State v. Lennon.
| Decision Date | 25 July 1949 |
| Docket Number | No. A-256.,A-256. |
| Citation | 67 A.2d 475 |
| Parties | STATE v. LENNON. |
| Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Appeal from Bergen County Court.
John Lennon, alias Jack Lennon, was convicted on a charge of a conspiracy to violate state gambling laws, and he appeals.
Affirmed.
Before Judges McGEEHAN, DONGES and COLIE.
Edward R. McGlynn, Newark, argued the cause for appellant (McGlynn, Weintraub & Stein, Newark, attorneys).
Wallace S. DePuy, Hackensack, argued the cause for respondent (Walter G. Winne, Bergen County Prosecutor, Hackensack, on the brief).
The opinion of the court was delivered by
DONGES, J.A.D.
This is an appeal from the conviction of defendant, John Lennon, by the verdict of a jury, after trial in the Bergen County Court, on an indictment charging a conspiracy to violate the gambling laws of this State.
Appellant urges two grounds for reversal:
1. The indictment fails to allege an offense under the laws of New Jersey.
2. The allegations of the indictment were not proven.
The indictment charged, inter alia, that P. James Pellecchia, the appellant John Lennon, alias Jack Lennon, Albert Klausner, John Doe and Richard Roe, on or about June 1, 1944, and continuously thereafter, until on or about the first day of May, 1948, did ‘dishonestly, fraudulently, corruptly, falsely, knowingly, and unlawfully combine, unite, confederate, conspire and agree together and with evil intent to violate the gambling statutes of the State of New Jersey, namely, Title 2, Chapter 135 of the Revised Statutes of the State of New Jersey’, by said Pellecchia telephoning bets on the running of horses to telephones located in the Borough of Cliffside Park, in Bergen County, New Jersey, maintained and operated for that purpose by the defendants, John Doe, Richard Roe, and the defendant John Lennon, alias Jack Lennon, and that an account of the bets and wagers made by the said Pellecchia was kept by the defendant Lennon, who paid over to Pellecchia amounts of money, in payment of the bets won by Pellecchia, and that defendant Lennon, either personally or by his agent, Albert Klausner, collected from Pellecchia sums of money in payment of such bets as were lost by Pellecchia, and where such payments were made by Pellecchia by checks, the defendant, Lennon, cashed or deposited same at the United National Bank of Cliffside Park, Cliffside Park, New Jersey.
The trial Court, in his charge limited the charge to a violation of R.S. 2:135-3, N.J.S.A. R.S. 2:135-3, as amended in Chapter 205 of the Laws of 1940, N.J.S.A., provides:
Appellant argues that ‘bookmaking’ necessarily requires the acceptance of money on a bet, for an event then undecided, and that, since the testimony disclosed that Lennon never received any money before the contingency of the wager was resolved, the overt acts, with which Lennon was charged, do not constitute the crime of bookmaking, within the purview of the quoted statute. In support of this position, appellant relies on State v. Dudley, 127 N.J.L. 127, 21 A.2d 209, (Sup.Ct.1941). In that case, the indictment charged the defendants with being ‘holders of a sum of money, betted, staked and wagered upon the results of a running race * * * thereafter to be run * * *’. The indictment was under R.S. 2:135-7, N.J.S.A., which provides that ‘Any person who shall be a stakeholder of any sum of money or other thing which is bet, staked or wagered upon any running, pacing or trotting race of horses, mares or geldings, * * * shall be guilty of a misdemeanor.’
In that case, under the allegations of the indictment, and the provisions of the Statute, the factual question was whether the defendants were ‘stakeholders'. The opinion of Mr. Justice Case, pointed out that the proofs did not support the charge that ‘stakes' had been held, but that the evidence showed that a running account of losses and gains was kept, and moneys due the alleged stakeholder were paid to him only after the race was run and the event decided.
Defendants, in the instant case, are charged with conspiring to violate the provisions of R.S. 2:135-3, N.J.S.A., wherein ‘bookmaking’, not ‘stakeholding’, is one of the offenses enumerated therein. Certainly, if the Legislature had intended to include both offenses in the same section, it would not have enacted separate sections. In State v. Morano, 134 N.J.L. 295, 47 A.2d 419, 422, (E. & A. 1946) in an opinion by Mr. Justice Heher, ‘bookmaking’ was defined as ‘the making or taking and recording or registering of bets or wagers on races and kindred contests'.
In the instant case, appellant Lennon was charged with maintaining and operating telephones for the purpose of receiving the bets of Pellecchia, which bets were, in fact, so received; with keeping an account of the bets and wagers made by Pellecchia; with advising Pellecchia of changes in numbers of telephones available for such bets; and with collecting from Pellecchia the sums due to Lennon for bets lost by Pellecchia, in cash or by check. Under the definition of ‘bookmaking’ in State v. Morano, supra, these acts clearly constitute the crime of ‘bookmaking’.
Appellant, also, argues that an agreement to commit an offense, which can be committed...
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State v. W. U. Tel. Co.
...Indictments such as this are not uncommon. State v. Klausner, 4 N.J.Super. 427, 67 A.2d 468 (App.Div.1949); State v. Lennon, 4 N.J.Super. 415, 67 A.2d 475 (App.Div.1949), affirmed 3 N.J. 337, 70 A.2d 154 (Sup.Ct.1949); State v. Morano, The requirement for pleading an overt act is contained ......
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... ... Maddox, 153 N.J.Super. 201, 212, 379 A.2d 460, 465 (App.Div.1977). See also State v. Seaman, 114 N.J.Super. 19, 32, 274 A.2d 810 (App.Div.1971), certif. den. 58 N.J. 594, 279 A.2d 679 (1971), Cert. den. 404 U.S. 1015, 92 S.Ct. 674, 30 L.Ed.2d 662 (1971); State v. Lennon, 4 N.J.Super ... Page 250 ... 415, 420, 67 A.2d 475 (App.Div.1949), aff'd3 N.J. 337, 70 A.2d 154 (1949). Here the conspiracy involved a crime which by its nature need not have been committed by two or more persons, State v. Sherwin, 127 N.J.Super. 370, 386, 317 A.2d 414 (App.Div.1974), ... ...
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...and Procedure (Anderson ed. 1957), § 89 at 191) Although the existence of this general rule was recognized in State v. Lennon, 4 N.J.Super. 415, 419, 67 A.2d 475 (App.Div.1949), we noted (at 420, 67 A.2d at 477), '(W)here a crime from a legal standpoint may be committed by one person only, ......