; that the practices continued for a long period of time. It is enough that it be shown that the practice was conducted by someone on a solitary occasion. That would be a violation of the act."
Plaintiff in error seeks to place the indictment in that class of offenses where habitual or repeated acts must be shown, namely, in the category of maintaining a disorderly house. The theory upon which an indictment of the latter type runs is that an act which, as an isolated instance, is unlawful but not criminal may, by repetition, impute disorderliness to a premises and so become the subject of indictment and punishment. Cf. Haring v. State, 51 N.J.L. 386; affirmed, 53 Id. 664. Plaintiff in error argues therefrom that the court's charge was incorrect. That reasoning would be sound if the statute, by fair intendment, required the inhibited act to be habitual in order to constitute the crime. But the language of the statute (R.S. 2:135-3, supra) is "habitually or otherwise." "Habitually" and "otherwise" are in juxtaposition with antithetic effect. They are separated only by the co-ordinating particle which marks an alternative. They are clearly used to signify that the named acts are misdemeanors even if not done habitually. The next question is whether the words "habitually or otherwise" relate to "gambling in any form." By meticulous grammatical construction perhaps they do not. But the Court of Errors and Appeals has construed them as doing so. The language of that court follows: "The pertinent part of the section of the Crimes Act therein alleged to have been violated provides that any person who shall habitually or otherwise keep a place to which persons may resort for ...