State v. Bove

• Decision Date: 15 April 1922
• Citation: 116 A. 766
• Parties: STATE v. BOVE.
• Court: New Jersey Supreme Court

116 A. 766

STATE

v. BOVE.

Supreme Court of New Jersey.

April 15, 1922.

Error to Court of Quarter Sessions, Essex County.

Gabriele Bove was convicted of selling lottery tickets, and he brings error. Affirmed.

Argued November term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Charles Hood, of Newark, for plaintiff in error.

J. Henry Harrison, Prosecutor of the Pleas, of Newark, for the State.

PARKER, J. This writ of error brings up a conviction of the defendant upon an indictment containing two counts, each of which was based upon the fifty-seventh section of the Crimes Act (2 Comp. St. 1910, p. 1764), the material part of which for present purposes, reads as follows:

"Any person who shall give, barter, sell or otherwise dispose of, or offer to give, barter, sell or otherwise dispose of, any ticket or tickets or any share or interest in any ticket or tickets in any lottery, whether erected, set up, opened or made in this state or elsewhere, or the chance or chances of any such ticket or tickets," etc., shall be guilty of a misdemeanor.

The first count charged that—

The defendant "through a person acting for and in behalf of said Gabriele Bove, whose name is unknown to the grand jurors, unlawfully did give, barter, sell, dispose of to one Robert Simpson, and deliver and furnish to said Robert Simpson, for the purpose of sale and distribution by said Robert Simpson, certain lottery tickets, for the drawing of money prizes on February 28, 1921, in a lottery, to wit: 'the New Louisiana lottery,' erected and set up for the drawing, on the 28th day of each month, of money prizes, in the city of Puerto Cortez, Honduras, contrary," etc.

The second count charged that—

The defendant "through a person acting for and in behalf of said Gabriele Bove, whose name is unknown to the grand jurors, unlawfully did deliver and furnish to one Robert Simpson, for the purpose of sale and distribution by said Robert Simpson, certain lottery tickets for the drawing of money prizes on February 28, 1921, in a lottery, to wit, 'the New Louisiana lottery' erected and set up for the drawing, on the 28th day of each month, of money prizes, in the city of Puerto Cortez, Honduras, contrary," etc.

There was a general verdict of guilty.

There was a motion to quash the indictment on a number of grounds which may be gathered up into the propositions that it was vague, indefinite, repugnant, and failed to charge the commission of a crime. Under our practice, the action of the court on such motion is discretionary, and not ground of legal error, and counsel very properly does not press the denial of the motion, except as a basis for raising the same points later on, under section 44 of the Criminal Procedure Act (2 Comp. St 1910, p. 1834).

The same points were again urged on a motion in arrest of judgment; and, where it is claimed that the indictment fails to charge the commission of a crime, the point may be taken on strict writ of error, as an error upon the face of the record. State v. Flynn, 76 N. J. Law, 473, 72 Atl. 296. So that we proceed to a consideration of the objections to the indictment on the merits.

It is first urged that the indictment fails to allege the commission of a crime because it says that the defendant, through a person acting for and in behalf of the said defendant, unlawfully did give, barter, sell, etc., and that the indictment does not disclose that such person was authorized or directed by the defendant to perform the acts complained of or consented to their commission, or had knowledge of the commission of said act or acquiesced in it The real question is whether the language of the indictment is such as to indicate that the unknown person performed the alleged illegal act under and by direction of the defendant; and we think that it is. The evident meaning of the language is that the defendant used another person as his instrumentality, whether conscious or unconscious, to transmit in some way to Simpson the lottery tickets in question for the purposes of sale and distribution. If the defendant directed the unknown person to do it and the unknown person did this under his direction, of course the defendant would be responsible, while, if the unknown person was used as an unconscious instrumentality in some way, as by carrying a sealed package of whose contents he was ignorant, the act, under well-settled principles, would be that of the defendant. If the language was not sufficiently certain to apprise the defendant as to which of these alternatives the state proposed to rely upon, the remedy was by a demand for particulars.

The next point is that the indictment fails to charge a crime because it merely uses the phrase "lottery tickets," but we think this objection is quite unsubstantial. The language of the statute, as we have seen, is, "Any ticket or tickets or any share or interest in any ticket or tickets in any lottery," and the meaning of the phrase "lottery tickets" is quite well enough understood to indicate that the tickets were of a character within the fifty-seventh section, and denounced as illegal by that section.

The next point is that each of the counts of the indictment is lacking in certainty because it fails to set forth the number of tickets or the means of identifying the same, or a copy of the tickets, or the name of the person who acted, etc. Conceding that the defendant would be entitled before trial to a specification of these matters, as to which we express no opinion, it does...