Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
Defendant appeals from a judgment of conviction for knowing possession of lottery or lottery policy slips (N.J.S. 2A:121-3(b)), entered following a jury trial.
The State adduced testimony that on December 3, 1966 defendant was possessed of certain slips pertaining to the business of a "numbers" game. At the conclusion of the State's case defendant moved for a judgment of acquittal on the grounds, inter alia, that the above noted statute did not prohibit possession of slips pertaining to the "numbers" game. This motion was denied.
Defendant reiterates the same argument as a basis for the reversal of his conviction. Implied in his position is the concession that the State's proof establishes that the slips in question did pertain to the business of "numbers."
N.J.S. 2A:121-3(b) provides as follows:
b. Knowingly 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."
Defendant points to the statutory language "whether the drawing has taken place or not" and argues that since the State's gambling expert, Detective Andrew B. Manning, testified that in the "numbers" game the winner is not selected, as it is for example in the Irish Sweepstakes, by a physical "drawing," defendant cannot be found guilty of a violation of the statute.
Detective Manning identified the modus operandi of the "numbers" game to be as follows: The winning number is determined by the last three digits of the daily total "mutual [sic] handle" (bets placed) at a designated race track.
Although the specific point here made has never before been advanced for adjudication, our courts in prosecutions for violations of the statute here involved, and of its predecessor, have consistently regarded the numbers game as a prohibited lottery. In ...