On appeal from the Monmouth County Court, Law Division (Criminal).
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 Wachenfeld, J.
The Monmouth County grand jury returned an indictment charging the defendant with maintaining a place to which persons might resort for gambling, in violation of N.J.S. 2 A:112-3. The defendant was convicted after trial by a jury and appeals the judgment. We granted certification prior to argument in the Appellate Division.
The only question raised on appeal is the propriety of a portion of the court's charge to the jury which in effect determined that the operation of the game in question, called "Skillo-Basket," which had been demonstrated to the jury during the course of the trial, constituted gambling as a matter of law under the recent decision of State v. Ricciardi, 18 N.J. 441 (1955).
The principal device used in the game of Skillo-Basket is the familiar "wheel of chance." The wheel revolves on an axle at a 30- to 45-degree angle and has a wire mesh screen and a series of evenly spaced pins enclosing its circumference. It is divided into ten sections or baskets by painted lines and each section is assigned a number or other designation corresponding to spaces marked on the board or counter in front of the players.
At the times charged in the indictment, there was outstanding a preliminary injunction issued by the Chancery Division restraining the prosecutor and other law enforcement agents from interfering with the defendant's operation of the game when played in compliance with certain rules of play expressly contained in the court's order.
According to the rules so set forth, the game could be played by any number of players, each of whom wagered a sum of money by placing it on a space on the counter corresponding to a section of the wheel. One player, "selected" by the others, would throw a cork ball onto the wheel after
it was set in motion by the attendant, the object being to cause the ball to come to rest in the desired "basket" or section of the wheel. Those who had placed their bets on that section received prizes. In other words, the game was the usual type of wheel-of-chance contest, with the refinement that one of the bettors, instead of the attendant, set the ball in motion.
The Chancery Division apparently was of the opinion that when played in such fashion, the element of skill was sufficiently dominant to nullify or remove the taint of gambling from its operation. The issuance of the injunction, however, presents no problem here as the defendant, from the record, is satisfied with the manner of its disposition at the trial level.
The State's witnesses testified the contrivance was not operated by the defendant in accordance with the approved technique, in that the attendant threw the ball onto the wheel rather than one of the players. The operation in this respect was demonstrated to the jury in the courtroom.
The defendant denied the game was manipulated in the manner described by the State's witnesses and insisted the rules approved by the ...