State v. Aircraft Supplies, Inc.

• Decision Date: 26 April 1957
• Docket Number: No. 4265,4265
• Citation: 45 N.J.Super. 110,131 A.2d 571
• Parties: The STATE of New Jersey v. AIRCRAFT SUPPLIES, Inc., a corporation of the State of New Jersey, Martin I.Falk and Jesse L. Bailey, Defendants. (Criminal), New Jersey
• Court: New Jersey County Court

Page 110

45 N.J.Super. 110

131 A.2d 571

The STATE of New Jersey v. AIRCRAFT SUPPLIES, Inc., a corporation of the State of New

Jersey, Martin I.Falk and Jesse L. Bailey, Defendants.

No. 4265.

Passaic County Court

Law Division (Criminal), New Jersey.

April 26, 1957.

Charles S. Joelson, Acting County Pros., Paterson, for the state.

Toolan, Haney & Romond, Perth Amboy, for defendants Aircraft Supplies, Inc. and Martin I. Falk.

Nicholas Martini, Passaic, for Jesse L. Bailey.

COLLESTER, J.C.C.

The defendants have moved before this court to dismiss an indictment charging them with the crime of conspiracy.

The indictment charges that the defendants conspired between March 21, 1951 and February 28, 1954 'to commit certain crimes and unlawful acts.' It charges that the defendant Martin I. Falk, president of Aircraft Supplies, Inc., and one Charles H. Coburn (now deceased), vice-president of the defendant corporation, entered into an agreement with the defendant Jesse L. Bailey to pay secret commissions to the latter without the knowledge and consent of Bailey's employer, American Airlines, Inc., in return for which Bailey gave them information of the amounts of bids submitted to his employer by competing supply vendors, enabling Aircraft Supplies, Inc. to underbid such competitors.

The overt acts charged in the indictment allege that during said period Bailey was paid secret commissions of $46,333.79 and that as a result of information concerning bids of competing vendors furnished to the co-defendants, Aircraft Supplies, Inc. secured purchase orders from American Airlines, Inc. totaling $1,174,031.70.

The defendants contend (1) that this court lacks jurisdiction, (2) the offense is a violation of the Disorderly Persons Act and is not a crime, and (3) the defendant corporation and Falk have statutory immunity from prosecution.

The State contends (1) that this court has jurisdiction, (2) the offense charged is common law conspiracy under N.J.S. 2A:85--1, N.J.S.A., and (3) the alleged immunity is not applicable.

In support of their motion the defendants allege that the offense charged in the indictment is the same offense proscribed by N.J.S. 2A:170--88, N.J.S.A., which is not a crime but a violation of the Disorderly Persons Act. Said statute provides

'Any person who gives, offers or promises any gift or gratuity to any employee without the knowledge and consent of his employer, and with intent to influence his action with relation to his employer's business, and any employee who, without the knowledge and consent of his employer, requests or accepts any gift or gratuity, or any promise to make a gift or to do any act beneficial to himself, under an agreement or understanding that he shall act in any particular manner to his employer's business, is a disorderly person.'

The offense charged under N.J.S. 2A:170--88 prior to January 1, 1952 was a misdemeanor under R.S. 2:114--11. It was downgraded by the Legislature to become a violation of the Disorderly Persons Act on said date.

The defendants contend that by downgrading the offense such legislative action bars prosecution of the offense under the statute authorizing prosecution of common law conspiracy under N.J.S. 2A:85--1, N.J.S.A., on which the present indictment is based. They point out that the 'omnibus' statute, N.J.S. 2A:85--1, N.J.S.A., provides that:

'* * * all other offenses of an indictable nature at common law, and not Otherwise expressly provided for by statute, are misdemeanors.' (Italics mine.)

It is their contention that since the Legislature has 'otherwise expressly provided for' the prosecution of the offense under section 88 of the Disorderly Persons Act, the State cannot upgrade the offense to a misdemeanor by prosecuting the same as a conspiracy. It is noted that the indictment does not charge 'statutory conspiracy' under N.J.S. 2A:98--1, N.J.S.A., but does charge common law conspiracy under N.J.S. 2A:85--1, N.J.S.A.

It is conceded that common law conspiracy was not preempted by the enactment of the statute relating to the crime of conspiracy. It remains a misdemeanor under N.J.S. 2A:85--1, N.J.S.A. State v. Loog, 179 A. 623, 13 N.J.Misc. 536 (Sup.Ct.1935), affirmed State v. Henry, 117 N.J.L. 442, 188 A. 918 (E. & A.1937); State v. O'Brien, 136 N.J.L. 118, 54 A.2d 806 (Sup.Ct. 1947).

In Johnson v. State, 26 N.J.L. 313, 321 (Sup.Ct.1857), affirmed 29 N.J.L. 453 (E. & A.1861), the former Supreme Court defined conspiracy at common law as follows:

'Conspiracy, at common law, is a confederacy of two or more persons wrongfully to prejudice another in his property, person, or character, or to injure public trade, or to affect public health, or to violate public policy, to obstruct public justice, or to do any act in itself illegal. 4 Black Com. 136, Chitty's note (31); 2 Russ. on Crimes 553.'

This court cannot agree with the general principle that where the over act charged in an indictment for common law conspiracy has been downgraded by the Legislature from the status of a crime to one of a violation of the Disorderly Persons Act, the accused cannot be prosecuted under N.J.S. 2A:85--1, N.J.S.A.

It is the corrupt agreement between the parties, the conspiracy itself which constitutes the crime. The overt act set up in an indictment may or may not be in itself criminal; the conspiracy is the crime, and the overt acts may be relatively insignificant. State v. O'Brien, 136 N.J.L. 118, 123, 54 A.2d 806 (Sup.Ct.1947). See also, State v. Western Union Tel. Co., 13 N.J.Super. 172, 80 A.2d 342 (Cty.Ct.1951); State v. Ellenstein, 121 N.J.L. 304, 2 A.2d 454 (Sup.Ct.1938); State v. Bienstock, 78 N.J.L. 256, 73 A. 530 (Sup.Ct.1909).

However, we are confronted in this case with a situation which is novel.

An examination of the allegations contained in the indictment discloses that the facts to be proved to warrant a conviction would be the same as those required to be proved to establish a violation of the offense condemned in N.J.S. 2A:170--88, N.J.S.A.

A careful reading of said statute, which describes an offense commonly designated as 'commercial bribery,' shows that such offense requires concert of action by two parties--the Giver of the gratuity and the Receiver of the gratuity. The statute further indicates that such acts, of giving and receiving, must be made Under an agreement or understanding that the receiver shall act in some particular manner in reference to his employer's business.

A person cannot agree with himself, receive from himself, or give to himself. The concurrent acts of two persons are necessary to the act of agreeing, receiving or giving.

What is the offense charged in the indictment? In substance it charges that the defendants Aircraft Supplies, Inc., Martin I. Falk, and the deceased Charles H. Coburn were the Givers of secret commissions to the defendant Jesse L. Bailey, the Receiver, under an agreement that the receiver would act in a particular manner to his employer's business by furnishing to Aircraft Supplies, Inc., Falk, and Coburn information concerning bids submitted by competing supply vendors, thereby enabling Aircraft Supplies, Inc. to underbid the latter.

The question, under the facts presented, is whether or not an indictment for conspiracy will lie where the offense of commercial bribery charged requires the concerted action of the parties to the alleged conspiracy.

In State v. Lennon, 4 N.J.Super. 415, 67 A.2d 475 (App.Div.1949), the appellant argued that an agreement to commit an offense (conspiracy to violate the gambling laws) which can be committed only by the concerted action of the parties to the agreement does not create a criminal conspiracy. Judge Donges, in commenting upon this argument stated, 4 N.J.Super. at page 419, 67 A.2d at page 477:

'The general rule, urged by the appellant, although apparently not passed upon by the Courts of our State, has been dealt with in various Federal and State Courts in a few instances. The rationale of these decisions is that where the offense itself requires the concerted action of the parties to the alleged conspiracy, the 'conspiracy' between the parties to commit the same offense, adds nothing, and is not indictable as a separate offense. In other words, where the law has denounced the aggregate action of a plurality as constituting a named crime, this may not be circumvented by calling such aggregate action by another name, i.e., conspiracy.

'The rule appears to have its origin in crimes such as adultery and other sexual offenses, where joint action of several persons is necessary. In this class of cases it seems to have been uniformly applied. State v. Law, 189 Iowa 910, 179 N.W. 145, 11 L.R.A. 194 (Sup.Ct.1920); Shannon v. Com., 14 Pa. 226 (1850); Miles v. State, 58 Ala. 390 (1877).

'The rule has, likewise, been held applicable to bribery. United States v. Dietrich, 126 F. 664 (C.C.D.Neb.1904); U.S. v. Sager, 49 F.2d 725 (C.C.A.2, 1931); People v. Wettengel, 98 Colo. 193, 58 P.2d 279, 104 A.L.R. 1423 (1935).' (Italics mine.)

On the facts presented in the Lennon case, supra, Judge Donges held that the foregoing rule did not apply, stating:

'* * * Where a crime, from a legal standpoint, may be committed by one person only, a conspiracy between two or more persons to commit that offense changes the character of the offense and the stated rule does not apply.'

In the opinion affirming the decision of the Appellate Division (State v. Lennon, 3 N.J. 337, 70 A.2d 154, 157 (1949)), our Supreme Court through Justice Heher took note of the 'concert of action rule' and indicated it did not apply under the facts in that case. He stated:

'This is not a case for the operation of the principle that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy.'

The principle here involved, and referred...