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State v. Mungioli

Decided: October 16, 1961.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LOUIS MUNGIOLI, DEFENDANT-APPELLANT



Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.

Foley

Defendant and one Myrtle Klein were indicted for knowing and unlawful possession of "divers papers, documents, slips and memoranda pertaining to the business of lottery and lottery policy, so-called, contrary to the provisions of N.J.S. 2 A:121-3(b), * * *." The case was tried in the County Court with a jury. Both defendants moved for a judgment of acquittal at the conclusion of the State's case; the motion of Myrtle Klein was granted; that of the defendant was denied. The defense rested without presenting any evidence; the jury returned a verdict of guilty, and defendant appeals.

On April 6, 1960 five members of the police force of the City of Camden, armed with a search warrant, raided an apartment in that city, in the course of a gambling investigation. The apartment was registered in the name of one DeLuca, and the telephone therein was listed in his name. Prior to entering the apartment the officers consulted with the superintendent concerning how they could effect entry without damage to the building. While they were waiting for the superintendent in his office, Myrtle Klein entered to report difficulty she was having with a wash tub. About

45 minutes later they entered the apartment. Defendant, who opened the door for them, was the sole occupant. Their search consumed approximately two hours during which time Myrtle Klein came in. The only evidence seized by the police was a slip of paper which was marked Exhibit S-1 at the trial, and a pad of which it was the top sheet. These were found on a telephone table near the front door. The exhibit bore some figures beneath letters, all written by pencil. The police were frank to say at the trial that these pencilled notations were "unconnected" with a lottery operation. One of the sets of letters at the top of S-1 was "Al," and it was testified that the defendant was known by the alias "Al Martin." One of the officers, Lieutenant Saunders, when asked, "Is there anything on that paper that connects it with Mr. Mungioli at all, or the defendant, Miss Klein?" answered, "it was in their place of residence near the telephone."

Close examination of the paper disclosed that it bore a number of indentations. Application of graphite powder to the sheet revealed that the indentations corresponded with a typical recordation of lottery or "numbers" play. Myrtle Klein and defendant were arrested and gave statements to the police, the contents of which do not appear in the record. In the course of interrogation defendant told Lieutenant Saunders, one of the arresting officers, that he paid the telephone bill.

Defendant assigns as error that: (1) S-1 was inadmissible because (a) there was no proof to connect it with the defendant, and (b) it was not a paper, document, slip or memorandum that pertained in any way to the business of lottery or lottery policy, so-called, within the meaning of N.J.S. 2 A:121-3(b); (2) the evidence was insufficient to enable a jury to find that defendant knowingly possessed the slip of paper in question; and (3) the court's charge with respect to "constructive possession" was inadequate.

Initially, we are concerned with the admissibility of S-1 since it was indispensable to the State's case. The crucial

evidence on which the exhibit was admitted was furnished by Lieutenant Saunders, in his capacity as an expert in knowledge of gambling paraphernalia. On direct examination the witness testified that lottery bets are normally recorded on a piece of paper and that the numerals placed thereon "can be put down with a pencil, pen, or they can even be put down with a ball point pen where you don't push the pen out." Later, when referring specifically to S-1, he testified:

"Q. There was no pen writing on there, was there?

A. There could have ...


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