McGeehan, Jayne and Goldmann. The opinion of the court was delivered by Goldmann, J.A.D.
[20 NJSuper Page 29] Defendant was tried in the Bergen County Court on an indictment charging that he did on
divers dates from January 24 to March 31, 1949, "willfully, knowingly and unlawfully keep a certain place known as Costa's Barn, or Costa's Garage" in the Borough of Lodi with intent "that persons might and should resort thither for the purpose of gambling with dice," in violation of R.S. 2:135-3. He did not take the stand or offer any witnesses in his defense. The jury returned a verdict of guilty. The court thereafter sentenced defendant to State Prison for a term of 18 to 24 months and fined him $3,500.
Defendant appeals and argues eight grounds for reversal, among them that the trial court erred in denying his motion for judgment of acquittal at the close of the State's case and again at the close of the entire case.
There was proof that defendant had control of the alleged gambling place. His father owned the property and built the garage thereon; he testified that he had turned the building over to defendant for use as a garage and repair shop. Defendant's brother also testified that during the period covered by the indictment defendant operated the garage and used it for repairing cars.
Intent is an essential ingredient of the crime here charged and an ultimate requirement of the proof necessary to support the indictment. State v. Clark , 137 N.J.L. 10 (Sup. Ct. 1948). In construing L. 1894, c. 101, sec. 2 (Gen. Stat., p. 1102), which is the source of our present law, the court in State v. Ackerman , 62 N.J.L. 456, 458 (Sup. Ct. 1898), said that the words of the 1894 act
"do not import the keeping of a place to which it is possible for persons to resort for betting, nor the keeping of a place to which persons do in fact resort for betting. Their fair import is the keeping of a place with the intent that persons shall resort thither for betting."
We have no "congeries of proofs" (State v. Clark , above) which would permit of an inference that the garage in question was a place maintained by the defendant with intent that people should resort there for gambling. For example,
we have none of the setting, character of preparations, nature of arrangements, or paraphernalia for gambling present in the Clark case. Equally lacking is any evidence that the defendant was at or near the garage during the alleged gambling operations.
The State having failed to establish a case against defendant, the trial court erred in denying his motion for judgment of acquittal made at the close of the State's case and again at the close of the entire case. Although this is dispositive of the appeal, two of the remaining grounds advanced by defendant deserve consideration.
In commenting upon defendant's failure to take the stand, the trial court charged that "where facts concerning the acts of the defendant are testified to which tend to prove his guilt and he, by his oath, can deny them, his failure to testify in his own behalf raises a strong presumption that he cannot truthfully deny those facts." Defendant properly objected to this portion of the charge.
There was a similar charge made in State v. Friedman , 136 N.J.L. 527 (E. & A. 1948). In reversing the judgment of ...