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State v. Spruill

Decided: November 16, 1953.


Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.


Defendant Spruill, a patrolman attached to the Rutherford Police Department, was indicted for nonfeasance in office in that he unlawfully and willfully neglected and omitted to perform the duties enjoined upon him by law, specifically, failing to suppress a disorderly house at No. 256 Union Avenue, Rutherford, wherein bookmaking was carried on contrary to law. The jury found him guilty, and he was sentenced to imprisonment for 1 1/2 to 3 years, and fined $1,000. Defendant appeals.

The State's evidence tended to show that defendant, while a member of the Rutherford Police Department, induced Joseph Bobrowski, a fellow member, to allow the latter's home to be used for the taking of bets on horse races. Defendant first broached the subject of making "easy money" to Bobrowski by allowing his home and telephone to be used for bookmaking, in March 1948. Bobrowski was to receive $50 a week, the telephone bill to be paid for by the users. After several conversations defendant brought one Lombardi to the Bobrowski home late in March and, in the presence of Mrs. Bobrowski, an agreement was reached for the use of the house and the telephone. The following day Lombardi brought two men to the house and they began to take bets by phone. A few days later defendant brought one Bologna, an electrician, to the house where, at defendant's request, he installed a telephone extension with a knife switch in the

basement. Defendant thereafter made the agreed $50 payments in cash to the Bobrowskis. The bookmaking operations continued for about four weeks until the latter part of April 1948, when they were discontinued upon notice to defendant.

The State produced as witnesses Bobrowski, his wife, Bologna, and employees of the telephone company. On cross-examination defendant's attorney showed that both Bobrowski and Bologna had been indicted for false swearing before the Bergen County grand jury in connection with its investigation into this bookmaking operation; that Bobrowski had pleaded not guilty and the charge was still pending; and that Bologna had pleaded non vult but had not yet been sentenced. Bobrowski testified that he hoped to get some consideration when his case was disposed of, as a reward for his testimony. Bologna indicated that he, too, was hopeful of receiving leniency as a result of his testimony. Defendant denied any connection whatsoever with the entire transaction. He produced seven character witnesses.

There was plenary proof which the jury could readily find credible, and did find credible as indicated by its verdict, that not only did defendant fail to suppress the bookmaking operations which he knew were being carried on at the Bobrowski home, but actively aided and participated in installing the entire operation.

Defendant's first point is that the trial court erred in refusing to charge the jury as requested. Counsel for defendant submitted 26 separate requests to charge, all of which were denied by the court "except as covered in the main charge." Counsel then excepted to that part of the charge in which the court defined and referred to character evidence, and to the court's refusal to charge the requests, particularly Nos. 19 and 20. In his brief defendant abandons all requests except the following, which he alleges were not covered in the charge:

"19. The evidence shows that the witness Joseph Bobrowski is under indictment and that his case has not yet been disposed of, and that the witness Joseph Bologna has pleaded guilty and has not

yet been sentenced. You should take these facts into consideration in determining the weight you give to their testimony for it is possible that the testimony of one or both of them may have been influenced by strong hope of favor or pardon.

20. You should carefully weigh and scrutinize the testimony of Bobrowski and Bologna and should carefully consider the extent to which such testimony has been corroborated by other witnesses on the subject.

24. Several of the witnesses produced by the State have admitted their criminality and therefore you have a right to find that their testimony may be colored by the fact that they hope to receive favor or pardon for ...

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