State v. Morano

• Decision Date: 03 May 1946
• Docket Number: No. 25.,25.
• Citation: 134 N.J.L. 295,47 A.2d 419
• Parties: STATE v. MORANO et al.
• Court: New Jersey Supreme Court

134 N.J.L. 295

47 A.2d 419

STATE

v.MORANO et al.

No. 25.

Court of Errors and Appeals of New Jersey.

May 3, 1946.

Error to Supreme Court.

Frank Morano and others were convicted of making a book on the results of horse races, and from judgment of the Supreme Court affirming conviction, 133 N.J.L. 428, 44 A.2d 786, they bring error.

Judgment affirmed.

Frederic M. P. Pearse, of Newark, and Julius Lichtenstein, of Hoboken, for plaintiffs in error.

Walter D. Van Riper, Atty. Gen., and James R. Giuliano and William P. Gannon, Deputy Attys. Gen., for defendant in error.

HEHER, Justice.

The judgment is affirmed for the reasons expressed in the opinion of Mr. Justice Parker for the Supreme Court. But, in view of the insistence of plaintiffs in error on the oral argument and in the brief that their fundamental rights have been invaded, we shall treat the particular points in some detail.

It is urged that the count of the indictment upon which the judgment was entered, although it charges that the accused ‘wilfully and unlawfully did make and take what is commonly known as a book, upon the running of horses, mares and geldings,’ fails to charge a crime denounced by R.S. 2:135-3, N.J.S.A., in that the phrase ‘to make and take a book’ is not ‘so commonly understood as to be self-explanatory,’ and the allegation is therefore wanting in the clarity and certainty of statement requisite to apprize the accused of the offense they are called upon to meet, and the affirmance of the judgment of conviction would serve to deprive them of their constitutional right of pleading former jeopardy ‘if indicted and tried for any of the other acts relating to betting on horse racing which are forbidden by the statute’; and also in that, while the proofs ‘indicate that some form of betting on horse races was carried on in the house in Hoboken,’ there is no evidence tending to establish that the ‘particular conduct’ was ‘bookmaking as that word was understood at the time of the enactment of the statute,’ and thus there was error in the denial of the motions to direct a verdict of acquittal.

Certainty of description of the offense charged is a prime requisite of an indictment. This requirement that the alleged criminal act be laid in certain and identifiable form is grounded in the accused's right to such specification of the accusation as may be needful for the preparation of his defense and the interposition of a plea of autrefois convict or autrefois acquit in the event of a further prosecution for the same offense. The accused has a constitutional right ‘to be informed of the nature and cause of the accusation’ levelled against him. State Constitution, Art. I, par. 8. It is a corollary of this principle that an offense may be charged in the words of the statute, if the statute describes it in terms that in themselves import with certainty the elements of the offense, and thus the allegation satisfies the accused's fundamental rights. The statutory language need be supplemented only where necessary to particularize and identify the offense that would otherwise be indefinite and uncertain because of the generality of the statutory language. Linden Park Blood Horse Association v. State, 55 N.J.L. 557, 27 A. 1091; State v. Schmid, 57 N.J.L. 625, 31 A. 280; State v. Spear, 63 N.J.L. 179, 42 A. 840; State v. Caporale, 85 N.J.L. 495, 89 A. 1034; State v. Morris, 98 N.J.L. 621, 121 A. 290, affirmed 99 N.J.L. 526, 528, 124 A. 926; Levine v. State, 110 N.J.L. 467, 166 A. 300; State v. Tuzenew, 193 A. 788, 15 N.J.Misc. 584; affirmed State v. Suckow, 120 N.J.L. 190, 198 A. 834; State v. Lewandowski, 121 N.J.L. 612, 3 A.2d 871; State v. Lisena, 131 N.J.L. 48, 34 A.2d 737.

Tested by this principle, the indictment is sufficient. The amendments of the State Constitution adopted in 1897 and 1939 (Art. IV, sec. VII, par. 2) outlawed bookmaking, eo nomine; and the original enforcement act, like the present, classified as a misdemeanant one who ‘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 * * *.’ Pamph.L.1898, p. 812, Comp.Stat.1910, p. 1766, sec. 65, R.S.1937, 2:135-3, Pamph.L.1940, p. 862, N.J.S.A. 2:135-3. Thus, the thing denounced as a crime is bookmaking as ‘commonly known’-i.e., in common understanding; and that is the making of a ‘book of bets' on horse races. In Webster's New International Dictionary, Second Edition, ‘bookmaking’ is defined as the ‘making of a book of bets;’ and bookmaker' as one who ‘makes a book of bets.’ In the old Century Dictionary and Cyclopedia, which long antedates the constitutional amendment of 1897 and the original enforcement act, we find these definitions: ‘Book:’ ‘In betting, an arrangement of bets recorded in a book; a list of bets made against a specific result in a contest of any kind; as to make a book.’ ‘Bookmaking:’ ‘The act or practice of making a book on a race or other doubtful event.’ ‘Bookmaker:’ ‘One who makes a book on a race or other doubtful event; a professional betting man.’ And in Funk & Wagnalls Practical Standard Dictionary, published in 1933, a ‘bookmaker’ is defined as ‘A professional betting man, especially one connected with the turf.’ There is a seeming curtailment of the primary significance of these terms which no doubt is attributable to the limitation of punitive statutory provisions here and there either to horse racing or to racing generally. ‘Bookmaking’ is ‘a species of betting on races'; the ‘business of receiving and accepting bets or wagers on the result of races, usually after quoting odds to prospective betters and having them write out slips'; it ‘imports some method of recording bets.’ 27 C.J. 979; 38 C.J.S., Gaming, § 1, page 54, 56. Such is the conception of the word in the case of People of State of New York v. Bennett, 2 Cir., 113 F. 515. It has also been defined as the recording of bets on horse races in a book. Spies v. Rosenstock, 87 Md. 14, 39 A. 268; Armstrong Racing Publications v. Moss, 181 Misc. 966, 46 N.Y.S.2d 171; Hofferman v. Simmons, 177 Misc. 962, 32 N.Y.S.2d 244; Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421. But see Murphy v. Board of Police of New York, 11 Abb. N.C. 337, 63 How.Prac. 396, 399. See, also, 5 Words and Phrases, Perm. Ed. The term ‘bookmaking’ originally indicated a ‘collection of sheets of paper or other substances upon which entries could be made, either written or printed. ‘People on Complainant of Lennon v. Camio, 165 Misc. 134, 300 N.Y.S. 264, 267; People ex rel. Lichtenstein v. Langan, 196 N.Y.260, 89 N.E. 921, 25 L.R.A.,N.S., 479, 17 Ann.Cas. 1081.

The essence of the point made by plaintiffs in error is that the term ‘bookmaking’ is to receive the sense and significance accorded to it prior to the adoption of the constitutional amendment of 1897 and the original...