State v. Flynn
| Decision Date | 01 March 1909 |
| Citation | 76 N.J.L. 473,72 A. 296 |
| Parties | STATE v. FLYNN. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Supreme Court.
Wilbur J. Flynn was convicted of keeping a gaming house, and brings error. Reversed.
Charles T. Cowenhoven, for plaintiff in error. George Berdine, Prosecutor of the Pleas, for the State.
PITNEY, Ch. This writ of error brings under review a judgment of the Supreme Court affirming a conviction in the Middlesex quarter sessions for a violation of section 65 of the crimes act (P. L. 1898, p. 812). The indictment charges that Flynn "did aid, abet, or assist one C. W. in keeping at his hotel, on Ferry street, in the borough of South river, in the township of East Brunswick, in the county of Middlesex, a place to which persons might resort for gambling in a certain form, namely, upon a slot machine, in this: That the said Wilbur J. Flynn did furnish, lease, or loan to the said C. W. the said slot machine so used, or to be used, for gambling by persons upon said premises as aforesaid, against the form of the statute," etc. The section referred to provides that: "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 'bookmaking' 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," etc.
Two matters only require mention. Counsel for plaintiff in error, conceding that this statute makes it a misdemeanor to keep a place to which persons may resort for gambling in any form, insists that the section does not make it a misdemeanor to aid, abet, or assist in the keeping of such a place. It is argued that by the literal reading of the section the words "aiding, abetting or assisting" are conjoined to the phrase "gambling in any form," so that the thing which is made a misdemeanor is the keeping a place to which persons may resort for bookmaking or pool selling, or for betting upon races, or for gambling in any form, or for aiding, abetting, or assisting in such gambling. We deem it clear, however, that the words "or aiding, abetting or assisting" are intended to be conjoined to the words "any person or corporation" at the beginning of the section, and that, although the language lacks something of grammatical nicety, it sufficiently expresses the legislative purpose to render any person or corporation that may aid, abet, or assist in doing any of the things that are by the section prohibited guilty of a misdemeanor; in fact, to make the aider and abettor a principal offender. The objection that the indictment is fatally defective because the offense is charged in the alternative, and not in the conjunctive, is more serious. The indictment contains a general averment, and a limitation of this by a specific averment. Both averments are in the disjunctive.
It is charged generally that the defendant "did aid, abet or assist," etc. The words "aid" and "assist" may be treated as synonymous; they both import a contribution of effort. But "abet" has a somewhat different meaning, and may import presence, with instigation or encouragement towards the commission of the offense, but without aid or assistance therein. Therefore, if we could reject the specific averment as surplusage, the general averment is bad, because it does not charge that the defendant both aided and abetted, nor that he aided, nor that he abetted. But the frame of the indictment is such that in our opinion we may not properly reject the specific averment that follows; it being manifest, as we think, that the grand jury did not intend to charge any other form of aiding, abetting, or assisting than that which is thus specified, viz., that the defendant "did furnish, lease, or loan to the said C. W. the said slot machine so used, or to be used, for gambling." If we...
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State v. W. U. Tel. Co.
...are not synonymous they must be charged separately and disjunctively as individual offenses in separate counts. State v. Flynn,76 N.J.L. 473, 72 A. 296 (E. & A.1909); State v. Bove, 98 N.J.L. 350, 116 A. 766 (Sup.Ct.1927). The argument presupposes that the meaning of the word 'abet' is repu......
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Strogoff v. Motor Sales Co.
...65 N.E. 390;Adams v. New England Maple Syrup Co., 210 Mass. 475, 480, 97 N.E. 85; Robinson v. Vaughton, 8 C. & P. 252; State v. Flynn, 76 N.J.L. 473, 475, 476, 72 A. 296;Heitzman v. Divil, 11 Pa. 264, 266, 268;Fitzwater v. Fassett, 199 Pa. 442, 49 A. 310;Fordson Coal Co. v. Kentucky River C......
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Mitchell v. Commonwealth
...can be rejected as surplusage. People v. Myers, 20 Cal. 76; Commonwealth v. Garland, 3 Mete. (60 Ky.) 478; and in State v. Flynn, 76 N. J. Law, 473, 72 A. 296, Chief Justice Pitney, speaking for the court, quotes with approval the statement in 22 Cyc. 370, that— "Allegations which, althou......
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State v. Campisi
...State v. Tilton, 104 N.J.L. 268, 272, 140 A. 21 (Sup.Ct.1928). The principle under discussion had express application in State v. flynn, supra (76 N.J.L. 473, 72 A. 297), although the question arose obliquely. There was a conviction of the defendant for aiding and abetting the keeping of a ......