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State v. Morriggi

Decided: October 11, 1951.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SAMUEL MORRIGGI, DEFENDANT-APPELLANT



McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The appellant has been indicted and convicted of conducting and maintaining premises known as the home of "The Commerce Civic League" at No. 104 Commerce Street in the City of Garfield, Bergen County, to which persons resorted for the purpose of gambling, contrary to the statute. R.S. 2:135-3; State v. Clark , 137 N.J.L. 10 (Sup. Ct. 1948), affirmed 137 N.J.L. 614 (E. & A. 1948).

The evidence indicated that the recreational activities of the members of the League were pursued in the basement underneath a store. Entrance to the cellar was gained through a side door equipped with a sliding metal appliance which provided a peephole.

On the night of November 23, 1950, the premises were unexpectedly visited by the assistant prosecutor and accompanying officers. Of the 17 or more men in the chamber, ten or more at a table were abruptly interrupted in their game of cards. The monetary stakes were on the table. The present appellant frankly acknowledged that he was conducting the resort for gain and, indeed, subsequently signed a statement of similar import. In a private conversation with the assistant prosecutor the appellant implored the former to ignore his discovery and promised immediately to discontinue the use of the premises for such unlawful practices. At the trial the appellant did not avail himself of the opportunity to testify in his own behalf. Cf. Parker v. State , 61 N.J.L. 308, 313 (Sup. Ct. 1898), affirmed 62 N.J.L. 801 (E. & A. 1899).

The appellant's guilt of the offense charged seems to have been adequately established beyond a reasonable doubt. Actually the weight of the evidence is not here introduced as a subject of debate. The judgment of conviction is sought to be unseated by reason of certain errors claimed to have been committed by the judge in the conduct of the trial. Mere error in a ruling by the trial judge committed in the course of the trial does not afford a basis for reversal unless it is apparent from a consideration of the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury. Rule 1:2-19 (a); Rule 4:2-6.

Due process of law implies the requirement of a fair and impartial trial in which there is a legitimate and decorous recognition of the substantial rights of the defendant. The judicial process, however, in its pragmatical operation is not always the mirror of impeccability and the mould of perfection. It is a human process. An appellate tribunal with its available opportunity to review the transcription of the proceedings studiously and critically may often discern in a case sub judice insignificant, unessential, or hasty rulings which upon mature consideration are deemed to have been unphilosophical

and injudicious. To artificially inflate their materiality would serve only to impede the administration of justice.

We are presented with such an example in the present case. During the trial the assistant prosecutor testified that it was in consequence of the receipt of "some information from some people in Garfield, some woman, the wives, to be particular --" that he raided the premises. It may be inferred from the abbreviated appendix that he was cross-examined to some extent concerning the subject by the attorney of the defendant-appellant. The assistant prosecutor produced one of the letters but the objection to its admission in evidence was sustained. The deputy attorney-general who conducted the prosecution in alluding to the complaints in his summation to the jury is said to have intimated that they were of the import that "men were losing money and not bringing it home to their wives."

The summation was not recorded stenographically and therefore we do not have before us the precise language employed and its context. The summation was interrupted by the attorney of the defendant and the following comments by the court and counsel appear in the transcript:

"Mr. Eisenstein: There were complaints about the operation of this place, in that men were losing their wages and not ...


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