On appeal from the Bergen County Court.
McGeehan, Donges and Colie. The opinion of the court was delivered by Donges, J.A.D.
This is an appeal from the conviction of defendant, John Lennon, by the verdict of a jury, after trial in the Bergen County Court, on an indictment charging a conspiracy to violate the gambling laws of this State.
Appellant urges two grounds for reversal:
1. The indictment fails to allege an offense under the laws of New Jersey.
2. The allegations of the indictment were not proven.
The indictment charged, inter alia , that P. James Pellecchia, the appellant John Lennon, alias Jack Lennon, Albert Klausner, John Doe and Richard Roe, on or about June 1, 1944, and continuously thereafter, until on or about the 1st day of May, 1948, did "dishonestly, fraudulently, corruptly, falsely, knowingly, and unlawfully combine, unite, confederate, conspire and agree together and with evil intent to violate the gambling statutes of the State of New Jersey, namely, Title 2, chapter 135 of the Revised Statutes of the State of New Jersey," by said Pellecchia telephoning bets on the running of horses to telephones located in the Borough of Cliffside Park, in Bergen County, New Jersey, maintained and operated for that purpose by the defendants, John Doe, Richard Roe, and the defendant John Lennon, alias Jack Lennon, and that an account of the bets and wagers made by the said Pellecchia was kept by the defendant Lennon, who paid over to Pellecchia amounts of money, in payment of the bets won by Pellecchia, and that defendant Lennon, either personally or by his agent, Albert Klausner, collected from Pellecchia sums of money in payment of such bets as were lost by Pellecchia, and where such payments were made by Pellecchia by checks, the defendant, Lennon, cashed or deposited same at the United National Bank of Cliffside Park, Cliffside Park, New Jersey.
The trial court, in his charge limited the charge to a violation of R.S. 2:135-3. R.S. 2:135-3, as amended by chapter 205 of the Laws of 1940, provides:
"Any person who shall habitually or otherwise, buy or sell what is commonly known as a pool, or any interest or share in any 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, and punished by a fine of not less than one thousand dollars nor more than five thousand dollars, or by imprisonment in the State prison for not less than one year nor more than five years. Nothing in this section shall be construed to apply to pari-mutuel betting as authorized by the Constitution of this State and any statute passed in pursuance thereof."
Appellant argues that "bookmaking" necessarily requires the acceptance of money on a bet, for an event then undecided, and that, since the testimony disclosed that Lennon never received any money before the contingency of the wager was resolved the overt acts, with which Lennon was charged, do not constitute the crime of bookmaking, within the purview of the quoted statute. In support of this position, appellant relies on State v. Dudley , 127 N.J.L. 127 (Sup. Ct. 1941). In that case, the indictment charged the defendants with being "holders of a sum of money, betted, staked or wagered upon the results of a running race * * * thereafter to be run * * *." The indictment was under R.S. 2:135-7, which provides that "any person who shall be a stakeholder of any sum of money or thing which is bet, staked or wagered upon any running, pacing or trotting race of horses, mares or geldings, * * * shall be guilty of a misdemeanor."
In that case, under the allegations of the indictment, and the provisions of the statute, the factual question was whether the defendants were "stakeholders." The opinion of Mr. Justice Case, pointed out that the proofs did not support the charge that "stakes" had been held, but that the ...