For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Schettino, J. Proctor, J., concurs in result. Proctor, J. (concurring).
Defendants were tried by a jury on two indictments. The first contained one count charging defendants with possession of lottery slips. The second contained 16 separate counts for bookmaking, broken down into one count for each of the eight days on which there was evidence of horse racing bets and one count for taking baseball bets on each of those days.
Defendants were convicted on the possession charge and on 15 bookmaking counts. (The 16th bookmaking count, charging the taking of baseball bets on June 22, 1965, was dismissed by the trial court.) On one of the remaining 15 bookmaking counts, the trial court imposed upon each defendant a sentence of 1-3 years and a $2,000 fine. As to the other 14 bookmaking counts, the trial court suspended imposition of sentences. N.J.S. 2 A:168-1. On the first count, possession of lottery slips, the trial court imposed upon each defendant a sentence of 1-3 years to run concurrently with the bookmaking sentences.
On appeal, the Appellate Division, although sustaining the jury verdict, held that the inclusion of separate counts for two types of bets was "unnecessarily duplicitous." 97 N.J. Super. 28 (App. Div. 1967). It therefore reversed the eight convictions for bookmaking on baseball games.
We granted the State's petition for certification. 50 N.J. 408 (1967).*fn1
The question is whether N.J.S. 2 A:112-3 permitted convictions both for bookmaking on horse races and for bookmaking on baseball games. The issue of multiple statutory
offenses may properly be viewed in this instance as one of statutory interpretation. Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2 d 1405 (1958); Note, 65 Yale L.J. 339, 363-64 (1956). The statute provides:
"Any person who, habitually or otherwise, buys or sells what is commonly known as a pool, or any interest or share therein, or makes or takes what is commonly known as a book, upon the running, pacing or trotting, either within or without this state, of any horse, mare or gelding, or conducts the practices commonly known as bookmaking or pool selling, or keeps a place to which persons may resort for engaging in any such practices, or for betting upon the event of any horse race or other race or contest, either within or without this state, or for gambling in any form, is guilty of a misdemeanor, and shall be punished by a fine of not less than $1,000 nor more than $5,000, or by imprisonment in the state prison for not less than 1 year nor more than 5 years, or both."
There is no question that the Legislature could proscribe two or more separate and distinct criminal acts within the same statute. IV Wharton's Criminal Law and Procedure, § 1778, p. 630 (1957); cf. R.S. 24:18-4; State v. McDonald, 92 N.J. Super. 448 (App. Div. 1966). The Appellate Division concedes that N.J.S. 2 A:112-3 is set forth in the disjunctive in that violations "may consist of acts of bookmaking on either horse racing or any other contest." 97 N.J. Super., at p. 34. On that point there can be no dispute. State v. Fiorello, 36 N.J. 80 (1961), certiorari denied 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2 d 396 (1962); cf. State v. Mazzarella, 236 A. 2 d 446 (R.I. 1967).
We disagree, however, with the Appellate Division's further conclusion that where, as here, the violations involved the taking of bets on more than one type of event, a separate count would not lie for each type of conduct. The defendants engaged in two different types of bookmaking, each of which was proscribed and made punishable by N.J.S. 2 A:112-3. The State must be allowed to proceed against defendants on the basis of the separate and distinct offenses set out by the Legislature.
Of course, judges must exercise careful, common sense discretion in imposing punishment for these multiple offenses in order to ensure that the pyramiding of sentences does not offend notions of fairness or cruel and unusual punishment. See generally ABA Project on Minimum Standards for Criminal Justice, "Standards Relating to Appellate Review of Sentences," § 3.4 (Tent. Draft, April 1967). In the case at hand, the imposition of a fine and concurrent 1-3 year sentences did not exceed a proper exercise of the discretion ...