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State v. Sachs

Decided: October 24, 1961.


Conford, Freund and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).


[69 NJSuper Page 569] Defendant appeals from a conviction of the crime of maintaining a gambling resort (N.J.S. 2A:112-3) entered in the Passaic County Court on a jury verdict. He also appeals from the subsequent denial of his motion in arrest of judgment or, in the alternative, for a new trial. Two other defendants in the joint indictment were acquitted by the jury.

The reasons urged for reversal are: (1) denial of defendant's motion for acquittal; (2) the receipt of illegal testimony; and (3) improper communications with members of the jury.

The indictment charged that the defendant on or about October 25, 1959 "willfully and unlawfully did keep a place to which persons might resort for gambling and with intent that such persons might and should resort thereto for gambling * * *." N.J.S. 2A:112-3.

The State's case developed the following:

In response to a telephone complaint Andrew Soter, a Passaic County investigator, and Thomas Mahull and Joseph LaBarck, two members of the Paterson anti-gambling squad, made an investigation of activities at the Passaic County Citizens Club. Arriving at the address given, they proceeded some 20 feet up an alley adjoining the building, to a rear entrance. On knocking on the door and pushing a buzzer, a peephole in the door was opened and a man looked out. When they identified themselves as police, the peephole was closed and they heard someone inside say, "Cops, break it up." They continued to pound and push on the door and after about five or six minutes it was opened by a lookout or attendant and they were admitted into a vestibule which led to another door. In the vestibule there was a chair used by the man who had opened the door. They then knocked on the inner door and rang another buzzer for about two more minutes before they were admitted to the club room proper.

When they entered the club room they came upon about 35 men, some seated at tables and some standing. Some had cards in their hands while others did not. There were chips and cards on the tables and on the floor. There was a round table in the room covered with a green cloth and with a low-hanging light over it. Some five or six people were seated around the round table on which there were three decks of cards, about 100 chips of various kinds and colors, and a card-dealing box. Some of the chips had the

inscription, "Passaic County Citizens Club, ten cents in trade." No money was observed on the table or changing hands while the investigators were present, nor were any bets being made at that time.

When they entered the room one of the investigators, Detective LaBarck, testified as to the following conversation with the defendants, Sachs and War:

"* * * I stated to them, I said, 'How come on a Sunday whenever I come to this place to make an investigation when we get complaints that gambling is going on in here, why is the club barricaded?'

I said, 'During the weeks, I walk into this club and the doors are open and anyone can walk in.'

I said, 'We have had numerous complaints, I was here a month ago and I stated to you fellows that this Sunday afternoon gambling that's going on in the club has to be stopped.'

Mr. Sachs says to me, 'Well, I am an old man. What can I do? What can I tell you?'"

After that, Investigator Soter talked to the defendant. Sachs told him that he was the president of the club and in control of it, that Schultz was his assistant and that War had paid the rent for September and October 1959. (It later developed that the club had no president and that Sachs, not War, paid the rent.)

They then proceeded to search the premises and found a refrigerator containing some soda, milk and orange juice. The room contained, in addition, a candy counter and a steel cabinet. In the unlocked candy counter they found a National Racing Program (also known as a racing form or scratch sheet) dated October 23, 1959, and five pink slips which were identified as pool slips for betting on football games played on October 24, 1959. Two of these were players' copies indicating that bets had been made on them. In the cabinet, which had been locked, was found a ledger book containing a list of club members, some paid gas and electric bills, a paid telephone bill, two copies of bank money orders in payment of rent, a number of cigar boxes containing

decks of regular and pinochle playing cards, and some new decks of cards.

In trash cans and on the floor were found 12 additional pool slips for betting on football games played on October 24, 1959. In the kitchen was also found a dust covered frame and chart used in card playing. A total of $83 was found in the cash register and on the person of the defendant Sachs. Additional chips were also found on the premises.

Of the 33 persons, not including the defendants, who were found in the room, 15 were listed in the membership book. Of the remaining 18, 10 were residents of Paterson, 2 of Passaic and 1 each of Englewood, Fair Lawn, Haledon, Newark, North Bergen and North Haledon.

The heavy wooden doors through which the investigators had passed in entering the premises constituted the only entrance to the club. On the outer door there were two or three locks, a stout wooden crossbar made of 2 x 4's with iron handlebars, and a peephole. On the inner door there was another wooden crossbar and a one-way mirror. The rear windows in the room were covered with planks of wood.

The State introduced the testimony of a representative of the telephone company to the effect that the defendant had been billed for the club's telephone from January 3, 1958 to October 27, 1959. A representative of the electric and gas company testified that he had likewise been billed for the club's electric and gas service from 1953 to June 17, 1960.

At the conclusion of the presentation of the State's case, defendant moved for a judgment of acquittal on the ground that the facts adduced were insufficient to establish a prima facie case under the indictment. When the State's case is based upon circumstantial evidence, as here, the standard applicable upon such a motion is whether the evidence, viewed in its entirety and giving the State the benefit of all legitimate inferences therefrom, was such that the jury could properly find beyond a reasonable doubt that the defendant had committed the crime charged. State v.

Dancyger , 29 N.J. 76, 84 (1959). It has often been said that circumstantial evidence is not only sufficient but may also be "more certain, satisfying and persuasive than direct evidence." State v. Goodman , 9 N.J. 569 (1952), and frequently "more trustworthy than direct testimonial proof." State v. Rogers , 19 N.J. 218 (1955). This is particularly so in the case of an offense such as here charged, where direct evidence of the prohibited action is not often obtainable. On such a motion the court does not weigh the evidence but all legitimate favorable inferences of which the proof is susceptible are to be accorded the State's case in arriving at a determination of whether the evidence if believed, is sufficient to enable the jury to find guilt based on the criterion "beyond a reasonable doubt." State v. Goodman, supra; State v. Donohue , 2 N.J. 381 (1949); State v. Rhams , 14 N.J. 282 (1954); and State v. Rogers, supra. In coming to a determination, each piece of proof is not to be dealt with in severe isolation from the rest of the circumstances submitted but is to be judged and weighed as it relates to and is associated with all other relevant circumstances which comprise the State's case. Id. , 19 N.J. , at p. 232.

Viewed in its totality, the evidence adduced by the State was sufficient to call for a determination by the jury as to the guilt or innocence of the accused. The defendant had admitted to the investigators that he was the person in charge of the club. The location of the entrance to the premises, the security measures used to prevent entrance, and the equipment and evidence found on the premises, all tended to indicate that games of chance were being played. Although this is impliedly conceded by the defendant, he urges that the case is devoid of proof of the requisite elements of wager and reward, citing State v. Ricciardi , 18 N.J. 441, 444 (1955), and O'Brien v. Scott , 20 N.J. Super. 132, 137 (Ch. Div. 1952). True, none of the detectives saw any money passed and no bank or "cache" of money was found on the premises. But it is not necessary that

the accused be the "house" or "banker," or draw a "cut" from the games, to be guilty of the crime charged. The statutory crime is committed when the element of knowingly keeping a place where persons might and should resort for the purpose of gambling is combined with an intent that persons should resort to the place for the purpose of gambling. State v. Costa , 11 N.J. 239 (1953). Nor is it necessary that money actually pass at the time the activities are in progress, provided it is understood by the parties that payment of the amounts won is to be made thereafter. It is sufficient if the playing is for checks, notes, chips or instruments understood by those engaged in the game to represent value and afterwards to be exchanged for money. 24 Am. Jur., sec. 14, p. 408. Here some of the chips found indicated that each was good for "ten cents in trade." Whether they were being used with the understanding that they represented "money or other valuable thing" was a question for the jury.

The defendant points out that with the exception of the football pool slips, all of the paraphernalia found on the premises was usable for completely innocent purposes. But when placed in the setting of an entranceway consisting of two heavy, strongly locked and barricaded doors, the outer one furnished with a peephole and the inner one furnished with a one-way mirror, with a sentry on duty in between, the facts immediately suggest an illegal enterprise. 24 Am. Jur., sec. 43, p. 428; cf. note in 33 L.R.A. (N.S.) 549. Where there is added to this the boarded up windows, the delaying tactics in permitting the police to enter the premises, and the admonition to those inside, "Cops, break it up," the picture presented points strongly to gambling rather than the innocent playing of cards for fun and amusement. Commonwealth v. Blankinship , 165 Mass. 40, 42 N.E. 115 (Sup. Jud. Ct. 1895); Commonwealth v. Warren , 161 Mass. 281, 37 N.E. 172 (Sup. Jud. Ct. 1894). There was thus evidence from which the jury could have concluded beyond a reasonable doubt that gambling was going on on the premises.

Defendant argues further that there was lack of proof of intent sufficient to take the case to the jury. But intent as a separate proposition of proof does not commonly exist. 2 Wigmore on Evidence (3 d ed. 1940), sec. 242, p. 38. It must ordinarily be discovered in the evidence of the defendant's conduct in the surrounding circumstances. State v. Costa, supra. Since his connection with the club and his direct exposure to its activities were admitted, it was open to the jury to conclude that he knew of and permitted the gambling activities and that he intended that the persons found there should come there to gamble. Id. , 11 N.J. , at p. 247.

As to the football slips which were offered in evidence without objection, the fact that they were for games played on the previous day does not militate against the court's ruling or the jury's finding. On the contrary, they could well support a finding that the payoffs on these games were made or to be made on October 25, the day of the raid.

Whether the evidence presented by the State was strong or frail, if it was fairly susceptible of diverse inferences, a fact question was presented. State v. Marinella , 24 N.J. Super. 49, 54 (App. Div. 1952). Considered in its totality, we hold that it presented a case for the determination of the jury, rather than the court, and the motion for acquittal was accordingly properly denied.

The defendant next contends that the trial court improperly overruled objections to certain testimony of Detective LaBarck and declined to strike the same when moved to do so.

During the course of the trial, Detective LaBarck described at length the nature and use of certain football pool slips which were found in the premises. On cross-examination by counsel for the codefendants, War and Schultz, he was examined as follows concerning them:

"Q. And you don't know to whom the bets were made, do you? A. No, sir."

Thereafter, over the State's objection and upon cross-examination by the same ...

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