State v. Vanderhave

• Citation: 47 N.J.Super. 483,136 A.2d 296
• Decision Date: 25 November 1957
• Docket Number: No. A--589,A--589
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Nicholas VANDERHAVE et al., Defendants, and Samuel GIARDINA, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 483

47 N.J.Super. 483

136 A.2d 296

STATE of New Jersey, Plaintiff-Respondent, v. Nicholas VANDERHAVE et al., Defendants and Samuel GIARDINA, Defendant-Appellant.

No. A--589.

Superior Court of New Jersey Appellate Division.

Argued Oct. 14, 1957.

Decided Nov. 25, 1957.

Nicholas A. Carella, Lyndhurst, argued the cause for appellant.

Archibald Kreiger, Deputy Atty. Gen., argued the cause for respondent (Charles S. Joelson, Deputy Atty. Gen., Acting Prosecutor of Passaic County, attorney).

Before Judges, CLAPP, JAYNE and HUGHES.

The opinion of the court was delivered by

HUGHES, J.A.D.

Upon trial of an indictment charging them with conspiracy to steal in violation of N.J.S. 2A:98--1(a), N.J.S.A. and N.J.S. 2A:119--2(a), N.J.S.A., the defendants Vanderhave, Vachon and Rosen entered pleas of Non vult in the course thereof, the jury convicted Hollmond and Giardina, and the latter appeals. Of the two points addressed to our attention, the first involves the Quantum of evidence on the issue of the asserted impropriety of denial of the motion for acquittal at the end of the State's case, and the second suggests error of substance in the admission of a specific item of evidence.

As to the right of appellant to the trial dismissal sought, we are able to glean from the unduly abbreviated record presented by him (which would justify our ignoring of this point, R.R. 1:7--1(f); State v. McFadden, 32 N.J Super. 258, 108 A.2d 204 (App.Div.1954); State v. Wilkerson, 38 N.J.Super. 166, 118 A.2d 414 (App.Div.1955)) a skeletal understanding of the evidence sufficient for decision. The victim of the thefts encompassed by the unlawful cabal in issue was the Pantasote Leather Company, which is located in Passaic. Vachon and Vanderhave were employees thereof, the latter a receiving and distribution clerk whose function as storekeeper of the company's inventory enabled him, with the assistance of Vachon, to withdraw, by false requisitions and otherwise, pigments, chemicals and plastic material, of some value, for delivery to those corruptly linked with him. Hollmond was a trucker who transported goods in regular course to and from Pantasote, and his part in the criminal venture was to function as the medium of transshipment of the booty. Rosen and Giardina received the goods, and it was that status in the conspiratorial plan that underlies appellant's insistence that as the receiver of such stolen goods (a substantive offense implying separate responsibility to the law. N.J.S. 2A:139--1, N.J.S.A.), he could not also justly be deemed punishable for the thefts thereof. State v. Krupin, 100 N.J.L. 7, 125 A. 97 (Sup.Ct.1924), affirmed 101 N.J.L. 228, 127 A. 270 (E. & A.1925); State v. Fox, 12 N.J.Super. 132, 79 A.2d 76 (App.Div.1951); State v. Shelbrick, 33 N.J.Super. 7, 109 A.2d 17 (App.Div.1954).

It is true that the receiver of stolen goods and the thief are not accomplices (State v. Rachman, 68 N.J.L. 120, 53 A 1046 (Sup.Ct.1902); State v. Hoffman, 90 N.J.L. 338, 100 A. 160 (E. & A.1917)), the receiver being guilty of a distinct substantive offense not implying a relationship as accessory to the antecedent theft. The larceny and receiving being offenses of separate and inconsistent nature, there results the legal concept that the receiver must be someone other than the thief, or as our court has stated, '* * * that a person cannot be guilty of larceny and receiving of the same property.' 2 Burdick, Law of Crime (1946), § 608, p. 436; State v. Shelbrick, supra; State v. Rose, 41 N.J.Super. 434, 125 A.2d 351 (App.Div.1956). But the gist of the offense of conspiracy consists in the unlawful confederation, and not in the overt acts designed to carry it into effect. A conspiracy to commit an offense is a separate and distinct offense from the substantive crime planned and consummated. State v. Chevencek, 127 N.J.L. 476, 23 A.2d 176 (Sup.Ct.1941); State v. Oats, 32 N.J.Super. 435, 108 A.2d 641 (App.Div.1954). Recently, a searching scrutiny by this court of the record of a conspiracy conviction (although on another point) in a case similar to that Sub judice, in which the fruits of the theft contemplated by the evil confederation came into the possession of one of the conspirators (who would undoubtedly also have been classifiable substantively, as a receiver thereof), evoked no comment of significance thereon from the court. State v. Scala, 38 N.J.Super. 568, 120 A.2d 128 (App.Div.1956). The conspiratorial role of appellant, alleged and proven by the State, transcended the function of a receiver of stolen goods, even one with foreknowledge of the intended theft. The conspiracy plan here was one of continuity; the primary thief and the appellant agreed upon details of the unlawful design and its Modus operandi; it is not an exaggeration to say that the proof was susceptible of a finding that appellant had participated in supervising the detail, particularly the timing, of certain larcenies, and showed a selectivity in pointing out the type and quantity of material which should be stolen for his use, complaining at one time that drums of stolen material were not filled to his liking; Vanderhave and appellant agreed upon the elimination of another receiver, one Sparta, to whom some of the goods then were being sold, agreeing on a division of the additional profits thereby realized; and in other respects these conspirators were shown to have been En rapport, not in the naked buy and sell relationship of a thief and his receiver, but in the clandestine and consultative concert of planned action which is the hallmark of the criminal conspiracy. The proofs were adequate to sustain the conviction therefor. Cf. State v. Salimone, 19 N.J.Super. 600, 89 A.2d 56 (App.Div.1952); State v. Goodman, 9 N.J. 569, 89 A.2d 243 (1952); State v. Carbone, 10 N.J. 329, 91 A.2d 571 (1952); State v. Yedwab, 43 N.J.Super. 367, 128 A.2d 711 (App.Div.1957).

Vanderhave, the unfaithful steward, was a trial witness for the State. Partially cumulative to his narration of guilty conversations with appellant, was the testimony of one Mrs. Kolano, a switchboard operator at the Pantasote establishment. Her suspicions having been attracted to furtive telephone conversations of Vanderhave with persons outside the plant, passing through the common company switchboard, she listened to such conversations without the knowledge of the participants. Reporting these matters to one in authority, she continued to eavesdrop, and testified at the trial in support of Vanderhave's version of telephone conversations which he had had with appellant.

The second point of the appeal deals with the legitimacy as evidence of such matter, the appellant contending that under the 'wire tap' statute, N.J.S. 2A:146--1, N.J.S.A. these conversations were improperly admitted into evidence. That statute reads as follows:

'2A:146--1. Tapping telegraph or telephone lines; disclosing messages

'Any person who willfully and maliciously:

'a. Cuts, breaks, taps or makes any connection with a telegraph or telephone line, wire, cable or instrument belonging to any other person; or

'b. Reads, takes, copies, makes use of, discloses, publishes or testifies concerning a message, communication or report intended for any other person and passing over any such telegraph or telephone line, wire or cable in this state; or

'c. Uses any apparatus unlawfully to do any of such acts--

'Is guilty of a misdemeanor.' (L.1930, c. 215, § 1, p. 987.)

The sworn identification of appellant's voice, and the reference to his telephone number, was sufficient to support this evidence (State v. Dillingham, 134 N.J.L. 229, 46 A.2d 813 (E. & A.1946); cf. State v. O'Donnell, 8 N.J.Super. 13, 73 A.2d 207 (App.Div.1950); State v. Carrano, 27 N.J.Super. 382, 99 A.2d 426 (App.Div.1953)), and since the utterances of the conspirators related to the Corpus of the conspiracy object (State v. Yedwab, supra; State v. Sudol, 43 N.J.Super. 481, 129 A.2d 29 (App.Div.1957)), the evidence was substantively admissible. Appellant insists, however, on the postulate that the overhearing of these conversations was within the ambit of the statute, that their divulgence, even in the respectable aura of testimony thereof in a jurisdictional court, would amount to a misdemeanor under the statute, and, accordingly, that such evidence was wrongfully admitted. Vide, dissenting opinion in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); and Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937); Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298 (1939); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); cf. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Wolf v. People of the State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); OnLee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952); Salsburg v. State of Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954); Irvine v. People of the State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954).

We shall pass the question of the propriety of admitting this evidence even though, Arguendo, unlawfully obtained, because evidential Per se, under our longstanding rule permitting evidence of that nature. State v. MacQueen, 69 N.J.L. 522, 55 A. 1006 (Sup.Ct.1903); State v. Merra, 103 N.J.L. 361, 137 A. 575 (E. & A.1927); State v. Pinsky, 6 N.J.Super. 90, 70 A.2d 182 (App.Div.1950); State v. Alexander, 7 N.J. 585, 83 A.2d 441 (1951); cf. Application of Berlin, 19 N.J. 522, 117 A.2d 610 (1955); but cf. Eleuteri v. Richman, 47 N.J.Super. 1, 135 A.2d 191 (App.Div.1957). We think, too, that discussion of the moral aspects of wire tapping would here be an act of supererogation (Olmstead v. United States, supra; 'Wiretapping--A Dirty Business,' 79 N.J.L.J. 412 (Oct. 1956)), even in...