State v. Guida

• Decision Date: 04 June 1937
• Docket Number: No. 3.,3.
• Citation: 192 A. 445,118 N.J.Law 289
• Parties: STATE v. GUIDA.
• Court: New Jersey Supreme Court

192 A. 445

118 N.J.Law 289

STATE

v. GUIDA.

No. 3.

Supreme Court of New Jersey.

June 4, 1937.

Error to Court of Quarter Sessions, Essex County.

Nicholas Guida was convicted of violating the Small Loan Act, and he brings error.

Affirmed.

Argued October term, 1936, before BROGAN, C. J, and CASE and PERSKIE, JJ.

Anthony A. Calandra and George S. Silzer, both of Newark, for plaintiff in error. William A. Wachenfeld and Joseph E. Conlon, both of Newark, for the State.

PERSKIE, Justice.

Plaintiff in error was tried and convicted in the Essex county court of quarter sessions upon an indictment which charged him and Joseph Silano with having violated what is known as the "Small Loan Act" (chapter 62, P.L. 1932, p. 94 [N.J.St.Annual 1932,§ 35—22 et seq.]). The charge was that on June 15, 1934, and on other days thereafter up and until the day the indictment was presented, etc. (November 27, 1935), the defendants, Joseph Silano and Nicholas Guida, at Newark, N. J., "did unlawfully engage in the business of making loans of money * * * in the amount of * * * three hundred dollars and less and did charge, contract for, and receive a greater rate of interest, * * * therefor than six percentum annually, without having first obtained a license from the Commissioner of Banking and Insurance of the State of New Jersey, contrary to the form of the statute in such case made and provided * * *."

After the jury was sworn and prior to the opening address by the prosecutor of the pleas, Silano retracted his former plea of not guilty and entered a plea of nolo contendere, which plea was accepted. The trial continued as against Guida. He was found guilty, and the sentence of the court was that he be committed to the State Prison at hard labor, for a minimum term of two and one half years and for a maximum term of three years. It is the judgment based upon that conviction and sentence that is here challenged. The entire record is certified and is before us upon exceptions and reasons for reversal.

Sixty-three assignments of error and sixty-five reasons for reversal are set down for the plaintiff in error; twenty-one are argued. Few of those argued conform to the oft-declared and well-established applicable practice. They fail to point out with "sufficient precision" (State v. Blaine, 104 N.J.Law, 325, 140 A. 566), or with "particularity" (McKenna v. Reade, 105 N. J.Law, 408, 412, 144 A. 812), the judicial action alleged to be erroneous, complained of, and sought to be reviewed. To refer to either an assignment of error or to a reason for reversal only by number, as is the fact here, without stating the contents thereof, is a practice which has been held to be "irregular and insufficient" (State v. Blaine, supra, 104 N.J.Law, 325, at page 329, 140 A. 566, 567), and "pernicious" (McKenna v. Reade, supra, 105 N.J.Law, 408, at page 414, 144 A. 812).

At all events, we have carefully considered all the points argued and are of the opinion that none is well founded. But a few merit discussion.

First. Did the court err in refusing to direct an acquittal at the end of the state's case or at the end of the entire case? We think not.

It was open to the jury to find, if they so chose, that Silano and plaintiff in error by mutual arrangement undertook to and did engage in the business of making loans as charged; that Silano procured the borrowers and Guida advanced the moneys; that both pursued and attained, with full knowledge of all the facts, the same unlawful objective charged; that they acted in concert; that Guida was bound by the words and deeds of his coconspirator and wrongdoer; that Silano by his plea of nolo contendere admitted his guilt; that the several loans made to Fitzsimmons, O'Sullivan, and Robinson were made as charged in the indictment; that the rate of interest charged was more than 6 per centum annually. It will serve no useful purpose to detail the unconscionable and illegal rate of interest charged on these loans. We think that the proofs fully support and justify the jury's verdict finding defendant guilty beyond a reasonable doubt. And what has already been written likewise applies to the denial of the motion made in arrest of judgment in support of which were urged the same grounds that were advanced in support of the motions for an acquittal. To set aside a verdict as' against the weight of the evidence, it must be made to appear that the verdict gives rise to the clear inference that it was the result of mistake, passion, prejudice, or partiality. State v. Treficanto, 106 N.J.Law, 344, 146 A. 313; State v. Lederman, 112 N.J.Law, 366, 370, 170 A. 652.

Second. Did the prosecutor of the pleas commit prejudicial error in his opening remarks to the jury? We think not. The prosecutor of the pleas said, among other things, that "the facts which the state will disclose in this case is the existence, as far as these defendants are concerned, of a plain open and shut usury racket." The proofs disclosed fully support that statement. Suffice it, not by way of limitation but for the purpose of illustration, to observe Robinson's testimony. He testified that he borrowed $150 and was to pay $30 a week interest, and although he paid $270 in nine weeks, yet he still remained owing the principal debt of $150. As to the latitude allowed the prosecutor of the pleas, in his address to the jury, and commenting upon evidence, compare State v. Lang, 108 N.J.Law, 98, 154 A. 864; State v. Hauptmann, 115 N.J.Law, 412, 180 A. 809; State v. Walter, 186 A. 429, 14 N.J.Misc. 547, affirmed 117 N.J.Law, 547, 189 A. 621.

Third. It is argued that since no conspiracy or concert of action between Silano and Guida was charged in the indictment, no acts or words by Silano in connection with the several loans made as aforesaid involving and connecting Guida (those with which Guida was not so connected, were stricken), in his absence, were admissible. The indictment does not charge separate and distinct offenses by Silano and Guida. It charged a joint offense.

In State v. Seidman, 107 N.J.Law, 204, 152 A. 861, 862, Abraham Seidman, a justice of the peace, and Gustave S. Fischman, a constable, were jointly convicted upon an indictment which charged them with illegally taking by color of their respective offices, the sum of $10, as a fee, from one Frank Puciarello. In that case it was contended that the indictment charged the two defendants with separate and distinct offenses. And there, as here, a motion in arrest of judgment was made and denied. Chief Justice Gummere, writing the opinion for the court, said:

"In our view, the court did not commit error in the refusal of these motions. The indictment does not charge separate and distinct offenses. The averment therein is that the two defendants were guilty of jointly taking a single sum of money from Puciarello, and not separate sums. The situation, so far as its legal aspect is concerned, is the same as that presented in a case in which two men, in the execution of a prearranged scheme, joined in 'holding up' and robbing a third person. The mere fact that the robbery is the result of a prearranged scheme, or conspiracy, does not constitute that offense, when participated in by two persons, two distinct and separable criminal acts.

"This conclusion also disposes of the second ground for reversal; namely, that the trial court committed prejudicial error in permitting the prosecutor of the pleas, in his opening address to the jury, to charge that the defendants had entered into a conspiracy to cause a false criminal complaint to be made against Puciarello, and thereby extort money from him.

"Counsel for plaintiff in error further contends as a ground for reversal that the trial court erred in admitting in evidence, over his objection, conversations and conduct of Fischman, not in the presence of plaintiff in error, and charging that such conversations and conduct were evidential against him. We find nothing of merit in this contention. As is stated in Corpus Juris, vol. 16, p. 644, par. 1283: 'The general rule is that where it appears that two or more persons have conspired to commit an offense, everything said, done, or written by one of them during the existence of the conspiracy, and in the execution or furtherance of the common purpose, is admissible in evidence against the others.'"

Our Court of Errors and Appeals affirmed that judgment, State v. Fischman, 108 N.J.Law, 550, 156 A. 678. Cf. State v. Neary, 106 N.J.Law, 104, 148 A. 608.

In 16 Corpus Juris, 647, § 1284, it is said: "The generally accepted view is that it is not necessary that the indictment or information should charge a conspiracy, but, where, although no conspiracy is charged, it is made to appear that...