State v. Dougherty

• Citation: 96 A. 56,88 N.J.Law 209
• Decision Date: 15 November 1915
• Docket Number: No. 27.,27.
• Parties: STATE v. DOUGHERTY et al.
• Court: New Jersey Supreme Court

96 A. 56

88 N.J.Law 209

STATE

v. DOUGHERTY et al.

No. 27.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1915.

(Syllabus by the Court.)

Walker, Ch., and Trenchard, Black, Heppenheimer, and Williams, JJ., dissenting.

Error to Supreme Court.

Harry Dougherty and another were convicted of conspiracy to pervert the due administration of laws. From a judgment of Supreme Court affirming conviction (86 N. J. Law, 525, 93 Atl. 98), defendants bring error. Reversed, and record remitted.

Robert H. McCarter, of Newark (William P. Sooy, of Atlantic City, on the brief), for plaintiffs in error. Charles S. Moore, County Prosecutor, of Atlantic City, and Edmund Wilson, of Trenton, for the State.

SWAYZE, J. The first count in the indictment, on which alone the state elected to stand, charges that the plaintiffs in error and others named conspired to pervert the due administration of the laws relating to the municipal government of Atlantic City by corruptly passing an ordinance for the passage of which the nine defendants (including the two now plaintiffs in error) were to receive as bribes from one Harris, a person interested in securing the passage of the ordinance, the sum of $500 each; that the defendants, in execution of said agreement, passed the ordinance, and, in further execution of the agreement, received the sums agreed upon as bribes. At the trial it was proved that "Harris" was an alias for Reed, who was in the employ of a detective engaged under the direction of the law officers of the state in the effort, which for four months had been unsuccessful, to detect the defendants in corrupt conduct as members of the council of Atlantic City; that the whole scheme was a plot contrived by him for the purpose of luring members of the common council by the promise of money into voting for an ordinance for a large public work, the merit of Which by itself is not questioned; that it was never meant to proceed with the work when authorized, the only object being to catch the defendants in corrupt conduct. There was no evidence that any money was ever paid to Murtland. While the ordinance was pending Murtland asked Reed how much money he was to receive that day, said that he would not accept $500, that he did not care to take the risk with less than $5,000, and after some further conversation added that he would not interfere with the program and wished to be remembered when it came to the contract.

We think it is unnecessary to consider the very interesting and important question so ably discussed by counsel whether it is a good defense to an indictment that the defendants were entrapped into the alleged criminal conduct by representatives of the state. Cases may be found where this defense was rejected, and others where it was held good. We limit our decision to the particular facts of this case.

The charge is that there was a conspiracy to pervert the due administration of the laws relating to the municipal government of Atlantic City by corruptly passing an ordinance for bribes to be paid by Harris, a person interested in securing its passage. The indictment is not for bribery, but for conspiracy, and not for conspiracy among the defendants alone to sell their votes or to force "Harris" to pay money. The charge is that the conspiracy was with "Harris"; that he was to pay and did pay money. The conspiracy with "Harris" as the prime mover and an essential party is not only the conspiracy charged in the indictment, but the conspiracy on which the state, in fact, relied at the trial. It was only that alleged conspiracy that made admissible, so far as it was admissible, the testimony as to interviews between "Harris" and Phoebus on December 5, 1911, at which the tw6 planned for the corruption of the other defendants. It was this conspiracy between "Harris" and Phoebus into which the defendants are said to have come subsequently. The nature of the charge in the indictment relieves us from the necessity of considering the effect of entrapment by the state, which would confront us if the indictment were for a conspiracy by the defendants alone to sell their votes or to extort money as the condition of passing an ordinance introduced in good faith and meant to become effective legislation of the city. The question is the much simpler one, whether a conspiracy originated by "Harris" under employment of the law officers of the state, with Phoebus as either stool pigeon or go-between, for the well-meant purpose of testing the virtue of public officials and preventing injury to the public by exposing and bringing them to punishment if they proved corrupt, was a conspiracy to pervert the due administration of the laws relating to the municipal government of Atlantic City. If it was not, the defendants are not guilty as charged, however reprehensible their conduct and character may have been. Since the indictment charges but one conspiracy, and "Harris" was a necessary party to the conspiracy proved, the prime mover therein, and the man who was to and did furnish the money, and since the conspiracy had no existence without him, the only conspiracy for which the defendants could be convicted is that organized by "Harris." Unless that conspiracy is criminal, the defendants are not guilty as charged. If it is criminal, "Harris" is also guilty. To so hold, it would be necessary to hold that "Harris'" act was a preversion of the due administration of the law. To avoid that absurdity, it is necessary to hold that the conspiracy was not a conspiracy to pervert the due administration of the law, as charged in the indictment. It was, in fact, an arrangement to secure the due administration of the law by demonstrating the readiness of the councilmen to be corrupted, in a made-up plan not meant to be executed, in order to prevent by exposure similar corruption in the genuine legislation of the city. Without the complicity of "Harris" the conspiracy is not proved; with him it ceases to be a conspiracy to pervert the due administration of the laws, and is no crime. We are less reluctant to reach this result than we should otherwise be, for the reason that the state sought by indicting the defendants for conspiracy to make available statements made by "Harris" and Phoebus in the absence of the other defendants even before they had come into the conspiracy, and by Phoebus after the object of the conspiracy had been obtained. The state, having sought and obtained the advantage of an indictment for conspiracy, must in fairness be subjected to its disadvantages. It cannot be permitted by splitting the single conspiracy in two to say one was criminal and the other meritorious; that in one the councilmen alone were involved, in the other "Harris" was also a party, when the fact is that "Harris" was a necessary party throughout. As the Supreme Court of the United States has recently said:

"The character and effect of a conspiracy is not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole." U. S. v. Patton, 226 U. S. 525, 544, 33 Sup. Ct. 141, 145 (57 L. Ed. 333, 44 L. R. A. [N. S.] 325).

The case is analogous to the old case where a man arranged through a third party for a highway rohbery to be committed upon himself, with a view to receiving a reward offered for the apprehension of highway robbers. It was held that the defendant could not be convicted, since the force requisite to constitute a highway robbery had not been used; the alleged victim having himself authorized it R. v. McDaniel, Fost. C. L. 121; R. v. Fuller, R. & R. 408. On an indictment for burglary the entry was held not burglarious because made with assent of detectives who were in the occupancy and control of a bank with the consent of the owners. "This cannot be burglary," said the court, "in contemplation of law, however much the defendant was guilty in purpose and intent." Speiden v. State, 3 Tex. App. 156, 30 Am. Rep. 126; R. v. Johnson, C. & M. 218. On an indictment for bribery, where an officer first suggested his willingness to accept a bribe, and apparently joined the defendant in a criminal act suggested by the officer merely to entrap the defendant, the case was held not within the spirit of the criminal code. O'Brien v. State, 6 Tex. App. 665. In larceny, where the entrapment is by the owner or by a detective as his agent, their participation takes away the essential element of a conversion against the will of the owner. Wharton, Cr. L. § 917.

These cases were decided upon the ground that an essential element of the crime was absent. We do not approve the distinction attempted in the Ohio case of Diegle v. State,¹ a report of which was furnished by the prosecution, between an injury to a private citizen, as in the case of highway robbery, burglary, or larceny, and an injury to the public, as in the case of bribery. All crimes alike, under our modern legal theories, are crimes against the public, and all are...