On motion to dismiss indictments.
Defendants, the Western Union Telegraph Co. (hereinafter called Western Union), Charles H. Frake, manager of the Bridgeton, New Jersey, office of the Western Union, and J. W. Donaldson, alias Leo Link, were indicted by the Cumberland County Grand Jury on June 5, 1950. Five indictments were returned by the grand jury, Nos. 5012 to 5016, inclusive, all emanating from bookmaking charges.
The general story garnered from the indictments is that Frake, the local manager of the Bridgeton, New Jersey, branch office of the Western Union, took and received bets on horses at the said office and relayed them via wire to Donaldson, alias Link, allegedly a bookie from Passaic County, New Jersey. A telegraphic fee was charged for the message which contained the name of the horses, the track, the number of the race, the amount bet and the betting positions, i.e. , win,
place or show. If success attended the operation, the better received his winnings minus telegraphic charges from the Western Union.
The named defendants move to quash all indictments. Indictment No. 5015 returned against Western Union, Frake and four others cannot be considered at this juncture, for the reason that extradition of the four other defendants has been refused by a sister state, and thus they are without the jurisdiction of this court. No application having been made by the State of New Jersey or the named defendants for a severance, the alleged deficiencies vis-a-vis this particular indictment cannot now be resolved. The other indictments will be considered seriatim. Forty-three reasons are assigned in support of the motions to dismiss the indictments.
No. 5012 (DISORDERLY HOUSE)
This particular indictment charges that Western Union and Charles Frake, on June 22, 1948 and on other days preceding June 5, 1950, maintained a disorderly house contrary to R.S. 2:103-1, where betting and bookmaking were permitted. Attack is made thereon under three grounds.
It is first charged that the indictment fails to state facts constituting an offense under the designated statute. It is here urged that factual specificity is absent and in its stead appears only conclusions of the pleader. On a motion to dismiss, the facts stated in the indictment as constituting the offense must be taken as true. State v. Tachin , 92 N.J.L. 269, 106 A. 145 (Sup. Ct. 1919), affirmed 93 N.J.L. 485, 108 A. 318 (E. & A. 1919); writ of error dismissed, Tachin v. State of New Jersey , 254 U.S. 662, 41 Sup. Ct. 61, 65 L. Ed. 463 (1920); 42 C.J.S., Indictments and Informations , § 214. The motion to dismiss will be denied unless the indictment on its face appears incapable of supporting a judgment of conviction. State v. Riggs , 91 N.J.L. 456, 106 A. 216 (Sup. Ct. 1918), Cf. State v. Shipley , 10 N.J. Super. 245, 77 A. 2 d 38 (App. Div. 1950).
Inspection of the challenged pleading reveals the required legal particularity. It sets forth, in brief, that the
defendants for gain, wilfully and knowingly maintained at premises situate at No. 82 East Commerce Street, Bridgeton, New Jersey, a disorderly house where persons could engage in betting, bookmaking and gambling. Neither imagination nor presumption need be indulged in. The language is plain and unadorned, yet it contains the essential legal requirements. The word "bookmaking" requires no explanation or definition. State v. Morano , 133 N.J.L. 428, 44 A. 2 d 786 (Sup. Ct. 1945), affirmed 134 N.J.L. 295, 47 A. 2 d 419 (E. & A. 1946). A place of public resort for persons to bet upon horse racing is a disorderly house. State v. Lovell , 39 N.J.L. 463 (Sup. Ct. 1887).
A telegraph office was never intended to be a spa where devotees of the "sport of kings" could place their bets, and when the plain language of an indictment so charges, an indictable offense is presented.
Research discloses no definition of a disorderly house at common law or in our statute, yet under the cases in our State any house which a jury finds to be open to and frequented by persons who so conduct themselves there as to violate the law and good order, may be a disorderly house. Burdick, Law of Crime , § 909; Russell on Crime (9 th ed.), p. 1381; State, v. Williams , 30 N.J.L. 102 (Sup. Ct. 1862); Brown v. State , 49 N.J.L. 61, 7 A. 340 (Sup. Ct. 1886); Bindernagle v. State , 60 N.J.L. 307, 37 A. 619 (Sup. Ct. 1897); State v. Berman , 120 N.J.L. 381, 199 A. 776 (Sup. Ct. 1938).
Reliance by the defendants is had on the case of State v. Solomon , 97 N.J.L. 252, 117 A. 260 (E. & A. 1922). This case is not helpful. There the indictment failed to charge an essential part of the statute upon which it was predicated. Here the crime of disorderly house is one of common law and all essential elements are contained therein. A plain reading of the indictment dissipates any converse suggestion.
This court is cognizant of the admonitions addressed to trial judges by the appellate courts -- "Don't quash except on clear and plain grounds." State v. Sweeten , 83 N.J.L. 364,
85 A. 309 (Sup. Ct. 1912); State v. Proctor , 55 N.J.L. 472, 26 A. 804 (Sup. Ct. 1893); State v. Johnson , 82 N.J.L. 330, 81 A. 657 (Sup. Ct. 1911); State v. Davidson, Judge , 116 N.J.L. 325, 184 A. 330 (Sup. Ct. 1936); State v. Micone , 134 N.J.L. 177, 46 A. 2 d 663 (Sup. Ct. 1946); State v. Russo , 6 N.J. Super. 250 (App. Div. 1950). Such grounds are conspicuous by their absence in this case.
It is secondly charged that a paucity of details appears without which the defendants are disabled from adequately preparing their defense. Suffice it to say that if bills of particulars are desired, an avenue of approach to the courts is contained in Rule 2:4-14. See also comment on this Rule in the Tentative Draft. Bishop, New Crim. Procedure , § 643; State v. Hatfield , 66 N.J.L. 443, 49 A. 515 (Sup. Ct. 1901), affirmed 67 N.J.L. 354, 51 A. 1109 (E. & A. 1902); State v. Penna. R. Co. , 84 N.J.L. 550, 87 A. 86 (Sup. Ct. 1918); State v. Dolbow , 117 N.J.L. 560, 189 A. 915 (E. & A. 1937); Joseph L. Sigretto & Son v. State , 127 N.J.L. 578, 24 A. 2 d 199 (Sup. Ct. 1942); State v. Eisenstein , 10 N.J. Super. 497, 77 A. 2 d 63 (Cty. Ct. 1950).
To buttress this charge, defense counsel cite Linden Park Blood Horse Ass'n. v. State , 55 N.J.L. 557, 27 A. 1091 (E. & A. 1893). In this case the defendant was convicted of the offense of keeping a common gaming house, an offense that was not among the specifications of misconduct that were in the indictment that made the house of the defendant a disorderly one.
The query that there presented itself to the court for solution was described by the court in this fashion: "The crucial test of the inquiry obviously is whether the specifications of the act that constitute the house a disorderly one, are necessary parts of the charge." This, as logic and reason demand, was answered in the affirmative. In the case at bar, we are not dealing with a trial and the court is not called upon to pass on a variance between the proof and the indictment. Neither is it called upon to pass upon generalizations in the indictment which lack a description of the crime of
which the defendants are accused. As stated herein under the first ground, the offense charged was certain and identifiable. Other cases cited by the defendants relate to the important and accepted principle of law that the indictment must set forth the facts with such clearness and necessary certainty as to apprise the person accused of the offense of which he stands charged. Such is the law and the present indictment satisfies this principle.
It is further charged under this point that the indictment defies grammatical construction and is unintelligibly drawn. The spine of this indictment can withstand such verbal shivers. True it is that the pleading lacks literary finesse and grammatical nicety, but such is not its function. State v. Sweeten, supra. The crime charged is not statutory; thus, no exact pattern need be followed. The language used is seemingly archaic and tenuous, albeit clear upon examination.
It is thirdly charged that the pertinent statute, R.S. 2:103-1, has no application to the facts in the case at bar for the reason (1) that the intent of the Legislature was to strike at the heart of the professional gambler's means of activity, and (2) that the Western Union does not share in any way from the profits or losses of gambling activities. The reasoning is tortuous. In the first place, the statute specifically refers to ten crimes disassociated with gambling, to say nothing of the common law crimes in the same category, also numbering ten. A plain reading of the statute dissipates the first reason advanced. It provides that "assaults * * * and all other offenses of an indictable nature at common law and not expressly provided for by statute, shall be misdemeanors." Among these common law crimes not provided for by statute are: maintaining a disorderly house (such as is the charge here); barratry; being a common scold; conspiracy (in addition to the statutory crime); eavesdropping; engrossing; forcible entry and detainer; forestalling; libel; obstruction of justice, and suicide. O'Regan & Schlosser, New Jersey Criminal Practice & Procedure, p. 441.
Independent research and study fail to disclose any decisions in the English-speaking world which make it a sine qua non for indictments in bookmaking cases that each defendant must share in the profits and losses. No cases are cited to support this unique theory, and in any event such contention is a legal absurdity. The law is that the permitting of bookmaking may constitute the operation of a disorderly house. State v. Lovell, supra.
This indictment contains six counts, and to properly identify the individual counts with the statute, reference must need be made to it. (Interpolated numbers 1 to 5, and 4(a) to (d) inclusive, added to segregate the disjunctive crimes). R.S. 2:135-3, provides as follows:
"Any person who shall habitually or otherwise, (1) buy or sell what is commonly known as a pool, or any interest or share in any such pool, or (2) 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 (3) shall conduct the practices commonly known as bookmaking or pool selling, or (4) (a) shall keep a place to which persons may resort for engaging in any such practices, (b) or for betting upon the event of any horse race, (c) or other race or contest, either within or without this State, (d) or for gambling in any form, or (5) 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."
The first count charges that the Western Union and Frake on June 22, 1948, and on other dates preceding April 26, 1950, wilfully, knowingly and unlawfully aided, abetted and assisted J. W. Donaldson, alias Link, and four other named persons "in what is commonly known as a book upon the running, pacing and trotting within and without the state of horses, mares and geldings, thereby aiding, abetting and assisting in the practice known as bookmaking, * * *" contrary to the form of the statute, etc. This count uses the specific language in sections 2 and 5 of the statute.
The second count charges that the said two defendants on the same dates wilfully, etc., aided and abetted the same parties "in the practices commonly known as bookmaking. * * *" This count uses the specific language in sections 3 and 5 of the statute.
The third count was dismissed on motion of the State and need not be considered.
The fourth count charges the two said defendants on the same dates with keeping "a place to which persons might resort for the betting upon the events of horse races. * * *" This count uses the specific language in section 4, phrases (a) and (b) thereof.
The fifth count was dismissed on motion of the State and need not be considered.
The sixth count charges the said two defendants on the same dates with keeping a place at No. 82 East Commerce Street, Bridgeton, New Jersey, "to which persons might resort for gambling in the form of what is commonly known as bookmaking. * * *" This count uses the specific language in section 4, phrases (a) and (d) thereof.
Attack is made thereon under 19 grounds, many of which are repetitious. Each ground which is not repeated will be considered separately.
Criticism is leveled at the first count because the pleader omitted to insert the statutory words "make or take." (See first four words in section 2.) The first count in this indictment, as heretofore stated, avers that the defendants "did aid, abet and assist (the six named persons) in what is commonly known as a book. * * *" Such objection, even if it can be viewed as serious, can be corrected by amendment, Rule 2:4-13. There this very situation is contemplated. The Rule provides that if there is any error in the manner of describing the offense intended to be charged, amendment may be permitted if another or different offense is not charged and the defendant is not prejudiced thereby in his defense on the merits. No new offense will be charged by amendment. Motion having been made by the State at the time of the
oral argument to amend on this score, the same was allowed. This course is consonant with the purpose and intent of our new Rules, Rule 2:1-2, and with the statute, R.S. 2:188-6.
The first and second counts are criticized because they fail to charge essential facts of aiding, abetting and assisting. It is argued that particulars are required -- that the bare use of the words just referred to constitutes merely the pleader's contention. The general rule is that in an indictment for an offense created by statute, it is sufficient to describe the offense in the words in which the statute describes it, but this rule is based upon and applies only to those cases in which the statute describes the offense with which it has to do. Unless this is so, the mere recital of non-descriptive words from the statute will not constitute, in reasonable completeness, a statement of the offense so as to relieve the pleader from averring all facts that go to make it up. State v. Schmid , 57 N.J.L. 625, 31 A. 280 (Sup. Ct. 1895); State v. Spear , 63 N.J.L. 179, 42 A. 840 (Sup. Ct. 1899); State v. Allgor , 78 N.J.L. 313, 73 A. 76 (Sup. Ct. 1909); State v. Borg , 9 N.J. Misc. 59; 152 A. 788 (Sup. Ct. 1931); State v. Bradway , 118 N.J.L. 17, 190 A. 778 (Sup. Ct. 1937); State v. Augustine , 15 N.J. Misc. 401, 191 A. 805 (Sup. Ct. 1937); State v. Gibbs , 134 N.J.L. 366, 48 A. 2 d 300 (Sup. Ct. 1946); State v. Jenkins , 136 N.J.L. 112, 54 A. 2 d 804 (Sup. Ct. 1947), error dismissed, 137 N.J.L. 209, 59 A. 2 d 372 (E. & A. 1948); State v. McGovern , 136 N.J.L. 115, 54 A. 2 d 812 (Sup. Ct. 1947); State v. Russo , 6 N.J. Super. 250, 71 A. 2 d 142 (App. Div. 1950); 31 C.J. , § 260, 42 C.J.S., Indictments and Informations , § 139.
Careful inspection of the statute reveals four sections which embrace the various offenses subject to indictment thereunder. The fifth section provides that any person "who shall aid, abet or assist in any such acts shall be guilty of a misdemeanor. * * *" A blank allegation that one aided, abetted or assisted in the violation of "the offenses mentioned in the statute" would be defective because it would not apprise one charged with crime of the offense charged against
him. Here we have a contrary situation. The acts with which the defendants are charged with aiding, abetting and assisting in, are delineated with particularity, even though the statutory language in the first four sections is used. This is so because the statute describes the offenses with which it has to do and the statutory words, aiding, abetting and assisting, are descriptive words, as are the offenses set forth in the first four sections.
The particularity is obvious. The nature of the accusation is manifest from the close adherence to the provisions of the statute. The words "wilfully and unlawfully did make and take what is commonly known as a book upon the running of horses, mares and geldings" have been held to have the clarity and certainty of statement required to apprise persons indicted for that misdemeanor of the offense they are called upon to meet. State v. Morano , 134 N.J.L. 295, 47 A. 2 d 419 (E. & A. 1947); State v. McFeeley , 136 N.J.L. 102, 54 A. 2 d 797 (Sup. Ct. 1947).
What defense counsel seeks to do is to isolate the words "aid, abet and assist," remove them from their associated surroundings, and say that these words, though following the statutory language, are in and of themselves defective. These three words and the references to the other four sections of the indictment must be construed with reference to each other and are in pari materia. No illumination is required in the reading of the statute. It clearly expresses the legislative purpose to render any person who aids, abets or assists in the perpetration of any of the violations referred to in the first four sections guilty of a misdemeanor; in fact to make the aider and abettor a principal offender. Such action as claimed is impossible of execution, as the law must be applied to the facts of the case and not to a hypothetical situation disassociated from the issue. These three words must be read in conjunction with the offenses contained in the first two counts of the indictment which themselves are contained in sections 2 and 3 of the statute. They were intended to be conjoined with specific offenses. The cases cited by defendants do not
sustain their contention. In each instance where the indictment was considered defective, there was uncertainty or ambiguity. Not so here. The statute describes the offenses in terms that in themselves will import with certainty the elements of the offense.
It is next argued that the first two counts of the indictment are defective because the disjunctive statutory words "aid, abet or assist" are charged conjunctively as one offense. Further, that these words are not synonymous, (i.e. , the words "aid and assist" are not synonymous with the word "abet"). Therefore, the pleading is in violation of the rule of law that when terms used in a statute are not synonymous they must be charged separately and disjunctively as individual offenses in separate counts. State v. Flynn , 76 N.J.L. 473, 72 A. 296 (E. & A. 1909); State v. Bove , 98 N.J.L. 350, 116 A. 766 (Sup. Ct. 1927). The argument presupposes that the meaning of the word "abet" is repugnant to the meaning of the words "aid and assist." The vice of this criticism is ...