These cases have been combined for decision because they present the same legal issues in essentially the same factual settings. Both cases involve valid seizures of money from persons subsequently indicted, tried and acquitted of charges involving violations of certain gambling laws of this State. After the acquittals, the acquitted persons brought actions seeking a return of the seized monies under N.J.S. 2A:152-10. No outside party submitted any claim to the funds. The county treasurer opposed the actions, contending that he was entitled to demonstrate that the monies were connected with gambling activities and thus subject to forfeiture. He further contended that the acquitted party had the burden of showing a legitimate non-gambling use or connection for the money before he was entitled to its return. Testimony was adduced in both cases in the same manner: police officers testified as to alleged gambling activities and the acquitted party testified as to a legitimate business or personal use for which the money was earmarked. An evaluation of the testimony is unnecessary to a decision in these cases, since, upon reflection, the court concludes, as hereinafter set forth, that testimony, other than testimony as to ownership of the monies, was not vital to a proper disposition of these cases.
This proceeding is governed generally by N.J.S. 2A:152-7 to 10, and specifically by section 10 since there was an acquittal of the charge. Section 10 provides:
"If the trial or other ultimate disposition of such charge or charges, indictment or indictments, result in an acquittal or other final termination of such proceedings in favor of the person or persons so arrested, as aforesaid, in connection with which arrest the said money, currency or cash was seized or captured, then the person or
persons claiming to own the said money, currency or cash may within 2 years from the date of such acquittal or other final termination, in addition to any other remedy now provided by law, make application, on giving 10 days' prior notice thereof to the said county treasurer, to the county court of said county, for an order declaring such money, currency or cash to be the property of such person or persons, and ordering the same to be returned by the said county treasurer. At any time after the expiration of said period of 2 years from the date of acquittal or other final determination, the county treasurer may make application to the county court for an order to show cause why such money, currency or cash so seized or captured shall not be forfeited to the sole use and gain of the county; such order to show cause shall then be served upon the person or persons from whom said money, currency or cash was so seized or captured, in accordance with the rules of practice and procedure. Upon the return of said order, hearing shall be conducted in summary manner; provided, however, that proof, to the satisfaction of the court, shall first be established that no action or proceeding, then pending and undetermined, has been filed in any court of competent jurisdiction, seeking recovery."
The question which arises out of the construction of this language is whether or not the county treasurer is entitled to show the money in question was used as part of a gambling operation notwithstanding the fact that all persons arrested in conjunction with the seizure of the money have been ultimately cleared of the gambling charges.
The county treasurer argues that this is a civil proceeding separate from the criminal prosecution and the question of whether there was a "gambling operation" may be relitigated under section 10 of the act. He states, further, that the statute endows him with a continuing presumption that the money was used for gambling. This latter argument is based on the language of section 7 that any money seized in connection with an arrest for violation of any gambling law "shall be deemed prima facie to be contraband of law as a gambling device * * * and it shall be unlawful to return the said money * * * except [as] hereinafter provided."
There are no reported cases in New Jersey which construe section 10. In Farley v. Manning, 4 N.J. 571 (1950), the defendant was acquitted of the charges against him, but section 10 was not discussed since the county did not claim any interest in the money seized.
The recent case of McGill v. County of Essex, 87 N.J. Super. 367 (Law Div. 1965), held that a person against whom no indictment had been returned was not entitled to a return of her seized monies. Such a situation appears to be outside the statutory scope of N.J.S. 2A:152-10 since the failure of the grand jury to indict is not an "ultimate disposition" of a criminal charge. Rosetty v. Hamilton Tp. Com., 82 N.J. Super. 340 (Law Div. 1964). Cf. State v. Josephs, 79 N.J. Super. 411 (App. Div. 1963).
McGill discussed the policy underlying the statute, nonetheless, and quoted at length from State v. Link, 14 N.J. 446 (1954). Link involved money seized from an admitted bookmaker, and its holding was merely that a seizure need not be made at the same time as an arrest in order to cause a forfeiture of the money. The combination of Link's conviction and past record was the factor that persuaded the court that the seized funds were "gambling connected."
In Spagnuolo v. Bonnet, 16 N.J. 546 (1954), certain money was seized in a lottery raid on the Spagnuolo home. A. Edward Spagnuolo subsequently pleaded non vult to a lottery indictment. His mother then instituted suit for a return of the monies. In holding that the mother could not recover the seized money, the court examined the prima facie presumption that the money was deemed to be contraband and stated that the Legislature intended the presumption to be a rule of evidence "to be used in the trial of the claim of property created by the act." The court found that such presumption "places the burden upon the claimant of coming forward with evidence to overthrow it." These statements, however, must be ...