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State v. Doto

Decided: March 24, 1952.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH DOTO, ALIAS JOE ADONIS, DEFENDANT-APPELLANT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

[18 NJSuper Page 484] On May 28, 1951, the defendant was sentenced on four indictments -- Indictment 11, charging conspiracy, and Indictments 12, 20 and 16, each charging the keeping of a place to which persons may resort for gambling in violation of R.S. 2:135-3. He was sentenced

on Indictment 11 to not less than two nor more than three years in State Prison; on Indictment 12 to not less than two nor more than three years in State Prison and a fine of $5,000, the prison sentence to run concurrently with the prison sentence on Indictment 11; on Indictment 20 to not less than two nor more than three years in State Prison and a fine of $5,000, the prison sentence to run concurrently with the prison sentence on Indictment 11; and on Indictment 16 to not less than four nor more than five years in State Prison and a fine of $5,000, the prison sentence to run consecutively with the prison sentence on Indictment 11, but the operation of the prison sentence on Indictment 16 was suspended and the defendant placed on probation for a period of five years. On the appeals no question is raised about the sentence on Indictment 11, charging conspiracy, or about the amount of the fine or the period of imprisonment imposed on the other indictments.

Because the sentences on Indictments 12, 20 and 16 each impose a punishment of both fine and imprisonment, the defendant claims they are invalid. He relies on the 1940 amendment (L. 1940, c. 205, § 1) of R.S. 2:135-3, which provides that the crime charged in these indictments shall be punished "by a fine * * * or by imprisonment." (Italics ours.) The State relies on R.S. 2:135-3, as enacted on December 20, 1937, which provides that the crime charged in these indictments shall be punished "by a fine * * * and by imprisonment." (Italics ours.)

We find it necessary to set forth the statutory and constitutional provisions involved in the arguments.

L. 1894, c. 101, § 2 provided:

"That if any person or corporation shall habitually or otherwise conduct the practices commonly known as book making and pool selling, or either of them, or shall keep a place to which persons may resort for engaging in such practices, or either of them, 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, such person or corporation shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one

thousand dollars nor more than five thousand dollars, and by imprisonment in the state prison for not less than one year nor more than five years."

In 1897, art. IV, sec. VII, par. 2 of the Constitution of 1844 was amended to read as follows:

"No lottery shall be authorized by the legislature or otherwise in this state; and no ticket in any lottery shall be bought or sold within this state, nor shall pool-selling, book-making or gambling of any kind be authorized or allowed within this state, nor shall any gambling device, practice or game of chance now prohibited by law be legalized, or the remedy, penalty or punishment now provided therefor be in any way diminished."

In 1898, a revision of the Crimes Act (L. 1898, c. 235) was enacted and the 1894 act was repealed (L. 1898, c. 236, § 1). Section 65 of the 1898 Crimes Act provided:

"Any person or corporation that 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 book-making and pool selling, or either of them, or shall keep a place to which persons may resort for engaging in such practices, or either of them, 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 aiding, abetting or assisting therein, shall be guilty of a misdemeanor, and punished by a fine of not less than one thousand dollars, nor more than five thousand dollars, and by imprisonment in the state prison for not less than one year nor more than five years; and any corporation of this state convicted of offending against this section, shall be dissolved thereby, and its corporate franchises shall thereby become forfeited and void, without any other proceedings to that end."

The pertinent part of L. 1898, c. 235, § 65 was incorporated in the Revised Statutes of 1937 (L. 1937, c. 188) as R.S. 2:135-3, providing:

"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 ...


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