On appeal from the Essex County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. The opinion of the court was delivered by Oliphant, J.
We certified the cause here on our own motion, R.R. 1:10-1(a). This is an appeal from the convictions of the defendants-appellants, Drutler Smith and Herbert Smith, in the Essex County Court on indictments charging them with unlawfully and knowingly having in their possession lottery slips contrary to the provisions of N.J.S. 2 A:121-3, and the conviction of Herbert Smith on a companion indictment charging that he "being the owner" of certain named premises "where the business of lottery or lottery policy so called was being carried on, did knowingly by himself permit such building to be so used contrary to the provisions of N.J.S. 2 A:121-3."
The second count of this companion indictment charged Herbert Smith "did knowingly by his agents permit such building to be so used" for lottery purposes contrary to
N.J.S. 2 A:121-3. At the close of the entire case, the trial court dismissed this count of the indictment on the ground that there was no proof of agency. A motion of a co-defendant for acquittal was granted at the close of the State's case.
The defendants were arrested in a raid made jointly by state enforcement officials, State Police, prosecutor's detectives, and local police, who, armed with a search warrant, entered the premises at 22 Ninth Avenue, East Orange, New Jersey. The evidence gathered before they arrested the defendants is extensive and convincingly indicative of the purpose for which the premises were used. The State's brief consumes five pages just cataloging the evidence of the operations conducted on the premises. The police seized there 27 envelopes of lottery slips, a large amount of money, bills and coins in bags and wrappings, all cached in various places, a safe containing over $4,000, two ledger books, 14 unused lottery books, an adding machine and two cartons containing 435 new books of the type used in lotteries. During the raid the police answered incoming telephone calls and testified that the calls were inquiries relating to the winning lottery numbers "333 and 339" for the day in question.
In the face of such evidence Herbert Smith did not take the stand. The appellant's defense was that they were framed by the police, which suggests, in view of the amount of confiscated evidence, a task of considerable magnitude, that would have presented a difficult and sizeable problem to collect and transport the above materials to effectuate such a result. It hardly could have escaped neighborhood attention.
The appellant's first point relates to the applicability of N.J.S. 2 A:121-3(c) to the facts here. This section, inter alia, provides:
"Being the owner of a building or place where any business of lottery or lottery policy, so-called, is carried on knowingly, by himself or his agent, permits such premises to be so used -- is guilty of a misdemeanor."
The argument is that the Legislature in this section only intended to proscribe the act of the owner, by himself or acting by his agent, from allowing others to use the building for lottery purposes and that the Legislature did not intend this section to apply where the owner used such building for himself for lottery purposes. In such case they assert N.J.S. 2 A:112-3 applies and that the petit jury here convicted on proof relating to N.J.S. 2 A:112-3 with a resulting material and fatal variance since the indictments here were grounded on N.J.S. 2 A:121-3(c).
Literally, N.J.S. 2 A:121-3(c) suggests operation by the owner's permission; but one who operates a lottery in a building "permits such premises to be so used." If he permits others to violate the law in this regard, he is equally guilty when he performs the operation himself. He is just as much responsible whether he uses it himself for such purpose or ...