Eastwood, Bigelow and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The defendant, William J. Hogan, Jr., by this appeal contends that he was erroneously convicted upon an indictment charging him with "bookmaking" in violation of R.S. 2:135-3.
The indictment in question charged that: "William J. Hogan, Jr., between the First day of January, 1950, and the First day of March, 1950, and on divers other days and times prior and subsequent thereto, in the City of Wildwood, in the County of Cape May, aforesaid, and within the jurisdiction of this Court, willfully and unlawfully did make and take what is commonly known as a book, upon the running of horses, mares and geldings, contrary to the provisions of R.S. 2:135-3, and against the peace of this State, the Government and dignity of the same." The defendant did not testify, nor did he offer any witnesses in his defense.
The State presented seven witnesses who testified to bookmaking operations over a period of two years. Leolin Tice, a bookmaker, stated that he personally made bets on the results of horse races with the defendant for a year during 1949; that early in 1950, Hogan arranged with Tice to take care of his (Hogan's) horse bettors; that the business conducted by Hogan and that which Tice handled for Hogan was bookmaking; and that Hogan employed one Milton Kirby at $25 weekly to pay off and collect bets for him.
James Spring, another bookmaker, testified that Hogan employed him to run the bookmaking operation at his (Hogan's) home and that in August, 1950, he took bets over the telephone and personally. He testified that he telephoned
"lay-off" bets to a Tom Edge, in Wilmington, Delaware; that he turned the run-down sheets over to Hogan who did most of the collecting; that Hogan was often in the house during the operation; that he only knew about five per cent of Hogan's customers, some of whom he never saw, and that most of the time he turned the "tally sheets" showing what the bettors owed on the book over to William Hogan who went out to do the collecting, as well as the pay-off work; that he and Hogan each received 50 per cent of the profits from the operation and the earnings between August and December, 1950, were approximately $20,000; that Spring sent two Western Union money orders for $500 each out of the bookmaking earnings to Hogan when he was in Florida.
At the close of the State's case, the court denied the defendant's motion for a judgment of acquittal on the asserted ground that the crime charged had not been proven.
Upon the defendant's failure to take the stand or offer any testimony in his own defense, the case was submitted to the jury, which returned a verdict of guilty. The court thereafter imposed the sentence of a fine of $4,000 and imprisonment in the county jail for a term of nine months.
On appeal, the defendant asserts the following grounds for reversal: (1) that the trial court erred in denying his motion for a bill of particulars; (2) that the trial court erred in failing to grant his motion for acquittal on the ground that the crime alleged in the indictment, not having been particularized by a bill of particulars, was not established by the evidence adduced by the State; (3) that the trial court committed error in its instructions to the jury commenting upon defendant's failure to testify, the defendant asserting that he was not obliged to refute the proof of a crime not charged in the indictment; (4) that the trial court erred in its definition of bookmaking; (5) that the trial court erred in refusing to permit cross-examination of the State's witness, James Spring, as to an alleged deal with the Prosecutor; and (6) that the trial court erred in the sentence imposed upon the defendant.
The demand for particulars, referred to in defendant's first allegation of error, was similar to one denied in another case pending before the court. In the instant case, it was stipulated by the prosecutor and counsel for the defendant that the court's disposition of that application would be determinative of the defendant's application. Our review of the indictment indicates that the offense charged is one which implies a continuity of operation or non-instantaneous act; that its character is reasonably understood and that the time of the commission of the offense is designated with reasonable particularity.
As to the particularity of the offense charged, it is said in State v. Morano , a bookmaking case, 134 N.J.L. 295 ...