State v. Faure

• Decision Date: 18 December 1922
• Parties: STATE v. FAURE.
• Court: New Jersey Supreme Court

119 A. 4

STATE

v. FAURE.

Supreme Court, of New Jersey.

Dec. 18, 1922.

Error to Court of Quarter Sessions, Hudson County.

Gaudence C. Faure was convicted of conspiracy to steal, and he brings error. Reversed.

Argued June term, 1922, before GUMMERE, C. J., and SWAYZE and TRENCOHARD, JJ.

Merritt Lane, of Jersey City, for plaintiff in error.

Pierre P. Garven, Prosecutor of the Pleas, of Bayonne, and George T. Vickers, Asst. Prosecutor of the Pleas, of Jersey City, for the State.

GUMMERE, C. J. The defendant, Faure, was convicted upon an indictment charging him with conspiring with Anthony Brex and Alfonso Villain, "together with divers other evil disposed persons, whose names are to the grand inquest unknown," to steal certain sheepskins, being the property of R. Neuman & Co., and the stealing of such skins in the execution of the criminal agreement. When the case was moved for trial, it appeared that the defendant Villani was a fugitive from justice, and an application was made for a severance and the trial of Faure alone; the application being based upon the fact of Villani's absence, and the further fact that Brex had been subpoenaed as a witness for the state. The motion was granted, and the trial proceeded against the defendant, Faure.

The proofs submitted on the part of the state in support of the charge laid in the indictment showed that the criminal agreement averred therein was originated by Faure and one Vogel, an employee of Neuman & Co., the latter not being named in the indictment. The scheme concocted by these two was that Vogel should steal the skins; that he should employ Brex to secretly carry them away from the Neuman premises; that the latter should deliver them to Villani, who had a place of business in Newark; that Villani should sell them; and that the proceeds of the sales should be divided among the four. The proofs further showed that this scheme, originated by Faure and Vogel to rob Neuman & Co., was carried out in accordance with the plans formulated by the two.

At the close of the trial, counsel for the defendant submitted, among others, the following request:

"It is not sufficient to convict the defendant to prove that he conspired with Vogel. The state must show a conspiracy with Brex or Villani."

This request the court refused to charge, and instead instructed the jury as follows:

"You cannot convict Faure unless you find that he did conspire with somebody, because the offense is one that is capable of enactment only through the joint conduct of two or more people; so if you find that this defendant unlawfully conspired with another person to commit the crime of larceny, and that one of those conspirators, but not the defendant or one of the others, did some overt act in furtherance of or in execution of the project, then there would be sufficient proof here for you to say that he is guilty under this indictment."

The refusal to charge the request and the instruction just recited are made the basis of the principal assignment of error.

The judicial action complained of was apparently rested upon the theory that, because the indictment charged that the parties to the criminal conspiracy were not only Faure, Brex, and Villani, but "divers other evil disposed persons, whose names are to the grand inquest unknown," Vogel might properly be considered to have been embraced in this class of unnamed persons, and that therefore a conspiracy between him and Faure would support a conviction had against the latter. But this theory is unsound, unless it was the fact that at the time of the preparatlon and presentation of the indictment Vogel...