State v. RabatinState v. Rabatin
The defendant George Rabatin was tried and convicted in the Burlington County Court on two indictments. One indictment charged that on December 27, 1951, he “willfully and unlawfully did make and take what is commonly known as a book upon the running of horses, mares and geldings contrary to the provisions of R.S. 2:135-3 * * *” and the other indictment charged that on December 27, 1951, he “unlawfully did carry concealed in a certain automobile, which said automobile was then and there owned by the said George Rabatin, a certain firearm, to wit, a.32 calibre Colt Revolver, without having first obtained the requisite permit to carry the same, contrary to the provisions of R.S. 2:176-41 * * *.” After the defendant and another witness had been heard on the defendant‘s case, the defendant rested and moved for a judgment of acquittal.
On December 27, 1951 several state policemen, including Perrine, met near the Burlington Country Club by prearrangement, for the purpose of making raids in certain places in Burlington County. State Troopers Skok, Olaff and Allen were assigned to make the raid on 18 Alden Avenue, Roebling. Perrine gave them the license number and a description of the defendant‘s Cadillac car, and informed them of the location of defendant‘s poolroom at 18 Alden Avenue. Perrine saw the defendant in Mount Holly at about noon on December 27, 1951, driving his Cadillac car, license number CT56M, and headed toward Burlington. When the three state troopers arrived at Alden Avenue, Roebling, at about 1:30 P.M. to make the raid, they saw the Cadillac, license CT56M, which had been described by Perrine, parked across the street from 18 Alden Avenue. Trooper Allen was detailed to search the car, while Troopers Olaff and Skok were to go into the building at No. 18. Allen found the car unlocked, and in the glove compartment he found five slips of paper on which were recorded bets totaling $99 on horse races to be run that day, and underneath the front seat on the driver‘s side he found a fully loaded .32-caliber Colt revolver. The revolver could not be seen from any position outside the car, nor from any position inside the car without leaning over in front of the front seat and looking underneath.
Officer Olaff attempted to enter by the front door of 18 Alden Avenue, but found the door locked. As Officer Skok
When Officer Olaff asked the defendant where his car was, he replied that his wife had it, and when asked about the gun found in the car, the defendant “just shrugged his shoulders.” When Officer Perrine asked him what he was going to do with the gun, the defendant replied that “he had a lot of enemies.”
The defendant admitted that he conducted a poolroom at 18 Alden Avenue, but denied that there was any horse betting or bookmaking going on in his place on December 27, 1951, or at any other time; denied that the slips recording the horse race bets were his; denied he had ever seen the gun before, and denied that the blue notebook and the scratch pad found on him had any connection with bookmaking or horse betting. He testified further that on the previous evening, December 26, 1951, he had loaned his car to a friend named Cardis and that he had not seen the car again prior to the raid. He stated that he carried the scratch pad in his pocket for use in figuring out his bills, and he explained the numerous entries in the blue notebook with both plus and minus sums and definitely named persons as records of moneys owed by him and to him. On cross-examination, he admitted that some of the items in the notebook represented horse bets, and testified that the bets were legitimately made at Garden State Track by him for other people. With
“Well, I buy those sometimes. Like I said, I like to bet horses, you know; like to see what‘s running, you know. Maybe next spring, you know, next summer, when the tracks will be open in Jersey so maybe I could, you know, study them so I could pick myself a winner.”
Cardis testified, as a witness for the defendant, that the Cadillac was loaned to him on the evening of December 26, 1951, and that he became intoxicated that evening, slept in the car all night, and about 1 P.M. on December 27, 1951 parked the car across the street from the defendant‘s poolroom, without letting the defendant know that he had done so.
We are satisfied that a jury question was presented as to whether or not the Cadillac sedan and the revolver and the five horse race betting slips found in the car were in the custody and under the control of the defendant. The car was owned by and registered in the name of the defendant. There was testimony that he was seen driving it, almost daily between November 26, 1951 and December 27, 1951; that when followed, he always drove this car to Roebling and parked it at the same place where it was found on the day of the raid; and that on December 27, 1951, at about noon, which was only an hour and a half before the time the raid was made on his poolroom at 18 Alden Avenue, he was seen driving this car from Mount Holly toward Burlington. The testimony of the defendant and his witness Cardis concerning custody and control did no more than raise a question of fact for the determination of the jury.
As to the conviction for bookmaking, we think there was sufficient competent evidence to permit an inference by the jury that the defendant was guilty of bookmaking on December 27, 1951, as charged. Therefore, the trial court properly denied the motion for judgment of acquittal which was made at the end of the entire case. Cf. State v. De Falco, 8 N.J. Super. 295 (App. Div. 1950), certif. den. 5 N.J. 483;
The conviction for the crime of carrying a concealed weapon is attacked (1) on the ground that the State failed to prove the essential element that the gun was concealed, and (2) on the ground that the State failed to prove that the defendant did not first obtain the requisite permit to carry the gun.
R.S. 2:176-41, in pertinent part, provides:
“a person who shall carry in any automobile * * * or other vehicle, or concealed on or about his clothes or person; a. A pistol, revolver or other firearm without having first obtained a permit to carry the same in accordance with the provisions of this chapter * * * Shall be guilty of a misdemeanor.”
The indictment charged that he carried the gun “concealed in a certain automobile * * *.” To prove that a weapon is a concealed weapon under this type of statute, it is sufficient to prove that ordinary observation will give no notice of its presence; it is not necessary to prove that it is carried in such manner or in such a location as to give absolutely no notice of its presence under any kind of observation. 56 Am. Jur., Weapons, § 10. Cf. People v. Euctice, 371 Ill. 159, 20 N.E.2d 83 (Sup. Ct. 1939). Here the proof was that the revolver was found under the front seat of the car, in such a location that it could not be seen from outside the car and could be seen from within only by leaning over in front of the front seat and looking underneath. Thus there was sufficient evidence to support a finding that the revolver was concealed. The question whether a revolver carried in an automobile must be concealed in order to constitute a violation of R.S. 2:176-41 (now N.J.S. 2A:151-41) was not before us and we express no opinion thereon.
The fact that the State failed to prove that the defendant did not first obtain the requisite permit to carry
We conclude that the trial court properly denied the defendant‘s motion for judgment of acquittal on the charge of carrying the revolver in the automobile. Further, our review of the record convinces us that the jury verdict on this charge was not against the weight of the evidence. Cf. State v. Martinek, 12 N.J. Super. 320 (App. Div. 1951).
The judgments under appeal are affirmed.