No. A -- 79: For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. No. A -- 80: For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
We granted certification in these two cases to resolve a conflict between parts of the Appellate Division in construing N.J.S. 2A:121-3(b):
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."
In each case the defendant was convicted, after a jury trial, of violating the above statute. The issue raised by each defendant is that the jury should have been instructed that the statute does not apply to a mere bettor as distinguished from one engaged in the operation of a lottery business, and that possession by a bettor of notations made by him of his bets does not violate the statute.
Each defendant operates a store in the City of Trenton: Purdy a confectionary store and Melamed a grocery. Both stores were raided by the police under search warrants to which no challenge is made. In Purdy the police seized three
papers which were identified at the trial by a police expert as numbers plays. Purdy testified that the slips were notations of lottery bets which he himself planned to play but had not yet placed. In Melamed a number of papers were seized at the defendant's store and introduced at the trial. These papers were identified by the police expert as records of numbers bets. According to Melamed, these notations represented memoranda of bets he himself placed. Both defendants denied ever taking bets, testifying that they were mere players.*fn1
The Appellate Division, in an unreported opinion, affirmed the conviction in Purdy and held that the trial judge correctly charged the jury that although the papers "must pertain in some way to the lottery business, it must have a utilitarian purpose in a lottery business, not necessarily the lottery business of the defendant." In Melamed another part of the Appellate Division reversed the conviction, holding that the trial court erred in refusing defendant's request "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." 93 N.J. Super. 573 (App. Div. 1967). We granted Purdy's petition for certification, 49 N.J. 361 (1967), and the State's petition in Melamed, 50 N.J. 92 (1967).
Both defendants devote a substantial part of their briefs to the contention that N.J.S. 2A:121-3(b) does not apply to a mere bettor or player but was intended to reach only those engaged in the lottery business. Both defendants stress
the statutory phrase, "pertains in any way to the business of lottery" (emphasis added); they argue that "it is reasonable to assume that this phraseology was intended to cover possession only by those who were themselves engaged in the lottery business." The defendants contend that it would be anomalous to convict a bettor under N.J.S. 2A:121-3(b) for possessing a record ...