State v. Mcfeely

• Decision Date: 29 April 1947
• Citation: 52 A.2d 823
• Parties: STATE v. McFEELY et al.
• Court: New Jersey County Court

52 A.2d 823

STATE

v.McFEELY et al.

Court of Quarter Sessions of New Jersey, Hudson County.

April 29, 1947.

Bernard N. McFeely and others were indicted for conspiracy at common law. On motion by defendants to quash the indictment.

Motion to quash denied.

Horace K. Roberson, Pros. of the Pleas, of Bayonne, and Simon L. Fisch, Deputy Atty. Gen., for the State.

Edward J. O'Mara, of Jersey City, for defendants.

DREWEN, Judge.

This is a motion to quash an indictment for conspiracy at common law. (It is stipulated by the State that the indictment is not within the terms of our conspiracy statute, Rev.Stat. 2:119-1, N.J.S.A., but is intended to be within those of Rev.Stat. 2:103-1, N.J.S.A.)

The defendants are government officers of the city of Hoboken. They include the Mayor, the Director and Deputy Director of Public Safety, the Chief and Deputy Chief of Police, and divers superior officers of the city's Department of Police. The persons at whom the confederated purpose is charged to have been directed are described as patrolmen of the city's police, seventeen in number. The design of the conspiracy is charged, with all the necessary allegations of corrupt and evil purpose, to have been the coerced dismissal or resignation of the named patrolmen from their respective positions as policemen of the city. The means by which the stated purpose was planned to be accomplished are described and alleged as, among other things, unwarranted harassment, the making of false and groundless departmental charges, and various unjustified intimidations having reference to impoverishment, civil injury and other evil prospects. Numerous overt acts are alleged.

That the conspiracy statute, supra, does not displace conspiracy at common law would appear to be entirely settled. State v. Norton, 23 N.J.L. 33; State v. Donaldson, 32 N.J.L. 151, 90 Am.Dec. 649; State v. Loog, 13 N.J.M. 536, 179 A. 623, affirmed per curiam sub. nom. State v. Henry, 117 N.J.L. 442, 188 A. 918; State v. Continental Purchasing Co., 119 N.J.L. 257, 195 A. 827, affirmed per curiam, 121 N.J.L. 76, 1 A.2d 377; State v. Ellenstein, 121 N.J.L. 304, 2 A.2d 454.

The argument to quash concedes, in the survey of juristic development which it presents, that the earliest principles of common law conspiracy have been progressively amplified and extended; but it denies emphatically that the result of this is to include a charge like that made by the present indictment, which throughout their discussion is dealt with by defendants as a charge of conspiracy to do no more than civil injury to individuals. Whether in every case such a purpose must be adjudged insufficient as an element of criminal conspiracy at common law is beside the present question, but it is the court's opinion that the indicated view of the charge made by this indictment is altogether too narrow. In the survey of development already mentioned authorities are cited by defendants as declaring the limits to which the development has gone. Out of these authorities we shall consider from among the objects stated as rendering a confederated purpose indictable, those which have a bearing on the controversy. (These, of course, are all in addition to combinations to commit crime and combinations having designs implemented by criminal means.) The indictable instances thus shown are those in which the purpose is to defraud an individual by fraudulent and indirect devices; or to prejudice the public or the government; or to use improper means to injure another's reputation; or to impoverish another in his trade or profession. Wharton's Crim.Law, 486 et seq. The question is, do the principles just stated, or the pronouncements of our own courts (infra), or both together, embrace the conspired purpose in the charge before us?

The argument of attack is made as if we had only to return to the orthodox by restoring the purity of texts. But strictly, there is no orthodox. The problem is that of rightly tracing the evolving course of common law on the subject in hand, from which it follows that our primary concern is to ascertain the phase to which the development of doctrine thus far has brought us rather than the exact terms of the primal doctrine itself. Some of the very texts defendants cite in their own support carry implicit evidence of the pressure of expanding change against which they were written.

The learned brief submitted for the motion takes us back through far away centuries and into many an ancient book, but it will serve no useful purpose now to linger among the antiquities, and for a reason presently to appear.

There are plenty of judicial pronouncements that are in contemporaneous and direct conflict with what defendants urge. These are pronouncements by our own appellate courts. By them it is laid down that a conspiracy is indictable at common law where its intended result is the injury or oppression of individuals; or where the public interest is injuriously involved; or where the design is to cause civil injury, or unjustly to subject individuals to the power of the confederates. State v. Norton, 23 N.J.L. 33; State v. Donaldson, 32 N.J.L. 151, 90 Am.Dec. 649; State v. Cole, 39 N.J.L. 324; State v. Bienstock, 78 N.J.L. 256, 73 A. 530; State v. Continental Purchasing Co., 119 N.J.L. 257, 195 A. 827, affirmed 121 N.J.L. 76, 1 A.2d 377.

Now defendants admit all of these pronouncements by our courts, but they would discount them in toto as obiter dicta; and in those instances where the precise adjudication is at variance with the attack now made, the decisions are said to be actually though not ostensibly in cases of statutory rather than common law conspiracy, or they are said to be without precedent and to be unsupported by the authorities they rely on. Whether the cases referred to are for the reasons stated truly without force as precedent will not, in the deciding of this issue, be called in question; the decisions themselves stand and are binding here. With regard to the so-called obiter dicta, an observation must be made. In an inquiry like this, obiter dicta do evince the thoughts and appraisals by which the courts expressing them are guided to their conclusion, and though they may not stand in close relation to the exact issue, they do have their part, nevertheless, in determining it and must be taken as disclosing an aspect of repugnance between life and the law as the same is contemplated by those whose duty it is judicially to declare the principle of accommodation revealed thereby. Not the sources of the common law, only its evidence is found in decisions and in texts; and the two are not always convertible terms. Heise v. Earle, 134 N.J.Eq. 393, at page 402, 35 A.2d 880. Also, the obiter dicta in question, if such they be, have been so repeatedly approved by our appellate courts as to command present adherence.

In overruling a long established principle of common law and supplementing it with one more consonant with modern considerations and requirement, our Court of Errors and Appeals has made this observation: ‘Great progress has been...