People v. Abelson

Per Curiam.

The judgments of conviction of the nine appellants must be reversed and a new trial ordered for the following reasons: (1) the proof of voice identification was inadequate to send the question to the jury, (2) the People failed to prove, prima facie, that appellants were engaged in a single conspiracy to commit the crime of book-making, (3) the People failed to prove, prima facie, that appellants, or any of them, committed the crime of book-making, and (4) there was no explanation given to the jury of the meaning of the jargon employed by the telephone conversants.

As to (1): The People’s case against the appellants rests upon the testimony of a special investigator for the District Attorney who, pursuant to the authority of two Supreme Court orders, listened in on over one hundred telephone conversations during some two weeks’ time for six hours each day and then identified the nine appellants and at least ten others, three months later, as possessing voices he had previously heard in such telephonic wire tapping. At the time he heard the voices he did not know the persons to whom any of the voices belonged except appellants Promen and Becker. While the investigator was listening in on the unfamiliar voices, he was busily making pencilled notes and attempting to record the substance of the conversations on the telephones.

There is, in this record, no individual identification of the voices of the telephone conversants but, rather, a collective or general description. Accordingly, on the state of this record we hold, as a matter of law, that the investigator’s identification of voices he heard on the telephones as belonging to appellants falls below the standard necessary to rebut the presumption of innocence and to prove the guilt of the appellants beyond a reasonable doubt.

As to (2): The indictment charges that appellants entered into a single conspiracy to commit the crime of book-making. However, the evidence against appellants does not spell out the details of any specific or unified effort but rather a series of disconnected transactions from which, at the most, inference of several conspiracies may be drawn.

As to (3): The People failed to prove the corpus delicti of the crime of book-making which is the acceptance of bets on a professional basis “ * * * upon the result of any trial or contest of skill, speed or power of endurance of man or beast * * (Penal Law, § 986.) There is no proof in this record that on the days set forth in the indictment (a) any horse races were run, (b) the names mentioned in the conversations were the names of horses, (c) any such horses were entered or ran in races on such dates, (d) any baseball games were played on the dates designated, or (e) any boxing matches were staged on such dates or that the names heard in the conversations were the names of participants who engaged in such boxing matches.

As to (4): The tapped conversations were carried on in a jargon, which the People claim is the jargon of book-makers. At no time did the People qualify an expert to explain to the court and jury the meaning of the expressions used. In the course of the trial the Presiding Justice himself remarked that the jargon ‘1 is unfamiliar to me, although the words are our English language ”. Despite this, the jury was given no explanation of the meaning of the expressions in question but was permitted to speculate as to their meaning.

The judgments should be reversed, the fines remitted and a new trial ordered.

Conway, Ch. J., Desmond, Ftjld, Froessel, Van Voorhis and Burke, JJ., concur; Dye, J., taking no part.

Judgments reversed, etc. i