Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendants Cavanna, Fernicola, Lordi, Martucci and Napurano were convicted of conspiracy "to violate the Criminal Laws of the State of New Jersey pertaining to the business of a lottery or lottery policy so-called, to wit: N.J.S. 2A:121-3." They appeal. The State filed a cross-appeal, but this has been abandoned.
Their first contention is that " N.J.S. 2A:121-3 is violative of the 14th Amendment of the Federal Constitution and Article 1, Paragraph 1 of the New Jersey Constitution of 1947," because it is "vague and uncertain" and "furnishes no ascertainable standard of guilt." This question was not raised below. Moreover, appellants have not complied with R.R. 1:7-1(c), which provides that "[i]f the questions
involved include any not presented to the court below, this fact shall be noted. The foregoing requirements are to be considered in the highest degree mandatory, admitting of no exception * * *."
We are not bound to consider questions not raised below, even though they be constitutional questions (Roberts Electric, Inc., v. Foundations & Excavations, Inc. , 5 N.J. 426, 429 (1950)), and we are especially reluctant to consider them when R.R. 1:7-1(c) is ignored. For the foregoing reasons we pass the attack upon the constitutionality of N.J.S. 2A:121-3 without discussion, except to say that we have studied it and find it without merit. Cf. State v. Hudson County News Co. , 35 N.J. 284, 291-296 (1961).
The five appellants, together with one Michael Criscuolo, were arrested on June 19, 1959 in the vicinity of 51 Madison Avenue, Newark, N.J., following a raid at that address where, according to the indictment, all six "did unlawfully and knowingly engage as messengers, clerks and copyists in rooms * * * where lottery slips, copies of numbers and lists of drawings were kept and used in connection with the business of a lottery * * *." At the trial the State, after proving the Newark raid and arrests, was permitted to prove, over defendants' objections, that on July 8, 1959 defendants Fernicola, Napurano and Criscuolo had been arrested in a raid on a lottery in North Bergen, Hudson County.
There was nothing in the evidence to connect the two lotteries except that they were both lotteries, that the same make adding machines were used at each location, and that Fernicola, Napurano and Criscuolo were present in North Bergen as well as in Newark. Nevertheless, the trial court charged the jury:
"If you conclude that the said defendants, Fernicola, Napurano and Criscuolo, were engaged in the operation of a lottery in North Bergen, as testified to by Lieutenant Dollar, and that such operation by them was part of the continuation of the conspiracy charged against all of the defendants and that said acts were in furtherance of said conspiracy, then such evidence must be considered by you and weighed with all the other circumstances in the case, as against
all of the defendants in this case and is not limited to be considered only against the defendants Fernicola, Napurano and Criscuolo.
On the other hand, if you conclude that said defendants Fernicola, Napurano and Criscuolo were not engaged in the operation of a lottery in North Bergen or that such action was not part of or a continuation of the conspiracy charged in the indictment on which these defendants are being tried or that said acts were not in furtherance of the purpose or scope of said conspiracy, but involved an independent act on their part or a separate and distinct conspiracy or crime, then the testimony of Lieutenant Dollar is to be entirely disregarded by you and you are to decide the case solely on the remaining evidence before you without any regard to the North Bergen incident testified to by Detective Dollar and the other officer."
The jury acquitted Criscuolo, in spite of the fact that he had been arrested in Newark and in North Bergen, but convicted the five appellants. All five contend that the admission of the evidence of the July 8 raid in North Bergen, together with the charge above quoted, constituted prejudicial error. They contend that the proof of the North Bergen raid "constituted a substantial and fatal variance from the offense charged in the indictment" and improperly brought in proof of another offense "as tending to establish the commission of the crime charged in the indictment," citing Kotteakos v. United States , 328 ...