McGeehan, Bigelow and Jayne. The opinion of the court was delivered by McGeehan, S.j.a.d.
[25 NJSuper Page 26] The defendant George Rabatin was tried and convicted in the Burlington County Court on two indictments. One indictment charged that on December 27, 1951, he "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 the other indictment charged that on December 27, 1951, he "unlawfully did carry concealed in a certain automobile, which said automobile was then and there owned by the said George Rabatin, a certain firearm, to wit, a .32 calibre Colt Revolver, without having first obtained the requisite permit to carry the same, contrary to the provisions of R.S. 2:176-41 * * *." After the defendant and another witness had been heard on the defendant's case, the defendant rested and moved for a judgment of acquittal.
The proofs for the State were that State Trooper Perrine first saw the defendant on November 26, 1951, when the latter and another person then under surveillance by Perrine met in a diner on State Highway 25 and High Street in the City of Burlington. Thereafter, Perrine saw the defendant between 11:15 A.M. and 12:15 P.M. almost every day until December 27, 1951, and followed him occasionally. At the times when he was followed, the defendant always drove a 1948 black Cadillac sedan, registration number CT56M, to Roebling, New Jersey, and parked his car across the street from a store located at 18 Alden Avenue.
On December 27, 1951 several state policemen, including Perrine, met near the Burlington Country Club by prearrangement, for the purpose of making raids in certain places in Burlington County. State Troopers Skok, Olaff and Allen were assigned to make the raid on 18 Alden Avenue, Roebling. Perrine gave them the license number and a description of the defendant's Cadillac car, and informed them of the location of defendant's poolroom at 18 Alden Avenue. Perrine saw the defendant in Mount Holly at about noon on December 27, 1951, driving his Cadillac car, license number CT56M, and headed toward Burlington. When the three state troopers arrived at Alden Avenue, Roebling, at about 1:30 P.M. to make the raid, they saw the Cadillac, license CT56M, which had been described by Perrine, parked across the street from 18 Alden Avenue. Trooper Allen was detailed to search the car, while Troopers Olaff and Skok were to go into the building at No. 18. Allen found the car unlocked, and in the glove compartment he found five slips of paper on which were recorded bets totaling $99 on horse races to be run that day, and underneath the front seat on the driver's side he found a fully loaded .32-caliber Colt revolver. The revolver could not be seen from any position outside the car, nor from any position inside the car without leaning over in front of the front seat and looking underneath.
Officer Olaff attempted to enter by the front door of 18 Alden Avenue, but found the door locked. As Officer Skok
proceeded to a side door, a man opened this door and ran from the premises. Inside the premises the officers found the defendant and one other person. A Morning Telegraph and an Armstrong Sport Sheet , each dated December 27, 1951, were found on a table in the back room. There was no merchandise on the counter, no cash register, nor anything else to indicate that the store was open for regular business. On the defendant's person they found a car registration in his name for the Cadillac car which was parked across the street, keys, a blue notebook, and a scratch pad. At least two of the slips recording the horse bets, which had been found in the glove compartment of the car, were of the same size and paper as the sheets of the scratch pad found on defendant, and had a similar red gum thereon.
When Officer Olaff asked the defendant where his car was, he replied that his wife had it, and when asked about the gun found in the car, the defendant "just shrugged his shoulders." When Officer Perrine asked him what he was going to do with the gun, the defendant replied that "he had a lot of enemies."
The defendant admitted that he conducted a poolroom at 18 Alden Avenue, but denied that there was any horse betting or bookmaking going on in his place on December 27, 1951, or at any other time; denied that the slips recording the horse race bets were his; denied he had ever seen the gun before, and denied that the blue notebook and the scratch pad found on him had any connection with bookmaking or horse betting. He testified further that on the previous evening, December 26, 1951, he had loaned his car to a friend named Cardis and that he had not seen the car again prior to the raid. He stated that he carried the scratch pad in his pocket for use in figuring out his bills, and he explained the numerous entries in the blue notebook with both plus and minus sums and definitely named persons as records of moneys owed by him and to him. On cross-examination, he admitted that some of the items in the notebook represented horse bets, and testified that the bets were legitimately made at Garden State Track by him for other people. With
regard to the Morning Telegraph and the Armstrong Sport Sheet of December 27, 1951 found on the premises, he testified:
"Well, I buy those sometimes. Like I said, I like to bet horses, you know; like to see what's running, you know. Maybe next spring, you know, next summer, when the tracks will be open in Jersey so maybe I could, you know, study them so I could pick reyself a winner."
Cardis testified, as a witness for the defendant, that the Cadillac was loaned to him on the evening of December 26, 1951, and that he became intoxicated that evening, slept in the car all night, and about 1 P.M. on December 27, 1951 parked the car across the street from the ...