State v. Lennon, A--31

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: HEHER; CASE; CASE
• Citation: 3 N.J. 337,70 A.2d 154
• Parties: STATE v. LENNON.
• Docket Number: No. A--31,A--31
• Decision Date: 19 December 1949

Page 337

3 N.J. 337 70 A.2d 154 STATE
v.
LENNON. No. A--31. Supreme Court of New Jersey. Argued Oct. 31, 1949.
Decided Dec. 19, 1949.

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Joseph Weintraub, Newark, argued the cause for appellant. Edward R. McGlynn, Newark, on the brief. McGlynn, Weintraub & Stein, Newark, attorneys.

Wallace S. De Puy, First Assistant County Prosecutor, Hackensack, argued the cause for the State. Walter G. Winne, County Prosecutor, Hackensack, on the brief.

The opinion of the court was delivered by

HEHER, J.

The judgment here is not appealable of right to this Court. It was entered February 9, 1949, after

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the Judicial Article of the Constitution of 1947 had become effective; and the appellate process is to be found in that article of the Constitution. Sections 12 and 13 of chapter 367 of the Session Laws of 1948, Pamph. L. p. 1500, R.S. 2:16--81, 82, N.J.S.A., have no application. Shade v. Colgate, 3 N.J. 91, 69 A.2d 19. But since the question is Res nova, the alternative motion for certification is granted and the grounds of appeal will be treated on the merits.

[70 A.2d 155] Lennon appeals from a judgment of conviction rendered on an indictment returned August 31, 1948, charging that on or about June 1, 1944, 'and from thence continuously until on or about' May 1, 1948, at the Borough of Cliffside Park, in the County of Bergen, in this State, P. James Pellecchia, Lennon, Albert Klausner, John Doe and Richard Roe did knowingly and unlawfully, and with evil intent, conspire and agree together to violate the provision of Title 2, ch. 135 of the Revised Statutes of 1937, N.J.S.A., 'by * * * Pellecchia telephoning bets and wagers, on the running either within or without this State of horses, mares and geldings, to telephones located' in Cliffside Park 'maintained and operated for that purpose by the defendants, John Doe, Richard Roe, and Lennon,' and the keeping by Lennon of 'an account of the bets and wagers made by' Pellecchia, and the payment by Lennon to Pellecchia of the moneys won on the latter's wagers and the collection from Pellecchia by Lennon, either personally or by his agent and servant, Klausner, of the moneys lost on his wagers. Klausner was charged with knowing participation in the making and execution of the conspiracy as the servant and agent of Lennon. Overt acts were alleged and proved, among which were seventeen payments made by Pellecchia to Lennon, ranging from $500 to $3,000, between January 23, 1946 and December 2, 1947. The evidence tended to establish bookmaking in violation of R.S. 2:135--3, N.J.S.A. That was the issue submitted to the jury.

There was a severance as to Pellecchia; and he was sworn as a witness for the State on the trial of Lennon. He testified that during the summer of 1944 he was introduced to Lennon at a race track in Jamaica, New York. The subject matter

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of the conversation was the making of wagers on the running of horses, 'either at the track or away from the track.' Lennon told Pellecchia that he (Lennon) 'would book bets at the track; he generally had men there;' and that if he (Pellecchia) 'wanted to bet away from the track, bet through what is called a book,' he 'could 'phone in' his bets. Lennon gave Pellecchia a card listing four telephone numbers through the Cliffside Park exchange and told him that he 'could call those numbers,' but that he should not call 'for two or three days until he could make arrangements' to receive his calls, and in making the calls he 'should use the initials J.P.' Lennon said that when he 'got back to Cliffside he would make the arrangements.' The arrangements were made accordingly; and shortly thereafter Pellecchia made bets through Lennon's establishment in Cliffside Park and continued the practice for some four and a half years, during which time the telephone numbers were changed at intervals with notice to him. During this time he made such wagers by telephone 'almost daily' except for short periods when he could not meet his accumulated losses. Balances were struck from time to time; and Pellecchia usually made remittances by check to Lennon at a post office box in Cliffside Park, or to Lennon in person at Pellecchia's office in Newark. For several years, Pellecchia received daily statements from Lennon by mail. This practice was discontinued at Pellecchia's request; he feared it would be the means of his exposure. At one time, Pellecchia's unpaid wagers amounted to $40,000; Lennon agreed to reduce this by $10,000 or $12,000 if Pellecchia would make payment of the balance in weekly installments. Pellecchia gave Lennon a series of post-dated checks for the stipulated amount. At another time, Pellecchia's unpaid losses on wagers amounted to $72,000, for which he gave Lennon semi-monthly checks of $1,500 each. Pellecchia was almost continuously in Lennon's 'debt' for lost wagers; his total payments to Lennon exceeded $100,000, all moneys embezzled by Pellecchia from a bank of which he was vice-president and counsel. Pellecchia did not at time visit Lennon's place of business in Cliffside Park. He made the

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wagers by the designated telephone with several persons whose voices he did not recognize. He knew Lennon's voice; he did not know Klausner's. He said that he made 'bets with more than one individual answering the phone.' It is obvious that Lennon conducted the business of bookmaking on an [70 A.2d 156] extensive scale commensurate with the large sums wagered by Pellecchia. Lennon did not take the witness stand; indeed, he called no witnesses to meet the case made by the State. Klausner also was convicted.

The proofs sustain the inference that Lennon, Klausner and others conspired to commit the crime of bookmaking in violation of R.S. 2:135--3, N.J.S.A. Under the statute, an agreement or combination between two or more persons to commit a crime constitutes a conspiracy punishable as a misdemeanor, provided that, with certain exceptions not here pertinent, there was an overt act in furtherance of the object of the agreement by one or more of the parties. R.S. 2:119--1, 2, N.J.S.A. Bookmaking is a criminal offense. R.S. 2:135--3, N.J.S.A. But wagers, bets or stakes made to depend upon any...