Hall, McGeehan and Broadhurst. The opinion of the court was delivered by Hall, J.s.c. (temporarily assigned).
[46 NJSuper Page 164] Defendant appeals from a judgment of conviction in the Bergen County
Court, following a trial without a jury, on an indictment charging a violation of N.J.S. 2 A:121-3(b). This section makes any person guilty of a misdemeanor who "knowingly possesses any paper, document, slip or memorandum that pertains in any way to the business of lottery or lottery policy, so-called, whether the drawing has taken place or not." The only questions presented to us are whether certain printed cards found on the defendant's person fall within the coverage of the statute and whether the State was required to prove, as an essential element of the crime, the existence of an actual lottery related to the items in defendant's possession, in the light of N.J.S. 2 A:121-5.
The State's evidence showed that on August 8, 1956 defendant, who had been under surveillance by the Hackensack police department for at least the two preceding days, apparently on suspicion that he was engaged in the lottery or numbers business in some fashion, was asked by two members of the force to come to police headquarters. Found in his wallet there were five cards, three of one kind being identical and two of another kind being substantially so. The defendant testified that these cards were not in the wallet, but in his pocket held together by a rubber band, when he was asked to remove the contents of his clothing by an officer at headquarters, and that thereafter he placed the cards in the wallet at the direction of the officer. This variation in the testimony makes no difference on this appeal.
The three identical printed cards read:
The Numbers will be taken from the Total
Then followed an example, under a heading of that word, consisting of a seven digit number with arrows over and pointing to the fourth, sixth and seventh digits, with this language printed below the number:
"1st One Fourth from RIGHT
Last Two As Arrows Indicate"
One of the other two printed cards read:
"BEGINNING JANUARY 3, 1956