Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
Defendant was tried by court and jury on indictments charging (1) possession of lottery slips, etc., and (2) bookmaking. He was acquitted of the bookmaking charge, but convicted of the lottery offense, and appeals from such conviction.
The operative facts are not in dispute. On May 22, 1964 upon the authority of a search warrant, detectives of the Trenton Police Department entered defendant's market. When they arrived defendant was on the telephone. He had before him a piece of paper upon which there were writings identified at the trial by a detective's expert testimony as the recordation of lottery "numbers play" and horse race bets. Other items were seized, including another paper with numbers bets on it.
At the trial the State relied upon proof of the foregoing facts. An expert for the State gave the opinion that the papers mentioned were those of a taker, not a maker of bets, relying mainly on the inclusion of pairs of initials alongside
many of the items and the quantity of the play. Defendant testified that he was not engaged in bookmaking, or the business of lottery, but that he was merely a bettor and the seized papers were his personal memoranda of bets which he had placed. He explained the initials on the slips as being those of various individuals with whom he had placed his bets.
In submitting the lottery indictment to the jury the court charged:
"Now, I will get to the second indictment for possession of lottery slips. Within the State of New Jersey, on a certain day, by the defendant, in that he knowingly, willfully and unlawfully did have in his possession certain slips pertaining to the business of lottery and lottery policy, so-called, contrary to another New Jersey statute, which I quote as follows:
'Any person who knowingly [it's a matter of intent] 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, is guilty of a misdemeanor.'
With respect to the charge for possession the State must prove beyond a reasonable doubt that some writing in evidence represents numbers play and further, that they pertain in some way to the business of lottery or lottery policy. The State must prove that the papers in evidence pertain in some way to the business of lottery or lottery policy.
Then the language of the statute states: 'Any person who knowingly possesses any paper, document, slip or memorandum that pertains in any way to the business of lottery or lottery policy so-called, is guilty of a misdemeanor.'"
At the conclusion of the charge a colloquy between defendant's attorney and the judge took place which may be interpreted as a request by the attorney that the court charge the jury that if the papers in question were merely notations made by defendant of bets he had made, they would not constitute memoranda pertaining to the business of a lottery, and thus could not be made the basis of a verdict of guilty. The court had previously during the trial ruled against defendant on this point and declined to charge in ...