State v. Lustberg, s. 1, 2, 3.

• Decision Date: 17 January 1933
• Docket Number: Nos. 1, 2, 3.,s. 1, 2, 3.
• Citation: 164 A. 703
• Parties: STATE v. LUSTBERG et al.
• Court: New Jersey Supreme Court

164 A. 703

STATE

v. LUSTBERG et al.

Nos. 1, 2, 3.

Supreme Court of New Jersey.

Jan. 17, 1933.

Error to Court of Quarter Sessions, Passaic County.

Samuel R. Lustberg and others were convicted of conspiracy, and they bring error. Affirmed.

Argued October term, 1932, before GUMMERE, C. J., and BODINE and DONGES, JJ.

Ward & McGinnis, of Paterson, and Weinberger & Weinberger, of Passaic, for plaintiffs in error.

Nathaniel Kent, of Paterson, for defendant in error.

PER CURIAM.

The plaintiffs in error were convicted in the Passaic county court of quarter sessions upon an indictment charging conspiracy.

The state alleged that on January 9, 1932, the defendant Lustberg, who is a physician, agreed with Frank Stamato and John Wozniak to pretend that an automobile owned by Anthony Stamato and driven by Dominick Duva struck and injured Wozniak and David Goldis; that Lustberg, Wozniak, and Frank Stamato drove to the scene of the pretended accident; that Frank Stamato disclosed the scheme to Anthony Stamato who joined the conspiracy; that thereafter Duva, Goldis, and the defendant Selig Baker joined the conspiracy, each of the defendants agreeing to perform his part in carrying out the conspiracy; that Lustberg, to give color to the alleged accident, inflicted injuries to Wozniak; that Duva reported to the Lodi police that he had been involved in an accident; Duva and Frank Stamato reported to the agent of the insurance company covering Anthony Stamato's automobile that, it had been involved in an accident; that Lustberg engaged counsel to represent the alleged injured parties; and that the alleged injured parties were examined by a physician for the insurance company.

The state alleged that no accident occurred by collision of Wozniak and Goldis and Stamato's automobile; that they sustained no injuries in such an accident; that the parties all knew of the falsity of the claims; and that the parties conspired to press false claims of the persons pretended to be injured for the purpose of defrauding the insurance company.

The defendant Lustberg writes down 150 assignments of error, and the defendants Goldis and Baker write down 112 assignments of error. It was stipulated that the assignments of error filed by Lustberg should also be considered as specifications of causes for reversal.

The appeals were argued together, and, so far as the points raised apply to the appeals of the three plaintiffs-inerror, they are to be considered on behalf of each of them.

On behalf of Lustberg, a petition was filed in the quarter sessions praying that court to send the record to the District Court of the United States for the District of New Jersey.

The judge of the state court held, after due examination, Bilecki v. Erie Railroad Co., 101 N. J. Law, 17, 127 A. 328, that the petition was not properly filed, and that it did not set out grounds for the removal of the record to the District Court of the United States, and declined to order the removal.

We think there was no error in so ruling. Ex parte Wells, Fed. Cas. No. 17,386; Kentucky v. Powers. 201 U. S. 1, 26 S. Ct. 387, 50 L. Ed. 633, 5 Ann. Cas. 692.

On behalf of the defendant Lustberg, motion was made to quash the indictment on the ground that it was defective and insufficient in law.

The indictment was found under section 37 of the Crimes Act (2 Comp. St. 1910, p. 1757), which, inter alia, provides: "Any two or more persons who shall combine, unite, confederate, conspire or bind themselves by oath, covenant, agreement or other alliance to commit any crime, * * * or falsely to move and maintan any suit, or to cheat and defraud any person of any property by any means which are in themselves criminal, or to cheat and defraud any person of any property by any means, which, if executed, would amount to a cheat, or to obtain money by false pretences, * * * shall, on conviction, be deemed guilty of a conspiracy," etc.

The offense charged in this case is not one of those that is indictable under the statute on making the agreement, but is one that requires an overt act to make the conspiracy an indictable offense.

In State v. Hemmendinger, 100 N. J. Law, 234, 126 A. 544, 546, affirmed 101 N. J. Law, 417,128 A. 922, Mr. Justice Kalisch said: "The legal principles governing the crime of conspiracy are too familiar to need citation of authorities for their support. It is well settled that the unlawful agreement is the gist of the conspiracy. The unlawful agreement, however, does not become the basis of an indictable offense till one of the parties to such agreement takes a step in furtherance of the execution of it. It is therefore essential, where there is a charge of conspiracy which requires an overt act to be done in execution of it, in order to make the conspiracy indictable, that such overt act should be set out in the indictment. It is not necessary to constitute the offense that it should appear that the object of the conspiracy was attained; a step taken in that direction by one of the parties to the agreement is sufficient. An indictable conspiracy is in its nature an attempt to commit an offense."

The indictment charges that the defendant Lustberg, with others, conspired to assert the happening of an accident, which never occurred, the injury thereby of two persons, the giving of notice to the insurance company, the employment of attorneys to begin suit therefor, the infliction of injuries to bolster the claim, the examination of the pretended injured parties by the representative of the insurance company, the knowledge of the spurlousness of the claims—all for the purpose of fraudulently obtaining money from the insurance company. Before the fruition of the fraudulent scheme, one of the conspirators informed the authorities and made success impossible. Many overt acts were: charged in the indictment and established by testimony at the trial.

The fact that several offenses may be alleged to have been committed in furtherance of the conspiracy does not render it duplicitous and bad.

We conclude that the defendant Lustberg was fully and definitely informed of the nature and character of the offense charged, and that the indictment was sufficient.

For the defendants Goldis and Baker it is argued that the indictment was not sufficient to charge them with conspiracy.

The record fails to disclose that any motion was made on behalf of these defendants to quash the indictment, or other objection made to the sufficiency of the indictment, before the jury was sworn, as required by the statute. Criminal Procedure Act, 2 Comp. St. 1910, p. 1834, § 44. A motion was made on behalf of the defendant Lustberg to quash the indictment, but...