State v. Carbone, No. A--7

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: HEHER
• Citation: 91 A.2d 571,10 N.J. 329
• Docket Number: No. A--7
• Decision Date: 14 October 1952
• Parties: STATE v. CARBONE et al.

Page 329

10 N.J. 329 91 A.2d 571 STATE
v.
CARBONE et al. No. A--7. Supreme Court of New Jersey. Argued Sept. 8, 1952.
Decided Oct. 14, 1952.

Page 333

[91 A.2d 572] George R. Sommer, Newark, argued the cause for appellants (Pearce R. Franklin, Newark, of counsel, with appellant Loretta Franze).

Edward Gaulkin, Essex County Prosecutor, Newark, argued the cause for the State (C. William Caruso, Newark, on the brief).

The opinion of the court was delivered by

HEHER, J.

After affirmance by the Appellate Division of the Superior Court, we certified for [91 A.2d 573] appeal a judgment of conviction entered on a jury verdict against appellants Carbone and Franze upon the trial of an indictment charging that on June 26, 1950, 'and continuing to and including July 22, 1950,' at the City of East Orange, New Jersey, Carbone and Franze and 'John Doe,' whose true name was unknown, conspired to transgress the laws of the State denouncing bookmaking on horse races. There was, it is said, a severance as to the person described by the fictitious name.

Page 334

The indictment alleges these overt acts to effect the object of the pleaded conspiracy: On June 26, 1950, 'John Doe' introduced one John Kammerer to Carbone 'for the purpose of having' Carbone 'establish' kammerer in 'a place' in East Orange 'for the unlawful making and taking of what is commonly known as a book upon' horse races; and Carbone thereupon introduced Kammerer to Franze 'for the purpose of having' Kammerer 'make and take * * * a book upon' horse races 'in the premises known as No. 106 North Grove Street, in East Orange.' On the day given, and on divers other days thereafter until July 22, 1950, Franze 'permitted' Kammerer 'to enter the premises' 106 Grove Street, in East Orange, 'for the purpose of making and taking * * * a book on' horse races. On June 28, 1950, at East Orange, 'John Doe' received the sum of $150 from Kammerer, 'as a rental for the use of the premises' named for the stated unlawful purpose; and on July 1, 1950, and again on July 16 ensuing, 'John Doe' received the sum of $300 from Kammerer, in each instance 'as a rental for the use of the premises' for the same unlawful purpose.

There was evidence tending to show the illegal combination charged, the commission of the overt acts specified and other such acts in the advancement of the undertaking, and Kammerer's participation in the conspiratorial design.

Briefly, in the latter part of June, 1950, at the City of New York, Kammerer was introduced to a man known to him only as 'Murray' by one Kalik, a known bookmaker then plying his trade in that city. 'Murray' is referred to in the indictment by the fictitious name. Kalik told Kammerer: 'Go with Murray to Jersey and he will get a phone for you.' This for the purpose of bookmaking on horse races. Kammerer accompanied Murray to a drug store on Main Street in East Orange, New Jersey. Murray entered the drug store and soon returned with a man identified as the defendant Carbone, whom he introduced to Kammerer. In response to Carbone's inquiry, Kammerer said he was ready for business and needed 'only a scratch sheet, a pencil

Page 335

and some scratch paper.' Carbone instructed Kammerer to pay Murray for the use of the telephone--$150 for the first week, and thereafter $300 on the first and fifteenth days of each month. Murray then went on his way. Carbone drove Kammerer to an automobile service station nearby and there he made a telephone call, after which he handed Kammerer a slip of paper bearing the number of the telephone in the defendant Franze's apartment in the building at 106 North Grove Street, in East Orange, provided him with 'a scratch sheet, pencil and some scrap paper,' and then drove him to the apartment house. Carbone entered the building, telling Kammerer to wait, and returned in a few minutes and supplied Kammerer with a key to the building's street entrance and a key to the Franze sixth-floor apartment; and thereupon they proceeded to the apartment, where Kammerer and Mrs. Franze were introduced, the former as 'Jack' and the latter as 'Laura.' Carbone indicated to Kammerer the table, telephone and radio in the apartment to be used in the bookmaking venture; and he told Mrs. Franze to present her telephone bills to Kammerer for payment. Carbone departed and had no further contact with Kammerer. Thereafter, Kammerer was a daily occupant of the apartment (excluding Sundays) from 11:30 A.M. to 5:30 P.M., receiving bets over the telephone from Kalik's customers, a list of whom was supplied by Kalik each morning before Kammerer left New York City for East Orange, and was returned by Kammerer with bets recorded to a man known as 'Charlie' upon his return to New York City in the evening. 'Charlie' provided him with the money to pay the telephone bills incurred at the East Orange apartment.

[91 A.2d 574] The insistence is that since Kammerer 'was not charged in the indictment either as a defendant' or as 'a conspirator with any of the defendants,' evidence of his 'operations' and 'conversations' in furtherance of the conspiracy was not admissible against the defendants Carbone and Franze, unless the occurrences were in their presence; and, moreover, that since 'the evidence clearly showed that Kammerer was

Page 336

a party to a conspiracy together with' Kalik and one Katz 'to make book,' and neither 'Murray,' Carbone nor Franze 'had any interest whatsoever in that conspiracy,' Kammerer's 'acts in the apartment and in New York were performed on behalf of Kalik and Katz,' and so Kammerer 'was not acting as agent of either of the defendants, and the evidence was not admissible on the theory of agency.' The argument proceeds on the hypotheses that neither Carbone nor Franze had 'a stake in the venture which Kammerer was conducting for Kalik and Katz'; that Carbone's 'only act was obtaining a phone at a price payable to Murray and not to him'; that Franze was not shown to have had 'any knowledge, at the inception, of...