On appeal from Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
The defendant was allowed certification to review an Appellate Division judgment affirming his conviction in the Bergen County Court of the crime of bookmaking contrary to R.S. 2:135-3. State v. O'Shea, 28 N.J. Super. 374 (1953).
The State's proofs showed that two Hackensack police officers Boulais and Hardy, acting on a complaint, had an automobile service station in Hackensack under surveillance on July 23, 1951. At 11:05 A.M. on that day defendant drove his car into the service station and remained there for
35 minutes until 11:40 A.M. When he drove away the officers followed in their squad car until he stopped at an intersection to wait for a traffic light change. Officer Hardy left the squad car and entered O'Shea's car, at O'Shea's right. When the light changed O'Shea on Hardy's instructions drove across the intersection and stopped his car at the curb. Boulais left the squad car and walked back to the driver's side of O'Shea's car. The officers told O'Shea he was wanted at police headquarters for questioning, and Boulais started back to the squad car. At that point O'Shea put into his mouth five papers which he attempted to chew and swallow. Boulais turned back and the two officers struggled with O'Shea until he disgorged the papers. It was proved at the trial that four of the papers were betting slips and that the fifth recorded accounts with bettors in addition to recording bets.
At police headquarters O'Shea was searched and on his person were found two copies of a "scratch sheet," The National Racing Programs, published that day, July 23, 1951, a copy of the Joe and Asbestos Sports Weekly, also of that date, a pad of white paper measuring four by six inches, one white business card imprinted with the names "Johnny and Tom" and a Hackensack telephone number, as well as checks totalling $260 and $156.37 in cash.
An expert witness testified that two of the betting slips which O'Shea had attempted to swallow bore notations which, read with the scratch sheet, showed bets on horse races to be run that afternoon at Monmouth Park, New Jersey. The expert also testified that the notations on another of the papers, a blank deposit slip of the Bogota National Bank, Bergen County, showed both bets and accounts of various bettors.
O'Shea moved for a judgment of acquittal at the close of the State's case upon the grounds that (1) bookmaking was not proved, and (2) even if bookmaking was shown, the State had not proved venue, that is, that the crime was committed in Hackensack as alleged in the indictment. The motion was denied, and O'Shea put in his defense, testifying in his own behalf.
The Appellate Division found that the evidence on the State's case supported an inference of bookmaking but was inadequate to support a finding that the crime was committed in Hackensack. The conviction was sustained, however, upon the basis that the deficiencies of the State's proofs to prove venue were supplied in the defendant's own testimony.
We agree that the proofs on the State's case amply sufficed to raise a jury question whether O'Shea was engaged in the crime of bookmaking within the tests laid down by our decisions. See State v. Morano, 134 N.J.L. 295 (E. & A. 1946); State v. Bogen, 23 N.J. Super. 531 (App. Div. 1952), affirmed 13 N.J. 137 (1953); State v. Rhams, 14 N.J. 282 (1954); State v. Maranz, 18 N.J. Super. 478 (App. Div. 1952), certification denied 10 N.J. 309 (1952); State v. Lennon, 3 N.J. 337 (1949). There is much more here than the mere possession of things appropriate to the bookmaker's calling suggested on behalf of O'Shea. His possession under the circumstances present imports the commission of the crime, or at least a jury could so find, when viewed against the setting of his attempt to suppress evidence, "always a prejudicial circumstance of great weight," 1 Wharton, Crim. Ev. (11 th ed.), sec. 115, and the expert testimony that two of the slips noted bets on horse races to be run that very afternoon at Monmouth Park and that another, the bank deposit slip, noted accounts with bettors in addition to noting individual bets.
We think that the same proofs also justified a jury finding that the crime was committed in Hackensack, and we do not agree with the Appellate Division that O'Shea's testimony must be drawn in to prove that fact. We therefore have no occasion to consider, and expressly reserve, the question whether the conviction of a crime may be sustained if the accused, and not the State, completes the proof as to the venue of the crime. O'Shea's attempt to swallow the evidence of bets taken and of accounts with bettors when accosted by the officers, following so closely ...