State v. Simon

• Decision Date: 02 February 1925
• Citation: 127 A. 570
• Parties: STATE v. SIMON.
• Court: New Jersey Supreme Court

127 A. 570

STATE

v. SIMON.

Supreme Court of New Jersey.

Feb. 2, 1925.

Error to Court of Quarter Sessions, Passaic County.

Aaron L. Simon was convicted of conspiring to procure insurance on the life of another by fraudulent representation, and he brings error. Reversed.

Argued October term, 1924, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

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

J. Willard De Yoe, of Paterson, for the State.

PARKER, J. The defendant was indicted for conspiring with his brother-in-law, Jacob Bloomfeld, to procure life insurance from the Girard Life Insurance Company on the life of Bloomfeld, by making certain fraudulent representations to the company with respect to the health of Bloomfeld, etc. Bloomfeld died shortly afterwards and before the indictment was found, and, consequently, it was against the defendant Simon alone.

The entire record is certified under section 136 of the Criminal Practice Act (2 Comp. St. 1910, p. 1863), and we are favored with 82 assignments of error, which are identical with 82 causes for reversal. Most of these are without substance; but our examination of the case leads us to the conclusion that there was error in the points hereinafter specified.

We find no substance in the claim that the indictment ought to have been quashed because Bloomfeld was dead, and therefore could not be indicted or tried as a defendant. We have never understood that, where two or more living persons enter into a criminal conspiracy, the survivor or survivors become immune because one of the conspirators happens to die before an indictment is found.

The admission of policies in another company which were taken out about the same time is argued, but the objections then made are inadequate to raise the points counsel undertake to argue at this time.

We think there was fatal error in the procedure relating to the rendition of the verdict. The undisputed facts are that the jury was sent out at 10:30 a. m. and remained out until 10 p. m., at which time the judge came into court and, finding the jury had not agreed, and that there was no special prospect of their agreeing, ordered them locked up for the night Every one was put out of the courtroom at that time, including the plaintiff in error, who was told to go away and come back in the morning. But about 1 a. m. the jury reported to the court officers that they had agreed, and, without sending for the plaintiff in error or his counsel or the judge, the clerk, or the assistant clerk, was sent for and came and took the verdict There is nothing to show that the court directed the clerk to take the verdict then or at any time. In the morning the defendant and his counsel appeared and found that the case had been concluded during the night. Counsel moved to set aside the verdict on...