For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Jacobs and Brennan. For reversal -- Justices Wachenfeld and Burling.
The judgment is affirmed for the reasons expressed in the opinion of Judge Brennan in the Superior Court, Appellate Division.
On appeal from a judgment of the Superior Court, Appellate Division, where Judge Daniel J. Brennan filed the following opinion. "This is an appeal by the defendant-appellant from a conviction had in the Union County Court for 'wilfully and unlawfully making and taking 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.'
"On the appeal, the defendant attacks the validity of the judgment of conviction.
"The first complaint of error deals with his lack of success in obtaining a judgment of acquittal on motions made to the trial court at the conclusion of the State's case-in-chief and at the conclusion of the entire case.
"In this prosecution, as in so many cases of its kind, the testing point of criminal involvement centers in circumstantial rather than in direct proof. In this posture of affairs, the trial judge was obliged to observe two cardinal principles in dealing with the motions made by the defendant for judgment of acquittal; to accord to the State's case the benefit of all legitimate inferences of which the proof was susceptible, State v. Cammarata, 12 N.J. Misc. 115 (Sup. Ct. 1934), affirmed 114 N.J.L. 274 (E. & A. 1934); State v. Bricker, 99 N.J.L. 521 (E. & A. 1924); to determine whether the evidence excluded every reasonable hypothesis except that of guilt, State v. Fox, 12 N.J Super. 132 (App. Div. 1951). But it is self-evident that the evaluation of the State's case must be determined, not as the defendant seems to urge, by fragmenting the proof and considering each factor in severe solitude from the rest, but by assaying the case in its entirety. The defendant affects to find the State's case entirely without reference to the circumstances and events which marked their discovery and acquisition by the State on the premises of the defendant.
"A brief panoramic view of the evidence offered by the prosecutor yields the following picture:
"The defendant conducted a confectionery store. On the date of the alleged crime, his establishment was made the subject of a 'routine check' by two detectives of the City of Elizabeth, who were members of the gambling squad. When they entered the store, they found about a dozen young men at the soda fountain but the proprietor was in a phone booth located towards the rear of the premises. One of the detectives, O'Connell, went to the booth where he had only a limited view of defendant's activities. He testified that defendant appeared to be talking and that he could see his right elbow moving and when defendant emerged from the booth, O'Connell saw in his hands a pad on which was written in the defendant's handwriting the names of a number of horses which were entered in races that day at various tracks. Alongside each horse's name was a number, the lowest being 2, the highest 10. A comparison of the horses' names on this pad with their names as carried in the index of an 'Armstrong scratch sheet' reveals some glaring misspelling suggestive of a 'by ear' rendition of the names and along with the other observed motions of the defendant while in the booth, strongly supports the thought that he was receiving and recording these names as the result of conversation with his counterpart in the telephone conversation.
"The other detective, Wycosky, fastened his attention on another individual, one Paul Cheety, who was also to the rear of the store and near the telephone booth. Cheety, he observed, was writing something on a piece of paper. The writing, which was confiscated, turned out to be a memorandum containing the names of two horses and other information such as the names of the tracks and the numbers of the races in which these horses were going to compete. One name was coupled also with the notation that it was an 'Entry.' A vertical line ran alongside of both names and to the right of that line appeared the numerical legend '1-1.' All of this admittedly was the product of Cheety's penmanship and could readily be accepted as a memorandum of Cheety's betting intentions on which he was wagering the sum of $2. This sheet, as did an Armstrong Racing Sheet, bore the identifying initials to show apparently that Cheety's activities were connected with both exhibits.
"Cheety, as appears from his testimony as a witness for the State, was a fairly steady customer of defendant's store. He testified that he had gone into a 'men's room' located in the rear of the store and upon coming out into the store proper he found the aforesaid Armstrong scratch sheet on the floor. After using the sheet and when he was ready to make a record of his betting likes, he went to a 'shelf' or 'bench,' as he variously described it, and there indited on a pad the memorandum referred to above. His course of action in this regard had the blessing of custom. It was to that shelf or bench that he had gone on previous occasions for just such a purpose, since there was kept available there a number of pads of the kind he used on this occasion. It may be well to remark here parenthetically that the piece of paper which Detective O'Connell found in defendant's possession and that on which Cheety did his writing appear to be of the same size and type.
"The argument made by the defendant that the Cheety memorandum lacks probative force because there is no proof of its transmission to the defendant, serves to point up some significant observations anent this piece of evidence. Cheety's testimony reveals that he followed his usual custom of repairing to the shelf and there recording the names of horses on one of the pads furnished by defendant. The pad had some kind of clasp or fastener on it. He did not detach a sheet, he merely recorded his selections on the top sheet of the pad. Presumably there it would remain for the defendant to pick up in furtherance of the betting transaction contemplated.
"Here it seems apropos to consider the existence of another facility that Cheety found open and available to his use on defendant's premises and, significantly enough, in an area of the store where he and the defendant were found. That is the Armstrong sheet which Cheety consulted prior to making his memorandum. Examination of this sheet shows various markings. In the 'Alphabetical Index' there appear a number of check marks, each to the left of a horse's name. Elsewhere in the sheet where the horses' names are grouped according to track and race a different style of marking happens to appear at each of the names that Cheety was interested in. To the left of each name was a small X encircled, to the right of the name appeared a small check mark. That Cheety marked up the sheet in at least two places is a fair inference. That someone else had made other marks thereon also would seem to follow. The sheet was not Cheety's any more than the betting pads were, and yet he apparently used it as he pleased as he used the pads.
"The presence on the premises of these useful adjuncts to a bookmaking enterprise are susceptible of much more than the innocent inferences that the Armstrong sheet was there for a purpose unrelated to the illegal activity in which the owner was allegedly engaged. And that the supplying of pads at an appointed place was merely designed to subserve the general public's urge to make miscellaneous notes as that urge might assert itself while they were patrons of defendant's store.
"We are satisfied that at the close of the State's case-in-chief the question of defendant's guilt or innocence was properly held to be a jury question. Cf. State v. Morano, 133 N.J.L. 428 (Sup. ...