Opinion
Argued October 7, 1963 —
Decided October 21, 1963.
Appeal from the Superior Court, Appellate Division
Mr. Frank P. Lucianna argued the cause for appellant.
Mr. John K. Walsh, Assistant Prosecutor, argued the cause for respondent ( Mr. Guy W. Calissi, Bergen County Prosecutor, attorney).
The opinion of the court was delivered
Defendant's conviction for bookmaking was affirmed by the Appellate Division, and one judge there dissenting, defendant prosecuted a further appeal to us. R.R. 1:2-1 (b).
The substantial issue is whether the trial court invaded the jury's province. We agree with the Appellate Division that upon the entire charge the jurors must have understood that the issue of guilt was wholly for them without any finding thereon by the trial judge, and hence the error complained of was not harmful.
We add a word with respect to the trial court's use of "prima facie" in speaking of the evidential impact of proof of possession of gambling paraphernalia. "Prima facie," a shorthand expression for the sufficiency of proof upon some factual issue, belongs to the lexicon of lawyers. As to jurors, the charge should say simply that it is for them to decide whether the State carried its burden of proof upon a consideration of the whole case. However, we are satisfied that in the context of the entire charge the use of "prima facie" did not suggest that the law predetermined the inculpatory thrust of the evidence or shifted to defendant the burden of proof or persuasion.
The judgment is affirmed.
For affirmance — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.
For reversal — None.