For reversal -- Chief Justice Weintraub and Justices Proctor, Goldmann, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Goldmann, J. (temporarily assigned).
[52 NJ Page 82] The sole question on this appeal is whether a person may be found guilty and
convicted under N.J.S. 2 A:112-3 for knowingly keeping a place "to which persons may resort * * * for gambling in any form," where the uncontradicted evidence was that the place in question was a policy bank or final dropping place for numbers collected elsewhere, and the only activities conducted there were the counting, adding up and recording of wagers made at other locations. The Appellate Division concluded that the proofs at the close of the State's case were inadequate to sustain a conviction and that defendant's motion for judgment of acquittal should have been granted. 94 N.J. Super. 125 (1967). We granted the State's petition for certification. 49 N.J. 365 (1967).
The matter stems from an investigation by the Newark police emergency squad on November 5, 1962 of a complaint that coal gas was emanating from the second-floor apartment at 500 North 9th Street, Newark. They gained entry by breaking a door pane and reaching in to unlock the door from the inside.*fn1 Two of the officers entered the apartment wearing gas masks. There was no one there, but they found a number of burning sulphur candles which were promptly extinguished and the place ventilated. Upon observing adding machines and slips which "looked suspicious," the police summoned detectives attached to the gambling squad. Their testimony was that they found three adding machines, lottery slips, pencils, pads, a hat initialed W.B.P., prescription bottles and an automobile driver's license bearing defendant's name, and a cigar box containing, among other papers, a bank book and a gas bill in defendant's name. Later that day defendant was taken into custody under an arrest warrant. In his possession were two keys to the apartment.
Detective Valickas, who qualified as an expert in the investigation of gambling offenses, conceded on cross-examination
that persons who want to gamble do not go to a place like the 500 North 9th Street apartment to make their bets. In his opinion, the apartment "was being used as the final drop for this here numbers, where they were counted, added up and recorded and was more or less the office of this particular lottery operation." The lottery slips found in the apartment, he said, represented bets which had already been completed and brought there merely for recording or final registration. He characterized the apartment as an "office" whose limited function was the gathering of bets made elsewhere:
"My understanding of a place like this is you have a few people responding to this location or maybe one * * *. All of these packages are picked up from different people when the bets are made. This is the final stop where they are counted and so on."
Captain Manghisi, an expert in lottery investigations, described the apartment as an "office" and said, "I would say no betting is carried on in a place like that." A person wanting to play a number would place his bet with a writer operating in a plant, office building or on the street. The writer, in turn, would put the lottery slips and bets he had collected into a small envelope, sometimes bearing his code initial, and hand it to a "runner" or "pick-up man" making his rounds in a car or on foot. The envelopes so collected would eventually be brought, either directly or through an intermediate drop, to an office or place where the money and slips would be separated. Manghisi said that the amount of play represented by the several collections of lottery slips found in the apartment respectively totalled $1,394.14, $2,413.03, and $1,602.62.
The proofs adduced by the State clearly showed that at no time during the presence of the police in the apartment did defendant make an appearance. No phone calls were received and no one entered the premises to gamble.
500 North 9th Street was owned by Bursam Realty Co., Inc. The records of the local realtor who managed the property
disclosed that no rents had been collected for the second-floor apartment during 1962. Defendant testified that he was a resident of 49 Delavan Avenue, Newark. He had arranged that one Hamilton Jones occupy the apartment, but he reserved to himself the right to use it "to relax and to entertain." He had observed nothing unusual during the time Jones occupied the apartment. Defendant admitted he had keys to the place, that he was an officer and director of the corporate owner of the building, and ...