Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
In this appeal from his conviction for "bookmaking" the defendant contends that the court erred in denying his motion for dismissal of the indictment at the close of the State's case; that there was
no proof that Lieberman was engaged in "bookmaking" contrary to R.S. 2:135-3; that the essence of the offense charged is repeated or habitual acts and that the evidence proved but one act of making and recording horse bets.
Victor Bogen, father-in-law of the defendant, was the owner of a candy and cigar store in the Township of Cranford. John W. Zalinsky, a witness for the State, testified that on March 26, 1951 he went to Bogen's store and made horse bets of $10 with the defendant Seymour S. Lieberman; that he made a duplicate slip, gave one to Lieberman and kept one himself. Thereafter, on the same day, Officer Rosendale arrested Zalinsky, searched him and found a slip. He questioned Zalinsky and then proceeded to Bogen's store accompanied by Officer Crissey and arrested Lieberman. Officer Rosendale found a $10 bill and a slip identical to Zalinsky's in the possession of Lieberman. Officer Crissey and another eye-witness corroborated Officer Rosendale's testimony.
At the close of the State's case the court granted the motion of the defendant Victor Bogen for a dismissal, and denied a like application of the defendant Lieberman. The renewal of Lieberman's motion for a directed verdict of acquittal was similarly denied.
The primary issue for determination in this matter is what constitutes bookmaking within the intendment of the statute, i.e. , whether it is requisite that there be repeated acts or habitual acts of making book to be considered a violation of R.S. 2:135-3, or whether a single act of bookmaking is sufficient to constitute a violation thereof.
R.S. 2:135-3 provides, inter alia:
"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 trotting, either within or without this State, of any horse, mare or gelding, or shall conduct the practices commonly known as bookmaking or pool selling, or shall keep a place to which persons may resort for engaging in any such practices, 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 any person who shall aid, abet or assist in any such acts, shall be guilty of a misdemeanor, and punished by a fine of not less than one thousand dollars nor more than five thousand dollars, or by imprisonment in the State Prison for not less than one year nor more than five years. * * *". (Italics ours.)
Defendant Lieberman contends that the statute contemplates repeated acts; that it is necessary to prove that a series of incidents occurred, and that an isolated instance of making or taking and recording bets or wagers is insufficient to constitute a violation of the aforementioned statute.
In the case of State v. Morano , 133 N.J.L. 428 (Sup. Ct. 1945), affirmed 134 N.J.L. 295, 299 (E. & A. 1946), our former Court of Errors and Appeals stated that the term "'bookmaking,' in common understanding, signified the making of a book of bets -- i.e. , the making or taking and recording or registering of bets or wagers on races and kindred contests; * * *." There is in that definition no requirement of multiplicity of acts. In fact, it refers specifically to "a book," not a series of repetitious occurrences. As stated in the Morano case, it was the making of a book of bets that was denounced, not a degree of error beyond which the acts assumed the character of legal wrong as being colored with progressive shades of gray deepening into a blackened sin against society in direct proportion to the number of incidents.
The plain language of the statute itself indicates that one becomes a misdemeanant in either of two ways -- doing the prohibited acts "habitually or otherwise," "otherwise" being opposed to habitually, or not out of habit, or acts not serial in nature. "Habitually" and "otherwise" are in juxtaposition with antithetic effect. The alternative would plainly appear to provide for single incidents, as well as repetitious acts. Furthermore, it must be remembered it is the verb "making" which is the key to the offense, not the object "bets" which defines the illegal activity. It is the act
(making of a book of bets) which is denounced as a single or repetitious transaction. See State v. Clark , 137 N.J.L. 10 (Sup. Ct. 1948), affirmed Ibid. 614 (E. & A. 1948).
In the concurring opinion of Mr. Justice Case in State v. Lennon , 3 N.J. 337, 345 (1949), our ...