State v. Simon

• Decision Date: 05 October 1934
• Docket Number: Nos. 3-7.,s. 3-7.
• Citation: 174 A. 867
• Parties: STATE v. SIMON et al.
• Court: New Jersey Supreme Court

174 A. 867

STATE

v. SIMON et al.

Nos. 3-7.

Supreme Court of New Jersey.

Oct. 5, 1934.

Syllabus by the Court.

1. Conspiracy to commit embracery is recognized as a crime in this state, and is not necessarily merged in the crime of embracery because of overt acts in pursuance thereof.

2. The quashing of an indictment is a discretionary act.

3. It was not error for the court to decline, when the indictment was brought on for trial at the appointed day after mature preparation, to take testimony as to alleged misconduct of the grand jury on the mere suggestion of counsel, unsupported by any fact appearing in the record, or admitted by the prosecutor, or set up in any moving affidavit.

4. Two of the defendants having pleaded guilty, and that fact being of record, it was not error for the prosecutor to mention it in opening, or for the court to refuse a mistrial on that account.

5. In general, conversations and transactions between coconspirators before the actual formation of the conspiracy, and looking toward such formation, are relevant, particularly on the question of motive.

6. By section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863, § 136), "no judgment upon any indictment shall be reversed * * * for any error except such as shall or may have prejudiced the defendant in maintaining his defense upon the merits."

7. The flight of certain of the conspirators in order to escape arrest, like other acts or declarations of conspirators after the consummation of the conspiracy, while unavailable as evidence against their fellows, is evidential against themselves.

8. The refusal of the trial court to permit the alleged reproduction by dictaphone of an alleged conversation already testified to by a witness held proper under the circumstances.

9. A defendant, in self-exculpation, having testified not merely that he did not conspire with two other defendants as charged in the indictment, but had never had any transactions of any kind with them, it was not error to permit in rebuttal evidence of certain other transactions with them.

10. The court did not err in refusing to require the prosecutor to produce an alleged written statement by one of the defendants, in the absence of any previous notice to produce it, and assuming its relevancy.

11. The court properly refused to direct an acquittal when the state rested and at the conclusion of the evidence.

12. Certain passages in the charge examined, and held not erroneous.

Error to Court of Quarter Sessions, Passaic County.

Aaron L. Simon, Irving Simon, William Conlon, Charles Decker, and Albert Durgett (impleaded with Michael La Conti and John Hickling) were convicted for conspiracy to commit embracery, and they bring error.

Affirmed.

Argued May Term 1934, before BROGAN, C. J., and PARKER and BODINE, JJ.

Minturn & Weinberger, of Newark, for plaintiffs in error.

James D. Carpenter, Jr., Asst. Atty. Gen., for the State.

PARKER, Justice.

The plaintiffs in error were convicted on an indictment for conspiracy to commit embracery; and on these writs of error they attack the indictment as insufficient on its face; and also because of alleged misconduct in the grand jury room. A number of alleged errors in rulings on evidence are also argued, as well as the refusal of the trial court to direct an acquittal, both when the state rested and at the end of the whole case. Certain alleged errors in the charge are also set up.

The case is before us both on strict writ of error and on a certificate of the entire record of proceedings at the trial under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863, § 136). There are 336 assignments of error and 328 specifications of causes for reversal. Of these latter, 322 are identical with the assignments of error. Specifications 323, 324, and 325 relate to certain rulings in the handling of the evidence, and specification 326 is that the verdict was against the weight of evidence. This last specification we deem to be wholly without merit, as we consider that the proof, as to weight and sufficiency, was ample.

Motion to quash the indictment was made before the trial court in due season as required by the Criminal Procedure Act, and a foundation thereby laid for attack on the indictment in the reviewing court in such particulars as were developed before the trial court. In the case of an indictment failing to charge a crime, our cases seem to hold that this review may be had even in the absence of a preliminary motion to quash. State v. Pisaniello, 88 N. J. Law, 262, 96 A. 89. The point is not material at this time, because motion to quash was made in due season. There were also motions later in the case to direct an acquittal on the same ground of insufficiency in the indictment, and also in arrest of judgment on the same ground, though this latter seems not to be argued at this time. In any event, the sufficiency of the indictment is fairly before us. It is rather too long to reproduce in full. It charges that on May 8, 1933, at, etc., the seven defendants did willfully, etc., combine, unite, confederate, conspire, agree, and bind themselves by agreement to commit (a) the crime of embracery; (b) and unlawfully to attempt to corrupt and influence a juror and jurors; (c) and to willfully and unlawfully corrupt and influence a juror and jurors; (d) to willfully incline such juror and jurors to be more favorable to the one side than to the other in a certain civil suit pending in this court for the county of Passaic; (e) and in a certain civil suit, etc., by willful and unlawful promises, etc., to obtain a verdict in favor of the plaintiff represented by the two Simons as counsel and attorneys; (f) and to attempt to instruct a juror and jurors beforehand outside of the court and not at the trial, and not by the strength of the evidence, arguments of counsel, and charge of the court in said suit; (g) and to hinder the lawful trial of said suit; (h) and to embrace and attempt to embrace and influence the minds of said jurors at the April term, 1933, of said court, to be more favorable to the plaintiff in a cause wherein Edward Veit was plaintiff and Fred L. Miller and William Werner were defendants. The indictment then goes on to relate certain overt acts alleged to have been committed in pursuance of the conspiracy. It requires nearly four pages of the printed case to detail these various acts, and it is unnecessary to repeat them here. Doubtless this full recital was embodied in the indictment in view of our decisions that overt acts must be averred therein. State v. Norton, 23 N. J. Law, 33, at page 48; State v. Barr (N. J. Sup.) 40 A. 772, not reported in State report; State v. Lustberg, 164 A. 703, 11 N. J. Misc. 51, 54; State v. Hemmendinger, 100 N. J. Law, 234, 126 A. 544, affirmed in 101 N. J. Law, 417, 128 A. 922.

In cases of conspiracy to commit murder and several other crimes, where an overt act is by the statute unnecessary as an element in the conspiracy, none need be averred in the indictment. State v. Sabato, 91 N. J. Law, 370, 103 A. 807.

Before taking up the argument upon the legal sufficiency of this indictment, it may be well to quote our statute relating to the crime of embracery, sections 16 and 17 of the Crimes Act (2 Comp. St 1910, p. 1748, §§ 16, 17), which is carefully followed by the language of the indictment.

Section 16 reads: "Embracery and all attempts to corrupt or influence a jury or any juror, or any way to incline such jury or any juror to be more favorable to the one side than to the other by promises, persuasions, entreaties, threats, letters, money, entertainments or other sinister means; all indirect, unfair and fraudulent practices, arts and contrivances to obtain a verdict, and all attempts to instruct a jury or juror beforehand, at any place or time, or in any manner or way, except only in open court at the trial of the cause, by the strength of the evidence, the arguments of the parties or their counsel, or the opinion or charge of the court, shall be misdemeanors, and punished as are misdemeanors under this act"

Section 17 is as follows: "Any juror who shall take money, goods, chattels or other reward of the one party or the other, or be as aforesaid embraced, shall be guilty of a misdemeanor, and punished accordingly; and be forever disqualified from acting as a juror in this state."

As to this latter section, the indictment avers that the defendants Lu Conti and Hickling, being jurors, received $50 apiece for joining in the corrupt verdict.

The somewhat extended argument that the indictment is insufficient on its face may be condensed into the two following propositions which we take from the brief of the plaintiffs in error:

(1) That the crime of conspiracy to commit embracery by jurors does not exist in New Jersey, and that therefore the other named defendants (La Conti and Hickling) could under no circumstances be guilty of having conspired with the jurors to commit such a crime.

(2) "If conspiracy requires an overt act, as does the crime of embracery, clearly the moment the overt act springs into existence we have the completed offense of embracery, and no opportunity exists, therefore, for the commission of the crime of conspiracy to commit embracery."

We are unable to see any merit in these propositions. As to the first: If A, an outsider, attempts improperly to influence B, a juror, to give a corrupt verdict, A is guilty of embracery whether or not the attempt be successful. If B, being so influenced, improperly influences juror C, it would seem that B is likewise guilty of embracery, though both were jurors together. If A, an outsider, and B, a juror, influenced by A, agree to influence C improperly, A and B are guilty of conspiracy to commit embracery. So far as relates to La Conti and Hickling, it may fairly be said that they are by the indictment charged with violation of section 17, viz., receiving money for their votes and...