Jacobs, Donges and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.
Pinsky and Schrier appeal from a conviction for bookmaking contrary to the provisions of R.S. 2:135-3. There is no dispute as to the facts from which the jury inferred guilt. Pinsky, in his testimony, offered an explanation of the facts but obviously the jury disbelieved him. Schrier did not testify.
Detective Schultz and two other police officers, on October 28, 1948, at 2:35 P.M., went to a grocery store on Walnut Street, Newark, and into a small room in back of the store where they found Pinsky talking over a telephone and Schrier seated at a table beside him. In the room was a radio, tuned to a station that broadcast racing news every half hour; and on the table a National Racing Program, a Daily Sports Bulletin, a paper captioned Alphabetical Index at Major Tracks, all dated October 28, 1948, and some memoranda that were the most important exhibits in the case: First, three or four dozen ruled sheets about 6 inches square, with the date October 28, 1948, stamped at the top. Each sheet had a name or identifying
symbol written under the date, for instance, "Dave 27," "Morris B." or "23A." Below were such annotations as these: "1 NY 15 Ann Franbee." Detective Schultz gave his opinion as an expert that the papers, telephone and radio constituted the equipment of a bookmaking office. He interpreted the sheets to indicate that certain persons, identified only as "Dave 27" or "Morris B." had bet with Pinsky and Schrier certain sums on certain horses. "1 NY" meant the first race at the Empire Track on the outskirts of New York; Ann Franbee was the horse, and $15 the amount of the bet. Then there were a score of smaller sheets from a pad, 3 by 5 inches, bearing various dates from September 12th to October 27th, on each of which were written 15 or so items reading, for instance, "Dave 27 C 40" or "Bob St. P 52.80." A "C" or a "P" appeared after each name. Some of the names are identical with those at the top of the larger sheets; others do not appear on the larger sheets. Detective Schultz expressed the opinion that the small memoranda showed the results of the betting on earlier dates: That Dave 27 had lost $40, and that the letter "C" meant that the defendants were to collect that sum from him. "P" meant that they must pay; Bob St. had won $52.80.
Pinsky testified that he was "a tipster or a turf counsellor;" that this was a rather common business connected with horse racing. The larger sheets indicated that clients who had received his advice over the telephone on the 28th, had told him that they were going to bet (but not with Pinsky) the amount set down on a horse that Pinsky recommended. If his client won, Pinsky was entitled to a 10 per cent. commission of the winnings. All these sheets, he testified, were in his handwriting or Schrier's. Questioned about the smaller sheets, he said that the line reading "Dave 27 C 40" meant that Dave 27, a customer of his, owed him $40 as his commission. His attention was called to the letter P in the line "Bob St. P 52.80," and he was asked,
"That indicates a payment to Bob in the sum of $52.80, doesn't it? Well, the P don't mean paid.
"What does it mean? I put my initials there. * * *
"Some of them have P in front of them, some have C in front of them, do they? That's right.
"What does the C mean? The C means that they owe me that much money.
"You are to collect that much? That's right.
"What does the P mean? Well, I used to put my initials in front of a ...