State v. Goldman

• Decision Date: 09 May 1967
• Docket Number: No. A--708,A--708
• Citation: 229 A.2d 818,95 N.J.Super. 50
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Milton GOLDMAN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 50

95 N.J.Super. 50

229 A.2d 818

STATE of New Jersey, Plaintiff-Respondent, v. Milton GOLDMAN, Defendant-Appellant.

No. A--708.

Superior Court of New Jersey Appellate Division.

Argued Dec. 5, 1966.

Decided May 9, 1967.

Norman Fischbein, Newark, for appellant.

James R. Zazzali, Newark, for respondent (Brendan T. Byrne, Pros. of Essex County, attorney).

Before Judges CONFORD, FOLEY and LEONARD.

PER CURIAM.

Defendant was convicted of conspiracy to violate the statutes prohibiting operation of a lottery. He appeals on a number of grounds none of which is found to have merit. A previous conviction of defendant on this charge was reversed on grounds not now relevant.

The State's case rested primarily on the testimony of one Josephine Harris, indicted with defendant as a co-conspirator, but not tried. Her indictment was dismissed on motion of the State after the previous trial of defendant. She testified in effect that defendant had requested her 'to write numbers for him' some time prior to March 28, 1962, and that she did so under his direction until that day, when she was arrested. She turned over the proceeds to defendant and he paid her a commission.

The first ground of appeal is that since a conspiracy involves action of more than one person, a conviction of only one of two conspirators named in an indictment cannot be sustained. Defendant's position is not sustained by the only case he cites, State v. Oats, 32 N.J.Super 435, 108 A.2d 641 (App.Div.1954), where the court had for consideration the problem whether a conviction of conspiracy on a plea of Non vult should be set aside where the alleged co-conspirator was later acquitted. Pointing to conflicting decisions on the question, the court expressed doubt on the point (at p. 441), but held there was no 'manifest injustice' in permitting the conviction to stand (at p. 442). While there is authority that if all but one of the named co- conspirators are acquitted a conviction of the remaining one cannot logically stand, Annotation, 91 A.L.R.2d 700, 705 (1963), this philosophy is not applicable where no disposition on the merits has been made of the charges against the other accused, Id., at p. 711 et seq., as where the charges against the others have been dismissed by Nolle prosequi. United States v. Fox, 130 F.2d 56 (3 Cir. 1942), certiorari denied 317 U.S. 666 (1942). Cf. State v. Salimone, 19 N.J.Super. 600, 89 A.2d 56 (App.Div.1952), certifications denied 10 N.J. 316, 91 A.2d 230 (1952).

Since neither the guilt nor the innocence of Harris was settled by the voluntary dismissal as to her, logic does not call for the automatic exculpation of defendant on that basis. Nor, in our view, does any consideration of fairness or policy. See United States v. Fox, supra (130 F.2d, at pp. 58--59).

Defendant also contends that there was a fatal deficiency of proof in that the indictment charged the conspiracy occurred between March 21 and March 28, 1962, whereas the testimony of Harris indicates the illegal agreement, as distinguished from the overt acts, took place two or three months previously. The witness was rather vague, perhaps...