On appeal from Superior Court, Appellate Division.
For affirmance with the opinion -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For affirmance in toto -- Justice Wachenfeld. For reversal -- Justice Heher. The opinion of the court was delivered by William J. Brennan, Jr., J.
We certified upon the State's petition the judgment of the Appellate Division reversing Costa's conviction in the Bergen County Court upon an indictment for keeping a gambling place in violation of R.S. 2:135-3, since superseded by N.J.S. 2 A:112-3. 10 N.J. 317 (1952).
We are not in accord with the opinion of the Appellate Division, 20 N.J. Super. 28 (1952), that the trial court should have granted Costa's motion for acquittal and that it was error to comment in the charge upon Costa's failure to take the stand. We agree, however, that Costa is entitled to a new trial as plainly in the circumstances of the case he suffered manifest wrong and injury by the admission into evidence of the five indictments against Joseph Doto ("Joe Adonis"), James Lynch ("Piggy Lynch"), Salvatore Moretti ("Solly Moore"), Arthur Longano and Anthony Guarini, charging each with the identical offense charged
to Costa, and upon each of which indictments are notations showing that the person indicted entered a plea of non vult thereto and was sentenced and fined. In our view the prejudice to Costa resulted, not for the reason given by the Appellate Division that if the indictments were introduced to affect the credibility of the witnesses the State produced no evidence from the five to support the charge against Costa, as we think the State did obtain relevant testimony from those witnesses when they were recalled to the stand, but because the substance of the contents of the indictments and the facts of the pleas of non vult thereto having once been elicited on the oral testimony of the witnesses the indictments themselves were not admissible in evidence, and, in the circumstances of this case, their presence before the jury must have had the plainly injurious effect of having the jury consider them for the improper purpose of evidencing Costa's guilt and to lead them to find that, as the five admitted the commission of the crime in the period charged, Costa must also be guilty of having committed it at that time.
The indictment is that Costa, contrary to the statute, between January 24, 1949 and March 31, 1949 "did wilfully, knowingly and unlawfully keep a certain place known as Costa's Barn, or Costa's Garage, Route 6, in the Borough [of Lodi] and County [of Bergen], with intent on the part of him, the said Leonard Costa, that persons might and should resort thither for the purpose of gambling with dice."
The garage was built for Costa by his father sometime around 1943. Thereafter and throughout the period in question Costa had exclusive possession and control of it, without obligation for rent. His counsel conceded on his opening that prior to August 1948 "this barn was used for a gambling casino but stated Costa's position to be that after August 1948 and particularly in the period charged "the place was never used as a gambling casino." However, one Seidenberg testified that on at least one night between January 24, 1949 and March 31, 1949, he was transported
there by automobile from New York City for the purpose of gambling with dice and that he did gamble with dice there on that occasion. This testimony was sufficient evidence to support the allegation in the indictment that persons might or should resort there during that time for the purpose of gambling with dice. Proof of frequency or habitual repetition of such activity during the period charged is not required. Proof of even a single instance suffices. State v. Clark, 137 N.J.L. 10 (Sup. Ct. 1948), affirmed 137 N.J.L. 614 (E. & A. 1948).
There was also evidence from which the jury could infer that Costa knew of and permitted the use of the garage for gambling with dice during such period. His brother testified that Costa repaired cars in the garage during such period "at night and whenever he had the chance, at day or night." There was also testimony by the witness Grippo, chauffeur for Anthony Guarini, that when he visited the garage with Guarini "in the spring of 1949" he saw "crap tables" there. Such proof of Costa's direct exposure to events going on in the garage justified a finding by the jury that he must have come to see and know about and to have permitted them. 2 Wigmore, Evidence (3 d ed. 1940), sec. 245, p. 43.
It is true that the statutory offense requires proof of an additional ingredient not necessary to be shown upon an indictment for keeping a disorderly house. The common law offense is established when it is proved that the defendant permitted his place to be used by persons whose conduct to his knowledge rendered the place disorderly, whatever his intent may have been. Proof of the statutory offense, however, must reach beyond, to his intent, and support the inference that the defendant intended that persons should resort to the place for the purpose of gambling. State v. Ackerman, 62 N.J.L. 456 (Sup. Ct. 1898); State v. Griffin, 85 ...