Murzda v. Duch

178 A. 629, 13 N.J. Misc. 429, 1935 N.J. Sup. Ct. LEXIS 289

• Court: Supreme Court of New Jersey
• Decided: May 15, 1935
• Status: Published

Opinion

Bobine, J.

(At chambers.) The prosecutor in certiorari was convicted in the Police Court of Trenton. The charge was that he had in his possession lottery slips, an offense denounced by subdivision c of section 1 of the Disorderly Persons act (Comp. Stat. 1910, p. 1764, §§ 57, 58) as amended in 1934. N. J. Stat. Annual 1934, § 59-48.

Section 58 of the Crimes act (similar to a provision of law existing in 1897), in part provides that any person who shall knowingly have in his or her possession any slip or memoranda in any way pertaining to a lottery shall be guilty of a high misdemeanor.

The constitution of this state, as amended in 1897, provided in part, that the penalty then provided fo'r the infringement of any of the gambling laws of this state should be in nowise diminished.

It was settled in Dombrowski v. State, 111 N. J. L. 546; 168 Atl. Rep. 722, that the 1933 amendment to the Disorderly Persons act, in so far as it provided that any one who should possess a number game slip should be deemed a disorderly person, was unconstitutional, because a number slip was after all a slip in a lottery game and the legislature was precluded from making that which was a high misdemeanor a mere disorderly act.

As was pointed out in Dombrowski v. State, supra, those who infringe the gambling laws may be as easily prosecuted for a high misdemeanor as for a mere disorderly act.

Since the constitution precludes the legislature from making any change which will in any way diminish the punishment provided by law, for the suppression of gambling, existing at the time the constitutional amendment was adopted, • the prosecuting authorities will be obliged to proceed under the statute and laws which existed in 1897, and may not avail themselves of the provisions of the Disorderly Persons act as amended in 1933 or 1934. N. J. Stat. Annual 1933, § 59-2, and 1934, § 59-48.

The conviction will be set aside.