State v. Rappise.

• Decision Date: 24 March 1949
• Docket Number: No. A 136-48.,A 136-48.
• Citation: 65 A.2d 266
• Parties: STATE v. RAPPISE.
• Court: New Jersey Superior Court

65 A.2d 266

STATE

v.RAPPISE.

No. A 136-48.

Superior Court of New Jersey, Appellate Division, Part B.

March 24, 1949.

Appeal from Bergen County Court; Herman Vanderwart, Judge.

Michael Rappise, alias Jimmy Stone, was convicted of employing a minor at an establishment for the purpose of relaying bets and wagers upon the running of horses and of conspiracy to violate the gambling laws, and he appeals.

Reversed.

Before McGEEHAN, Senior Judge, and DONGES and COLIE, JJ.

Albert S. Gross and Walter P. Back, both of Hackensack, for appellant.

John E. Selser and Walter G. Winne, County Prosecutor, both of Hackensack, for respondent.

COLIE, Judge.

Defendant was tried and convicted upon two indictments. The first charged him with employing George Amato, a minor, aged 15, at an establishment for the purpose of relaying bets and wagers upon the running of horses. The second charged that he conspired with John Doe and Richard Roe to violate the laws of the state against gambling. The verdict of the jury was ‘guilty in the manner and form as charged in both indictments.’ On this appeal the State concedes, as indeed it must, that the verdict of guilty and the judgment entered thereon, so far as the first indictment is concerned, cannot be sustained since there was no legal evidence to support it.

The indictment for conspiracy charges ‘that Michael Rappise, alias Jimmie Stone, John Doe and Richard Roe * * * did * * * unlawfully * * * conspire * * * to violate the gambling statutes of the State of New Jersey * * *’. The theory of the State's case against the defendant is that Amato was a co-conspirator with the defendant and the two unknown persons named in the indictment as John Doe and Richard Roe.

To support the charge in the indictments the State called George Amato who was on the premises when raided. He testified that he was employed by an unknown man to take care of the premises at 4 Outwater Lane in Garfield, New Jersey, to answer the telephone and relay messages placing bets on horse races to certain telephone numbers in Paterson. When confronted by the testimony of Amato that he was employed by an unknown man, the State pleaded surprise and called as a witness Stephen Toth, Jr., an Assistant Prosecutor. His testimony was that Amato said prior to the trial that the defendant Stone had hired him the day before the raid, that Stone gave him a key, told him how to operate the telephones, gave him a card with the two Paterson telephone numbers and that Amato admitted relaying bets to the Paterson numbers. Mr. Toth also testified to an admission by Amato to having received a call from Stone, while the police were on the premises, in which Stone told him to ‘wrap up the phones and get out of there in a hurry.’ The State introduced in evidence a photograph of Stone upon the back of which Amato had written that it was Stone who hired him. The State also introduced in evidence a written statement of Amato in which he said that Stone had hired him. Certain members of the police force testified to contradictory statements previously made by Amato.

Appellant argues that the court erred in admitting without qualification the photograph and statement in evidence and in permitting the Assistant Prosecutor and the police officers to testify that Amato verbally identified the man depicted in the photograph as Jimmy Stone and had made statements contrary to his testimony on the witness stand.

State v. D'Adame, Err. & App.1913, 84 N.J.L. 386, 86 A. 414, 417, Ann.Cas.1914B, 1109, holds that where a witness testifies in a manner contradictory to a prior statement, under such circumstances where the State was surprised by such unexpected testimony, it might ‘neutralize the effect of such evidence by proving the...