State v. Gregory

• Decision Date: 20 June 1919
• Parties: STATE v. GREGORY.
• Court: New Jersey Supreme Court

107 A. 459

STATE

v. GREGORY.

Court of Errors and Appeals of New Jersey.

June 20, 1919.

Syllabus by the Court.

Additional Syllabus by Editorial Staff.

Error to Supreme Court.

Francis Gregory was tried alone on an indictment for conspiring to defraud, and from a conviction he brings error. Affirmed.

Howe & Davis, of Orange, for appellant.

J. Henry Harrison and Andrew Van Blarcom, both of Newark, for the State.

BERGEN, J. The grand jury of the county of Essex, at the September term, 1916, of that court, presented an indictment against Simon Hahn, John Gregory, and Francis Gregory for conspiring to defraud Charles M. Kase of the sum of $25,000. The indictment charges, in substance, that on the 30th day of December, 1913, Hahn, representing himself as well as the two Gregorys, obtained from Charles M. Kase the sum of $25,000, on the representation that one Charles Peaker demanded that sum to compromise a threatened action by him against Kase to recover damages for adultery alleged to have been committed by him with Peaker's wife; that this representation was false to the knowledge of the two Gregorys and Hahn, and intended by them to cheat and defraud Kase; that Kase paid to Hahn the sum of $25,000, which the conspirators procured for the purpose of a division. The proof shows that, of this sum, $2,000 was paid to Peaker, and the balance, to the extent of $18,000, was divided between the conspirators; that only $20,000 was divided because Hahn represented to his joint conspirators that that was the sum collected; that subsequently some of the other conspirators, discovering the fraud of Hahn, they, Francis Gregory being one, demanded that Hahn divide the $5,000 as a part of the result of the conspiracy, to which Hahn acceded; that on the 4th day of January, 1915, the residue of the $25,000 was divided among the conspirators, of which the defendant Francis Gregory received $1,250 for himself and John Gregory, and divided it equally between himself and John Gregory. The defendant, being convicted, has appealed to this court, and first argues that the statute of limitations applies because the conspiracy to obtain the money was completed on December 30, 1913, when the first division was made, and therefore, more than two years having elapsed after the money was obtained before the indictment was presented, the statute applies, notwithstanding the fact that the last division of the money thus obtained was made January 4, 1915, which was less than two years prior to the presenting of the indictment.

Francis Gregory was tried alone, a severance having been ordered, and the evidence warrants the finding that the three defendants conspired to cheat and defraud Kase of $25,000; that in pursuance of this arrangement Hahn obtained from Kase $25,000, but falsely represented to the other conspirators and to Peaker that all he obtained was $20,000; that this sum of money was divided more than two years before the finding of the indictment; and that subsequently the defendant, ascertaining that Hahn had withheld $5,000, demanded a further division and this was made January 4, 1915.

The question to be considered is whether the crime was completed when the first division was made, or whether it continued until the final distribution in 1915. The crime charged was a conspiracy to cheat and defraud Kase of a large sura of money to be divided between the conspirators, which was not completely divided until 1915. We are of opinion that the crime was not completed until its fruits were finally divided, and that the acceptance of the last dividend was an overt act in execution of the conspiracy. If any one of the conspirators had withdrawn after the first division, the statute might be a bar; but the proof in the case shows that this defendant did not withdraw, but demanded and received the final dividend, which was an overt act in the consummation of the conspiracy.

Mr. Justice McKenna, speaking for the Supreme Court of the United States in Brown v. Elliot, 225 U. S. 392, 32 Sup. Ct. 812, 56 L. Ed. 1136, approved the rule laid down by Mr. Justice Van Devanter In Louabaugh v. United States, 179 Fed. 476, 103 C. C. A. 56, which was:

"While the gravamen of the offense is conspiracy, the terms of section 5440 are such that there also must be an overt act to make the offense complete (Hyde v. Shine, 199 U. S. 62, 76 [25 Sup. Ct. 760, 50 L. Ed. 90]); and so the period of limitation must be computed from the date of the overt act, rather than the formation of the conspiracy. And where during the existence of the conspiracy there are successive overt acts the period of limitation must be computed from the date of the last of them of which there is appropriate allegation and proof, and this although some of the earlier acts may have occurred more than three years before the indictment is found."

This meets the precise point raised in this case, as the last overt act in execution of the conspiracy was the division of the balance of the fund, of which Kase was cheated, and, that act being within the two years before the indictment was found, the statute of limitations does not apply. Most of the cases cited by the appellant relate to statutes which do not require an overt act to make the conspiracy a crime.

The case of State v. Herbert (Sup.) 105 Atl. 796, is not applicable, for there the conspiracy was to prevent the due administration of the law, by false testimony in aid of a petition for divorce filed by a wife, and it was held that the conspiracy was accomplished when the false evidence was given and the cause submitted to the court for determination, and while no...