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State v. Bogen

June 15, 1953


On appeal from Superior Court, Appellate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.


[13 NJ Page 138] Defendant Lieberman's conviction upon an indictment charging that 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," was sustained by the Appellate Division, 23 N.J. Super. 531 (1952); and we granted certification upon his petition, 11 N.J. 580 (1953).

The judgment of the Appellate Division is affirmed, and generally for the reasons stated in Judge Eastwood's opinion. The act proved against Lieberman constituted bookmaking within the definition pronounced by Mr. Justice Heher in State v. Morano, 134 N.J.L. 295, 299 (E. & A. 1946), namely, "the making or taking and recording or registering of bets or wagers on races and kindred contests." And, viewed as a single transaction, proof of the act sufficed to sustain the charge laid in the indictment. The statute by its express terms is violated by "Any person who shall habitually or otherwise " commit that offense. It is not requisite, as appellant insists, that the proofs show that the defendant under such an indictment "habitually is engaged in the business of making book," cf. State v. Costa, 11 N.J. 239 (1953); State v. Clark, 137 N.J.L. 10 (Sup. Ct. 1948), affirmed 137 N.J.L. 614 (E. & A. 1948).

The comments by the prosecuting attorney in his summation upon matters outside the evidence were highly improper. From the number of instances coming to our attention in the recent past, this irregularity on the part of prosecuting attorneys is unhappily too prevalent. If not conscious transgressions, and doubtless such is not often the case, they show at least a necessity to remind prosecutors once again of their primary function in the role of State's attorneys. Canon 5 of the Canons of Professional Ethics states it simply and forcefully: "The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done." The canon epitomizes Mr. Justice Sutherland's classic statement in Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935):

"The * * * [prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution

is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none."

No authority questions that the broadest latitude in summation must be allowed the prosecutor and defense counsel alike to advocate their respective positions before the jury in order that justice and right be done. But every statement of the rule in our own reports emphasizes that comment must be restrained within the facts shown or reasonably suggested by the evidence adduced.

In State v. Barker, 68 N.J.L. 19, 27 (Sup. Ct. 1902), Chief Justice Gummere expressly approved the principle laid down in People v. Fielding, 158 N.Y. 542, 53 N.E. 497, 46 L.R.A. 641 (Ct. App. 1899), declaring it to be error for the trial judge "to permit appeals by the prosecutor of the pleas to the prejudice of the jurors, based upon facts which have not been proved, but which rest wholly on his unsupported assertions," although "Where counsel, in his summing up to the jury, confines himself to the evidence in the case, what is said by him in its discussion, by way of comment, denunciation or appeal, affords no ground of exception." (Emphasis supplied)

The same distinguished jurist said, in State v. Lang, 75 N.J.L. 1, 8 (Sup. Ct. 1907), affirmed 75 N.J.L. 502 (E. & A. 1907), affirmed 209 U.S. 467, 28 S. Ct. 594, 52 L. Ed. 894 (1908):

"* * * It is necessary for the proper administration of justice that, in the summing up to the jury, counsel shall be given the widest latitude within the four corners of the evidence, and, so long as he confines himself to ...

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