State v. Rucker, A--318

CourtNew Jersey Superior Court – Appellate Division
Citation134 A.2d 409,46 N.J.Super. 162
Docket NumberNo. A--318,A--318
PartiesThe STATE of New Jersey, Plaintiff-Respondent, v. John RUCKER, Defendant-Appellant. . Appellate Division
Decision Date16 August 1957

Page 162

46 N.J.Super. 162
134 A.2d 409
The STATE of New Jersey, Plaintiff-Respondent,
v.
John RUCKER, Defendant-Appellant.
No. A--318.
Superior Court of New Jersey.
Appellate Division.
Argued July 22, 1957.
Decided Aug. 16, 1957.

Page 164

[134 A.2d 410] John Wallace Leyden, Jr., Hackensack, for appellant (Leyden & Monaghan, Hackensack, attorneys).

Thomas S. O'Brien, Sp. Asst. Pros., Garfield, for respondent (Guy W. Calissi, Bergen County Pros., Hackensack, Atty., William C. Brudnick, Sp. Asst. Pros., River Edge, on the brief).

Before Judges HALL, McGEEHAN and BROADHURST.

The opinion of the court was delivered by

HALL, J.S.C. (temporarily assigned).

Defendant appeals from a judgment of conviction in the Bergen County

Page 165

Court, following a trial without a jury, on an indictment charging a violation of N.J.S. 2A:121--3(b), N.J.S.A. This section makes any person guilty of a misdemeanor who 'knowingly possesses any paper, document, slip or memorandum that pertains in any way to the business of lottery or lottery policy, socalled, whether the drawing has taken place or not.' The only questions presented to us are whether certain printed cards found on the defendant's person fall within the coverage of the statute and whether the State was required to prove, as an essential element of the crime, the existence of an actual lottery related to the items in defendant's possession, in the light of N.J.S. 2A:121--5, N.J.S.A.

The State's evidence showed that on August 8, 1956 defendant, who had been under surveillance by the Hackensack police department for at least the two preceding days, apparently on suspicion that he was engaged in the lottery or numbers business in some fashion, was asked by two members of the force to come to police headquarters. Found in his wallet there were five cards, three of one kind being identical and two of another kind being substantially so. The defendant testified that these cards were not in the wallet, but in his pocket held together by a rubber band, when he was asked to remove the contents of his clothing by an officer at headquarters, and that thereafter he placed the cards in the wallet at the direction of the officer. This variation in the testimony makes no difference on this appeal.

The three identical printed cards read:

'As of This Date August 6, 1956

The Numbers will be taken from the Total Mutuel Handle.'

Then followed an example, under a heading of that word, consisting of a seven digit number with arrows over the pointing to the fourth, sixth and seventh digits, with this language printed below the number:

Page 166

[134 A.2d 411] '1st One Fourth from Right Last Two As

Arrows Indicate'

One of the other two printed cards read:

'Beginning January 3, 1956 the Following Nos. are Cut 4 to 1'

Then followed two lines of three digit numbers, three on the first line and six on the second. Those on the first line were each followed by the capital letter 'C'. The second of these cards was substantially identical, although in different type, except that the middle of the three numbers on the first line of the first card was omitted, one of the words was misspelled and there was no 's' on the word 'Nos.'

A Bergen County Prosecutor's detective, testifying as an admitted gambling expert, said that the first three identical cards were used in the operation of a 'numbers business' to show how the winning number will be determined (from the daily publication of the total bet at a race track) and that the other two cards were known in the business as 'cut number cards' or 'cut cards,' indicating for the information of players and 'runners' that the numbers listed on the cards having been the winning number more often than other numbers, the odds in 'paying off' on such numbers would be reduced from the normal 600 to 1 to 400 to 1. He further stated that the significance of the capital letter 'C' printed after certain of the numbers on the cards indicated a combination number, which meant that the 'cut' in the odds applied to any number made up of any combination of the digits. His opinion that these cards were used in a numbers operation by, or for the information of, a 'runner,' 'banker' or player was not contradicted. All such expert evidence was entirely proper. State v. Smith, 21 N.J. 326, 334, 121 A.2d 729 (1956). He characterized the cards as 'memoranda' and not 'slips,' as far as the language of the statute is concerned. There can be no doubt that the 'numbers business,' so-called, falls within the classification of 'lottery or lottery policy.'

Page 167

The defendant was the only witness in his behalf and his testimony related principally to an attempted explanation of his possession of the cards. His story was that he, a resident of New York City, came to Hackensack in the early morning of the day in question and went to the home of his wife in the latter city; that on leaving his wife's home he noticed the cards, encircled by a rubber band, lying in front of the house by the door, and that he picked them up, as he was accustomed to picking up 'anything that looks interesting,' and stuck them in his pocket. He contended he did not know what they were until he was advised by the police officers at headquarters, although his seeming familiarity with some of the terminology of the business would indicate his ignorance was not as deep as he professed. He denied that he had ever 'taken numbers' or been guilty of any 'numbers crimes' but he was not asked whether he was a numbers player or bettor.

At the conclusion of the case the judge made a general finding of guilt, referring to the cards as 'memoranda.' There was no request to find the facts specially (R.R. 3:7--1(c); see State v. Catalano, 30 N.J.Super. 343, 347, 104 A.2d 705 (App.Div.1954)), but the court also made what might be said to amount to a special finding relative to knowing possession and criminal intent, aptly describing the defendant's explanation as incredible and ridiculous. No question is raised here on that score.

Defendant, in his brief, phrases his concept of the primary issue on the appeal in this language: '* * * whether the legislature intended to make it a crime for anyone to possess any item however remotely connected with the lottery business, or whether it intended to make criminal only the possession of papers by one taking bets which are directly connected to a specific game.'

[134 A.2d 412] While the general principle is clearly established that a criminal statute is to be strictly construed, such construction must not be unduly narrow or artificial or disregard manifest legislative intention. State v. Friedman, 135

Page 168

N.J.L. 419, 421, 52 A.2d 416 (Sup.Ct.1947), affirmed 136 N.J.L. 634, 57 A.2d 390 (E. & A.1948).

The general policy of the State toward gaming and a particular form...

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