Hughes, Hetfield and Mariano. The opinion of the court was delivered by Mariano, J.s.c. (temporarily assigned).
Defendants were convicted before a jury for making book on horse racing contrary to N.J.S. 2 A:112-3, which activity is characterized as a misdemeanor under the said statute, and they appeal.
While their argument is mainly addressed to the failure of the trial court to grant their respective motions for a judgment of acquittal at the close of the State's case, they also raise questions as to the admission of certain betting slips
into evidence and as to whether the jury's verdict was against the weight of the evidence.
The pivotal witness in this case is one Donelli. His testimony indicates that in January 1953 he made arrangements with the defendants, at defendant Kuznitz' store located in Linden, New Jersey, to take bets made by himself and those of fellow employees at the Merck Co. plant located in Rahway. The arrangements continued until November 3, 1953 when all concerned were arrested.
The plan was that Donelli would take bets during his lunch hour and phone them to Reilly or Kuznitz at one or another of a series of telephone numbers located in Linden, New Jersey, which were given to Donelli by Kuznitz when the original arrangements were made at Kuznitz' store. Initially Donelli would pay off bettors that won with money that he took in from unsuccessful bettors and account daily with Kuznitz. On several occasions during the existence of the daily accounting arrangements there was insufficient funds to pay the successful bettors and Donelli would phone Kuznitz and so advise him and Kuznitz in turn would leave money at his store for Donelli to use to make payment. Later these daily arrangements were changed to a weekly basis. On Saturday or Sunday an accounting would take place in Kuznitz' store. Donelli kept slips which he used to prove his weekly accounts. If there was any discrepancy in the accounts kept by Donelli and the defendants, and on several occasions there were, it became necessary to compare Donelli's slips with those of the defendants. The defendants' slips contained the registration and recording of the bets phoned to them in Linden by Donelli. Donelli's slips for the latter part of October were found in his room and were introduced into evidence by the State.
Donelli's testimony as to Reilly's activity is to some extent corroborated by Charkowski, his wife, and his mother-in-law at whose home there was located one of the telephones, the number of which was supplied to Donelli by Kuznitz. They testified that Reilly, with their permission, used the telephone five days a week, sitting by it most of the afternoon. All of
these witnesses stoutly refused to implicate Kuznitz, even when confronted with signed statements made to the police to the effect that Kuznitz was involved in the arrangements for the use of the phones. Similarly, all refused to admit that there was any arrangement to pay for the use of the phone although Mrs. Carkowski admitted that $25 a week mysteriously appeared on the dining room table which she used without inquiring as to its origin.
The case against Reilly, who failed to testify nor was called in defense by Kuznitz, was further strengthened by the testimony of a police officer, conceded to be an expert, that certain pieces of paper found in Reilly's room in Linden, New Jersey, were records and registrations of bets made on horse racing. Donelli's testimony against Kuznitz was entirely uncorroborated except for the fact disclosed by his own testimony, in defense, that large sums of money were found in his store. Kuznitz stated that the money was used to cash checks for teachers at a nearby school, but the secretary of the board of education testified in rebuttal that the time the money was found was between pay days for the teachers.
On a motion for judgment of acquittal the test is whether there is any legal evidence before the jury from which an inference of guilt can be legitimately drawn. State v. Bricker, Jr. , 99 N.J.L. 521 (E. & A. 1924); State v. Piccotti , 12 N.J. 205 (1953); State v. Huff , 14 N.J. 240 (1954); State v. Rhams , 14 N.J. 285 (1954); State v. O'Shea , 16 N.J. 1 (1954). On such a motion the trial judge is obliged to accord to the State's case the benefit of all legitimate inferences of which the proof was susceptible. State v. Rhams, supra; State v. Cammarata , 12 N.J. Misc. 115 (Sup. Ct. 1934), affirmed 114 N.J.L. 274 (E. & A. 1934).
In a jury trial it is not the function of the court to weigh the evidence or to determine the probabilities. This is a ...