Freund, Stanton and Conlon. The opinion of the court was delivered by Stanton, J.s.c.
The appellant was found guilty as charged upon an indictment which charged that on July 18, 1949, and divers other dates, he "did make or take what is commonly known as a book, upon the running of horses, * * *."
The indictment was founded on R.S. 2:135-3, the pertinent language of which is as follows:
"Any person who shall habitually or otherwise, * * * 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, * * * shall be guilty of a misdemeanor * * *."
He urges that the indictment is fatally defective because the offense is charged in the alternative and that, notwithstanding Rule 1:2-19(b), which provides:
"No judgment given upon any indictment shall be reversed for any imperfection, omission, defect or lack of form, or for any error except such as shall have prejudiced the defendant in maintaining his defense upon the merits."
the judgment should be reversed. He cites State v. Flynn , 76 N.J.L. 473 (E. & A. 1909), in support of his contention. But there the decision turned on the fact that one of the matters charged in the alternative was not a crime. At page 477, Chancellor Pitney said:
"The difficulty with the indictment in the present case is of such a character that we think it is not cured by verdict and judgment, for the judgment finds the defendant guilty only of that with which he is charged in the indictment; and that does no more than to accuse him of one or the other of several matters, one of which is no offence against the law."
That is not the situation here and the cited case lends no support to appellant's contention.
The appellant cites the following language from the opinion of Justice Reed in State v. Hill , 73 N.J.L. 77, at 78 (Sup. Ct. 1906):
"The rule is entirely settled that if a statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count; but it must use the conjunctive 'and' where 'or' occurs in the statute, else it will be defective as being uncertain. Bish. Cr. Pro., sec. 581; People v. Davis , 56 N.Y. 95, 101; Commonwealth v. Grey , 2 Gray 501; State v. Price , 6 Halst. 203, 215."
There the statute denounced the uttering or exposing to view of obscene material. The indictment charged that the defendant did utter and expose to view obscene pictures. There was a general verdict of guilty. The judgment thereon was affirmed, although there ...