State v. Costa

Decision Date19 January 1953
Docket NumberNo. A--64,A--64
Citation94 A.2d 303,11 N.J. 239
PartiesSTATE v. COSTA.
CourtNew Jersey Supreme Court

David H. Harris, Newark, argued the cause for appellant (Theodore D. Parsons, Red Bank, attorney).

Martin J. DiMaria, Lodi, argued the cause for respondent.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

We certified upon the State's petition the judgment of the Appellate Division reversing Costa's conviction in the Bergen County Court upon an indictment for keeping a gambling place in violation of R.S. 2:135--3, since superseded by N.J.S 2A:112--3, N.J.S.A. 10 N.J. 317, 91 A.2d 231 (1952).

We are not in accord with the opinion of the Appellate Division, 20 N.J.Super. 28, 89 A.2d 259 (1952), that the trial court should have granted Costa's motion for acquittal and that it was error to comment in the charge upon Costa's failure to take the stand. We agree, however, that Costa is entitled to a new trial as plainly in the circumstances of the case he suffered manifest wrong and injury by the admission into evidence of the five indictments against Joseph Doto ('Joe Adonis'), James Lynch ('Piggy Lynch'), Salvatore Moretti ('Solly Moore'), Arthur Longano and Anthony Guarini, charging each with the identical offense charged to Costa, and upon each of which indictments are notations showing that the person indicted entered a plea of Non vult thereto and was sentenced and fined. In our view the prejudice to Costa resulted, not for the reason given by the Appellate Division that if the indictments were introduced to affect the credibility of the witnesses the State produced no evidence from the five to support the charge against Costa, as we think the State did obtain relevant testimony from those witnesses when they were recalled to the stand, but because the substance of the contents of the indictments and the facts of the pleas of Non vult thereto having once been elicited on the oral testimony of the witnesses the indictments themselves were not admissible in evidence, and, in the circumstances of this case, their presence beforethe jury must have had the plainly injurious effect of having the jury consider them for the improper purpose of evidencing Costa's guilt and to lead them to find that, as the five admitted the commission of the crime in the period charged, Costa must also be guilty of having committed it at that time.

The indictment is that Costa, contrary to the statute, between January 24, 1949 and March 31, 1949 'did wilfully, knowingly and unlawfully keep a certain place known as Costa's Barn, or Costa's Garage, Route 6, in the Borough (of Lodi) and County (of Bergen), with intent on the part of him, the said Leonard Costa, that persons might and should resort thither for the purpose of gambling with dice.'

The garage was built for Costa by his father sometime around 1943. Thereafter and throughout the period in question Costa had exclusive possession and control of it, without obligation for rent. His counsel conceded on his opening that prior to August 1948 'this barn was used for a gambling casino' but stated Costa's position to be that after August 1948 and particularly in the period charged 'the place was never used as a gambling casino.' However, one Seidenberg testified that on at least one night between January 24, 1949 and March 31, 1949, he was transported there by automobile from New York City for the purpose of gambling with dice and that he did gamble with dice there on that occasion. This testimony was sufficient evidence to support the allegation in the indictment that persons might or should resort there during that time for the purpose of gambling with dice. Proof of frequency or habitual repetition of such activity during the period charged is not required. Proof of even a single instance suffices. State v. Clark, 137 N.J.L. 10, 57 A.2d 537 (Sup.Ct.1948), affirmed 137 N.J.L. 614, 61 A.2d 237 (E. & A. 1948).

There was also evidence from which the jury could infer that Costa knew of and permitted the use of the garage for gambling with dice during such period. His brother testified that Costa repaired cars in the garage during such period 'at night and whenever he had the chance, at day or night.' There was also testimony by the witness Grippo, chauffeur for Anthony Guarini, that when he visited the garage with Guarini 'in the spring of 1949' he saw 'crap tables' there. Such proof of Costa's direct exposure to events going on in the garage justified a finding by the jury that he must have come to see and know about and to have permitted them. 2 Wigmore, Evidence (3d ed. 1940), sec. 245, p. 43.

It is true that the statutory offense requires proof of an additional ingredient not necessary to be shown upon an indictment for keeping a disorderly house. The common law offense is established when it is proved that the defendant permitted his place to be used by persons whose conduct to his knowledge rendered the place disorderly, whatever his intent may have been. Proof of the statutory offense, however, must reach beyond, to his intent, and support the inference that the defendant intended that persons should resort to the place for the purpose of gambling. State v. Ackerman,62 N.J.L. 456, 41 A. 697 (Sup.Ct.1898); State v. Griffin, 85 N.J.L. 613, 90 A. 259 (E. & A.1914); State v. Terry, 91 N.J.L. 539, 103 A. 238 (E. & A.1918), reversing 89 N.J.L. 522, 99 A. 129 (Sup.Ct.1916); State v. Clark, supra. But 'Intent as a separate proposition for proof does not commonly exist.' Wigmore, supra, sec. 242, p. 39. It must ordinarily be discovered, as other mental states are, in the evidence of defendant's conduct in the surrounding circumstances, and upon the instant indictment 'might or might not be inferred from his knowledge and permission'. State v. Ackerman, supra, 62 N.J.L. at page 459, 41 A. at page 698.

In this case, not only did the evidence of Costa's use of his garage in the period, in the light of the surrounding circumstances shows, support the inference that he must have known of and have permitted the resport thereto at that time by persons for the purpose of gambling with dice, but also was such that, viewed in its entirety, cf. State v. Goodman, 9 N.J. 569, 581, 89 A.2d 243 (1952), the jury could properly find therefrom beyond reasonable doubt, that defendant between the dates charged kept the garage with intent that persons might and should resort there for the purpose of gambling with dice. There was evidence from several witnesses, including the five mentioned, which showed that Costa's Garage and other places, of which 'Hayes Garage,' 'The Studio' and 'The Baby Carriage Factory' were identified, formed a network of gambling places or 'drops' in Bergen County which was operated by the five and was serviced with customers transported from New York City in a fleet of 16 automobiles maintained for the purpose at a large parking lot in the center of New York City. That none of such witnesses gave testimony or would admit that the operation was carried on in the garage after August or September 1948 does not militate against the legitimacy of the inference that it must have continued through the period charged, in light of Seidenberg's testimony that he was transported by that means to the garage for the purpose of gambling with dice during the period, and that he gambled with dice there.

Our conclusion does not in anywise rest upon the oral testimony of the five and the contents of the indictments against them in evidence revealing their respective admissions of guilt of the same crime charged to Costa. That evidence is wholly without probative value against Costa. The State urged at the trial, and urges here, that the Non vult pleas of the five could properly be considered by the jury as evidential of Costa's guilt. On its brief the State asks, 'Is it not a fair inference which the jury may realistically draw from the admission of one, or all five, that the sixth man must have been a party thereto by reason of the identity of all six?' This contention is utterly devoid of merit. If his plea of Non vult be considered as an admission by each of the five of the facts stated in the indictment against him, such admissions, singly or collectively, are not admissions by Costa and therefore are not evidential against Costa unless falling within some recognized exception to the general rule. State v. Fox, 12 N.J.Super. 132, 79 A.2d 76 (App.Div.1951). One such exception is that under which a statement of one conspirator or co-actor made in furtherance of the conspiracy or common enterprise is evidential against another conspirator or co-actor, and the State suggests, 'Is not the force and effect of the six similar indictments tantamount to a joint indictment, or a conspiracy indictment?' The answer is that Costa was not indicted as a conspirator or co-actor with the others and was not tried upon that theory but was called upon to make his defense only against an indictment charging him with the keeping of the garage as a gambling place in violation of the statute as if he were the sole person charged with the offense. Moreover, the pleas of the five were not made in furtherance of any common plan to which they and Costa were parties, but were at best acts of co-conspirators made after the object of the conspiracy had been consummated, and thus could not be evidence against Costa under the exception. State v. Herbert, 92 N.J.L. 341, 359, 105 A. 796 (Sup.Ct.1918).

By statute, R.S. 2:97--13, now superseded by N.J.S. 2A:81--12, N.J.S.A., the conviction of any witness of any crime may be shown for the purpose of affecting his credibility. It was formerly doubted that the statute was warrant for the legal impeachment by the State of its own witnesses in this manner. State v. Young, 93 N.J.L. 396, 405, 108 A. 215 (E. & A.1919) . However, in State v. Fox, supra (12 N.J.Super. 132, 79 A.2d 80), the Appellate Division held...

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