State v. Loog

• Decision Date: 11 July 1935
• Docket Number: No. 4.,4.
• Citation: 179 A. 623
• Parties: STATE v. LOOG et al.
• Court: New Jersey Supreme Court

179 A. 623

STATE

v. LOOG et al.

No. 4.

Supreme Court of New Jersey.

July 11, 1935.

A combination is a "conspiracy" in law whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief.

Error to Court of Quarter Sessions, Monmouth County.

Roland H. Loog, Sidney L. Henry, and James J. Digney were convicted of a conspiracy to defame one Max Silverstein, and they bring error.

Affirmed.

Argued October term, 1934, before BROGAN, C. J., and PARKER and BODINE, JJ.

Jonas Tumen, of Asbury Park (J. Victor Carton, of Asbury Park, on the brief), for the State.

Lester C. Leonard, of Red Bank, for defendants.

PER CURIAM.

This writ of error brings up for review the conviction of Roland H. Loog, Sidney L. Henry, and James J. Digney, who were tried in the Monmouth County Court of Quarter Sessions upon an indictment for conspiracy to defame one Max Silverstein, a medical doctor in Asbury Park, N. J., who, at the time of these occurrences, was a councilman in that municipality. Henry and Digney were also members of the governing body and Loog was the municipal clerk.

The indictment charged these defendants with having conspired to deprive Silverstein of his good name and character and to subject him, without just cause, to public infamy and disgrace and to injure him in the practice of his profession and in his standing as a member of the governing body of Asbury Park, N. J., and to connect him with the charge of the unlawful sale of narcotics in this, that they did falsely accuse Leonard Johnson, his chauffeur, before the police magistrate of Asbury Park with the unlawful sale of heroin, which complaint was untrue and made for the unlawful purpose of connecting Dr. Silverstein with the crime of the unlawful sale of narcotics, and in furtherance of said conspiracy caused the Asbury Park Press, a newspaper of the city of Asbury Park, to publish an extra edition of the newspaper, which edition contained statements and innuendos in relation to the sale of said narcotics, which statements and innuendos were against the good name of the said Silverstein and which unlawful conspiracy was false and made for the purpose of exposing Dr. Silverstein to public infamy, etc.

There was another charge in the indictment that these same defendants caused a citizen of Monmouth county to swear to a false affidavit, implicating Dr. Silverstein with the said Johnson in the sale of narcotics.

At the end of the case, on motion of defense counsel, this charge was struck from the indictment.

There was a fourth defendant in the case, Wayne McMurray, an employee of the Asbury Park Press and who, on motion of defense counsel, had a verdict of not guilty directed by the court in his favor.

One of the main arguments of the plaintiffs in error for a reversal of their conviction is that the verdict of the jury was contrary to the weight of the evidence. Now the testimony offered for the consideration of the jury tended to show the following facts, viz., that in February, 1934, the defendants, for the purpose of defaming and otherwise injuring Dr. Silverstein, planned to apprehend Johnson, his chauffeur, allegedly for the sale of narcotics. The defendants met in a cafe and, as a result of the meeting and plan, one Jones was promised money if he would obtain morphine from Johnson. Nothing materialized from this plan. The parties defendant then made use of the services of one Fleming, a special officer, to make the purchase. Max H. Roder, a narcotics agent in the service of the United States Government, had been called into the case. He, together with the said Fleming and one Burke, who was acting captain of detectives in Asbury Park, drove to the vicinity of Dr. Silverstein's house. Fleming went in and purchased from Johnson a bottle containing a white powder, which was turned over to Roder. Several efforts were made to have the powder tested for narcotic reaction and these resulted negatively. A further test was made at a local drug store, where it was thought that a slight discoloration indicated the presence of heroin in the powder. From Roder's testimony, it would appear that at the time complaint was made against Johnson before the police magistrate in Asbury Park, he (Roder) believed there was heroin in the powder. Johnson was arrested and held for the action of the grand jury, but no bill was found against him.

The testimony of the cafe keeper, if believed, would indicate that he had participated in the preliminary plan which ended with, the arrest of Johnson, his excuse being that he had to acquiesce in the plan of the defendants (who, it will be remembered, were members of the governing body of Asbury Park) because he was anxious to obtain a liquor license for the upper part of his building, and that on numerous occasions the defendants, or one of them, in his presence and in the presence of others, clearly indicated that the conspiracy had for its object the defamation and disgrace of Dr. Silverstein which they hoped to accomplish by the arrest and prosecution of his chauffeur on the charge of dealing in narcotics.

Another witness, Mrs. Saunders, testified that two of the defendants, Loog and Digney, planned, in her house, to get a quantity of the drug from Johnson, giving her a marked $10 bill for that purpose. The delivery of the drug was to be made to the defendants, as they planned, after its purchase, through an emissary of Johnson, one Nat Jones. The defendants agreed, in her presence, that neither Jones nor Johnson would get into trouble with the authorities, but that the man they were after,...