State v. Doto

• Decision Date: 24 March 1952
• Docket Number: Nos. A--738,A--740,s. A--738
• Parties: STATE v. DOTO. to
• Court: New Jersey Superior Court — Appellate Division

Page 482

18 N.J.Super. 482

87 A.2d 549

STATE v. DOTO.

Nos. A--738 to A--740.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 14, 1952.

Reargued March 10, 1952.

Decided March 24, 1952.

John E. Selser, Hackensack, argued the cause for appellant (Selser & Shenier, Hackensack, attorneys).

Joseph A. Murphy, Asst. Deputy Atty. Gen., argued the cause for the State (Theodore D. Parsons, Atty. Gen.).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

On May 28, 1951, the defendant was sentenced on four indictments--Indictment 11, charging conspiracy, and Indictments 12, 20 and 16, each charging the keeping of a place to which persons may resort for gambling in violation of R.S. 2:135--3, N.J.S.A. He was sentenced on Indictment 11 to not less than two nor more than three years in State Prison; on Indictment 12 to not less than two nor more than three years in State Prison and a fine of $5,000, the prison sentence to run concurrently with the prison sentence on Indictment 11; on Indictment 20 to not less than two nor more than three years in State Prison and a fine of $5,000, the prison sentence to run concurrently with the prison sentence on Indictment 11; and on Indictment 16 to not less than four nor more than five years in State Prison and a fine of $5,000, the prison sentence to run consecutively with the prison sentence on Indictment 11, but the operation of the prison sentence on Indictment 16 was suspended and the defendant placed on probation for a period of five years. On the appeals no question is raised about the sentence on Indictment 11, charging conspiracy, or about the amount of the fine or the period of imprisonment imposed on the other indictments.

Because the sentences on Indictments 12, 20 and 16 each impose a punishment of both fine and imprisonment, the defendant claims they are invalid. He relies on the 1940 amendment (L.1940, c. 205, § 1) of R.S. 2:135--3, N.J.S.A., which provides that the crime charged in these indictments shall be punished 'by a fine * * * Or by imprisonment.' (Italics ours.) The State relies on R.S. 2:135--3, N.J.S.A., as enacted on December 20, 1937, which provides that the crime charged in these indictments shall be punished 'by a fine * * * And by imprisonment.' (Italics ours.)

We find it necessary to set forth the statutory and constitutional provisions involved in the arguments.

L.1894, c. 101, § 2 provided: 'That if any person or corporation shall habitually or otherwise conduct the practices commonly known as book making and pool selling, or either of them, or shall keep a place to which persons may resort for engaging in such practices, or either of them, 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, such person or corporation shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than five thousand dollars, and by imprisonment in the state prison for not less than one year nor more than five years.'

In 1897, art. IV, sec. VII, par. 2 of the Constitution of 1844 was amended to read as follows: 'No lottery shall be authorized by the legislature or otherwise in this state, and no ticket in any lottery shall be bought or sold within this state, nor shall poolselling, book-making or gambling of any kind be authorized or allowed within this state, nor shall any gambling device, practice or game of chance now prohibited by law be legalized, or the remedy, penalty or punishment now provided therefor be in any way diminished.'

In 1898, a revision of the Crimes Act (L.1898, c. 235) was enacted and the 1894 act was repealed (L.1898, c. 236, § 1). Section 65 of the 1898 Crimes Act provided: 'Any person or corporation that shall habitually or otherwise, buy or sell what is commonly known as a pool, or any interest or share in any such pool, or shall make or take 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 shall conduct the practices commonly known as book-making and pool selling, or either of them, or shall keep a place to which persons may resort for engaging in such practices, or either of them, 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, or aiding, abetting or assisting therein, shall be guilty of a misdemeanor, and punished by a fine of not less than one thousand dollars, nor more than five thousand dollars, and by imprisonment in the state prison for not loss than one year nor more than five years; and any corporation of this state convicted of offending against this section, shall be dissolved thereby, and its corporate franchises shall thereby become forfeited and void, without any other proceedings to that end.'

The pertinent part of L.1898, c. 235, § 65 was incorporated in the Revised Statutes of 1937 (L.1937, c. 188) as R.S. 2:135--3, N.J.S.A., providing: 'Any person who shall habitually or otherwise, buy or sell what is commonly known as a pool, or any interest or share in any such pool, or shall make or take 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 shall conduct the practices commonly known as bookmaking or pool selling, or shall keep 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, or any person sho shall aid, abet or assist in any such acts, shall be guilty of a misdemeanor, and punished by a fine of not less than one thousand dollars nor more than five thousand dollars, and by imprisonment in the state prison for not less than one year nor more than five years.'

In 1939, art. IV, sec. VII, par. 2 of the 1844 Constitution was again amended to read as follows: 'It shall be lawful to hold, carry on, and operate in this State race meetings whereat the trotting, running or steeplechase racing of horses only may be conducted between the hours of sunrise and sunset on week days only and in duly legalized race tracks, at which the pari-mutuel system of betting shall be permitted. No lottery, roulette, or game of chance of any form shall be authorized by the Legislature in this State, and no ticket in any lottery shall be bought or sold within this State or offered for sale; nor shall pool-selling, bookmaking, or gambling of any kind be authorized or allowed within this State, except pari-mutuel betting on the results of the racing of horses only, from which the State shall derive a reasonable revenue for the support of government; nor shall any gambling device, practice, or game of chance, or pari-mutuel betting thereon now prohibited by law, except as herein stated and otherwise provided, be legalized, or the remedy, penalty, or punishment now provided therefor be in any way diminished.'

In 1940 (L.1940, c. 205, § 1) R.S. 2:135--3, N.J.S.A., was amended to read as follows: 'Any person who shall habitually or otherwise, buy or sell what is commonly known as a pool, or any interest or share in any such pool, or shall make or take 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 shall conduct the practices commonly known as bookmaking or pool selling, or shall keep 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, or any person who shall aid, abet or assist in any such acts, shall be guilty of a misdemeanor, and punished by a fine of not less than one thousand dollars nor more than five thousand dollars, or by imprisonment in the State prison for not less than one year nor more than five years. Nothing in this section contained shall be construed to apply to pari-mutuel betting at race meetings as authorized by the Constitution of this State and any statute passed in pursuance thereof.'

From 1894 down to the time of sentencing in 1951, the range of the fine and of the imprisonment which might be imposed for the crime charged remained the same; and from 1894 until the 1940 amendment, the punishment was both fine and imprisonment. The 1940 amendment reduced the punishment to either fine or imprisonment.

The defendant argues that the provision of R.S. 2:135--3, N.J.S.A., as amended in 1940, which makes the keeping of a place to which persons may resort for gambling a misdemeanor punishable by fine or imprisonment, is a valid enactment and that no constitutional limitation or question is involved. The State argues (1) that this provision of the 1940 amendment is unconstitutional; and (2) if it is not, that the balance of the 1940 amendment is unconstitutional and this provision, not being severable, must fall with the unconstitutional matter.

The provision of the 1940 amendment to R.S. 2:135--3, N.J.S.A., that the keeping of a place to which persons may resort for gambling is a misdemeanor punishable by fine or imprisonment, reduces the punishment provided for this crime by R.S. 2:135--3, N.J.S.A., as enacted December 20, 1937, which was in effect at the time of the adoption of the 1939 amendment to art. IV, sec. VII par. 2 of the 1844 Constitution. The State contends that this provision is unconstitutional because a reduction in the penalty for this crime was prohibited by the 1939 constitutional amendment. To support this...