State v. W. U. Tel. Co.

• Decision Date: 02 April 1951
• Citation: 80 A.2d 342,13 N.J. Super. 172
• Parties: STATE v. WESTERN UNION TEL. CO. et al.
• Court: New Jersey County Court

Page 172

13 N.J.Super. 172

80 A.2d 342

STATE v.WESTERN UNION TEL. CO. et al.

Cumberland County Court, Law Division, New Jersey.

April 2, 1951.

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Theodore Parsons, Atty. Gen. (Nelson F. Stamler and Simon L. Fisch, Deputy Attys.Gen., and George H. Stanger, Prosecutor of Cumberland County, Vineland, appearing), for the State.

Robert G. Howell, Bridgeton, Smith, James & Mathias, Jersey City, attorneys for the defendantWestern Union Tel. Co. and Charles H. Frake.

John E. Selser, Hackensack, attorney for the defendantLeo Link.

HORUVITZ, J.C.C.

Defendants, the Western Union Telegraph Co.(hereinafter called Western Union).Charles H. Frake, Manager of the Bridgeton, New Jersey office of the Western Union, and J. W. Donaldson, alias Leo Link, were indicted by the Cumberland County Grand Jury on June 5, 1950.Five indictments were returned by the grand jury, Nos. 5012 to 5016, inclusive, all emanating from bookmaking charges.

The general story garnered from the indictments is that Frake, the local manager of the Bridgeton, New Jersey, branch office of the Western Union, took and received bets on horses at the said office and relayed them Via wire to Donaldson, alias Link, allegedly a bookie from Passaic County, New Jersey.A telegraphic fee was charged for the message which contained the name of the horses, the track, the number of the race, the amount bet and the betting positions, i.e., win,

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place or show.If success attended the operation, the bettor received his winnings minus telegraphic charges from the Western Union.

The named defendants move to quash all indictments.IndictmentNo. 5015 returned against Western Union, Frake and four others cannot be considered at this juncture, for the reason that extradition of the four other defendants has been refused by a sister state, and thus they are without the jurisdiction of this court.No application having been made by the State of New Jersey or the named defendants for a severance, the alleged deficiencies Vis-a -vis this particular indictment cannot now be resolved.The other indictments will be considered Seriatim.Forty-three reasons are assigned in support of the motions to dismiss the indictments.

No. 5012(Disorderly House)

This particular indictment charges that Western Union and Charles Frake, on June 22, 1948 and on other days preceding June 5, 1950, maintained a disorderly house contrary to R.S. 2:103--1, N.J.S.A., where betting and bookmaking were permitted.Attack is made thereon under three grounds.

It is first charged that the indictment fails to state facts constituting an offense under the designated statute.It is here urged that factual specificity is absent and in its stead appears only conclusions of the pleader.On a motion to dismiss, the facts stated in the indictment as constituting the offense must be taken as true.State v. Tachin, 92 N.J.L. 269, 106 A. 145(Sup.Ct.1919), affirmed93 N.J.L. 485, 108 A. 318(E. & A.1919): writ of error dismissed.Tachin v. State of New Jersey, 254 U.S. 662, 41 S.Ct. 61, 65 L.Ed. 463(1920);42 C.J.S., Indictments and Informations, § 214.The motion to dismiss will be denied unless the indictment on its face appears incapable of supporting a judgment of conviction.State v. Riggs, 91 N.J.L. 456, 106 A. 216(Sup.Ct.1918).Cf.State v. Shipley, 10 N.J.Super. 245, 77 A.2d 38(App.Div.1950).

Inspection of the challenged pleading reveals the required legal particularity.It sets forth, in brief, that the

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defendants for gain, wilfully and knowingly maintained at premises situate at No. 82 East Commerce Street, Bridgeton, New Jersey, a disorderly house where persons could engage in betting, bookmaking and gambling.Neither imagination nor presumption need be indulged in.The language is plain and unadorned, yet it contains the essential legal requirements.The word 'bookmaking' requires no explanation or definition.State v. Morano, 133 N.J.L. 428, 44 A.2d 786(Sup.Ct.1945), affirmed134 N.J.L. 295, 47 A.2d 419(E. & A.1946).A place of public resort for persons to bet upon horse racing is a disorderly house.State v. Lovell, 39 N.J.L. 463(Sup.Ct.1887).

A telegraph office was never intended to be a spa where devotees of the 'sport of kings' could place their bets, and when the plain language of an indictment so charges, an indictable offense is presented.

Research discloses no definition of a disorderly house at common law or in our statute, yet under the cases in our State any house which a jury finds to be open to and frequented by persons who so conduct themselves there as to violate the law and good order, may be a disorderly house.Burdick, Law of Crime, § 909;Russell on Crime (9th ed.), p. 1381;State v. Williams, 30 N.J.L. 102(Sup.Ct.1862);Brown v. State, 49 N.J.L. 61, 7 A. 340(Sup.Ct.1886);Bindernagle v. State, 60 N.J.L. 307, 37 A. 619(Sup.Ct.1897);State v. Berman, 120 N.J.L. 381, 199 A. 776(Sup.Ct.1938).

Reliance by the defendants is had on the case of State v. Solomon, 97 N.J.L. 252, 117 A. 260(E. & A.1922).This case is not helpful.There the indictment failed to charge an essential part of the statute upon which it was predicated.Here the crime of disorderly house is one of common law and all essential elements are contained therein.A plain reading of the indictment dissipates any converse suggestion.

This court is cognizant of the admonitions hurled at trial judges by the appellate courts--'Don't quash except on clear and plain grounds.'State v. Sweeten, 83 N.J.L. 364,

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85 A. 309(Sup.Ct.1912);State v. Proctor, 55 N.J.L. 472, 26 A. 804(Sup.Ct.1893);State v. Johnson, 82 N.J.L. 330, 81 A. 657(Sup.Ct.1911);State v. Davidson, Judge, 116 N.J.L. 325, 184 A. 330(Sup.Ct.1936);State v. Micone, 134 N.J.L. 177, 46 A.2d 663(Sup.Ct.1946);State v. Russo, 6 N.J.Super. 250, 71 A.2d 142(App.Div.1950).Such grounds are conspicuous by their absence in this case.

It is secondly charged that a paucity of details appears without which the defendants are disabled from adequately preparing their defense.Suffice it to say that if bills of particulars are desired, an avenue of approach to the courts is contained in Rule 2:4--14.See also comment on this Rule in the Tentative Draft.Bishop, New Crim. Procedure, § 643;State v. Hatfield, 66 N.J.L. 443, 49 A. 515(Sup.Ct.1901), affirmed67 N.J.L. 354, 51 A. 1109(E. & A.1902);State v. Pennsylvania R. Co., 84 N.J.L. 550, 87 A. 86(Sup.Ct.1918);State v. Dolbow, 117 N.J.L. 560, 189 A. 915, 109 A.L.R. 1488(E. & A.1937);Joseph L. Sigretto & Sons v. State, 127 N.J.L. 578, 27 A.2d 199(Sup.Ct.1942);State v. Eisenstein, 10 N.J.Super. 497, 77 A.2d 63(Cty.Ct.1950).

To buttress this charge, defense counsel cite Linden Park Blood Horse Ass'n v. State, 55 N.J.L. 557, 27 A. 1091(E. & A.1893).In this casethe defendant was convicted of the offense of keeping a common gaming house, an offense that was not among the specifications of misconduct that were in the indictment that made the house of the defendant a disorderly one.

The query that there presented itself to the court for solution was described by the court in this fashion: 'The crucial test of the inquiry obviously is whether the specifications of the act that constitute the house a disorderly one, are necessary parts of the charge.'This, as logic and reason demand, was answered in the affirmative.In the case at bar, we are not dealing with a trial and the court is not called upon to pass on a variance between the proof and the indictment.Neither is it called upon to pass upon generalizations in the indictment which lack a description of the crime of

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which the defendants are accused.As stated herein under the first ground, the offense charged was certain and identifiable.Other cases cited by the defendants relate to the important and accepted principle of law that the indictment must set forth the facts with such clearness and necessary certainty as to apprise the person accused of the offense of which he stands charged.Such is the law and the present indictment satisfies this principle.

It is further charged under this point that the indictment defies grammatical construction and is unintelligibly drawn.The spine of this indictment can withstand such verbal shivers.True it is that the pleading lacks literary finesse and grammatical nicety, but such is not its function.State v. Sweeten, supra.The crime charged is not statutory; thus, no exact pattern need be followed.The language used is seemingly archaic and tenuous, albeit clear upon examination.

It is thirdly charged that the pertinent statute, R.S. 2:103--1, N.J.S.A., has no application to the facts in the case at bar for the reason (1) that the intent of the Legislature was to strike at the heart of the professional gambler's means of activity, and (2) that the Western Union does not share in any way from the profits or losses of gambling activities.The reasoning is tortuous.In the first place, the statute specifically refers to ten crimes disassociated with gambling, to say nothing of the common law crimes in the same category, also numbering ten.A plain reading of the statute dissipates the first reason advanced.It provides that 'Assaults * * * and all other offenses of an indictable nature at common law, and not expressly provided for by statute, shall be misdemeanors.'Among these common law crimes not provided for by statute are: maintaining a disorderly house (such as is the charge here); barratry; being a common scold; conspiracy (in addition to the statutory crime); eavesdropping; engrossing; forcible entry and detainer; forestalling; libel; obstruction of justice, and suicide.O'Regan & Schlosser, New Jersey Criminal Practice & Procedure, p. 441.

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Independent research and study fail to disclose any decisions in the English-speaking world which make it a Sine qua non for indictments in bookmaking cases that each defendant...