On error to Essex County Court of Quarter Sessions.
For the plaintiff in error, Joseph Kraemer.
For the state, Joseph L. Smith, prosecutor of the pleas, and Joseph E. Conlon, assistant prosecutor.
Before Gummere, Chief Justice, and Justice Campbell.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. The plaintiff in error, Abraham Seidman, a justice of the peace of Essex county, and Gustave S. Fischman, a constable of that county, were jointly convicted upon an indictment which charged them with receiving and taking, by color of their respective offices, the sum of $10 as a fee from one Frank Puciarello, the same not being allowed by the laws of this state for performing the duties of their offices, they, the said Seidman and Fischman, then and there not being entitled to any fee from said Puciarello. The present writ of error was sued out by Seidman.
The indictment is based upon section 22 of our Crimes act. Comp. Stat., p. 1750. The provision of the statute is as follows: "Any judge, magistrate, sheriff, coroner, constable, jailer or other officer as aforesaid, who shall receive or take, by color of his office, any fee or reward whatsoever not allowed
by the laws of this state for doing his office, shall be guilty of a misdemeanor."
The first ground urged for a reversal is that the trial court erred in refusing to quash the indictment upon the ground that it charged the two defendants with separate and distinct offenses. After the verdict of guilty was rendered a motion in arrest of judgment was made upon substantially the same ground, and that motion was denied. This is also urged as a ground for reversal; and these two grounds for reversal involve the same proposition. In our view, the court did not commit error in the refusal of these motions. The indictment does not charge separate and distinct offenses. The averment therein is that the two defendants were guilty of jointly taking a single sum of money from Puciarello, and not separate sums. The situation, so far as its legal aspect is concerned, is the same as that presented in a case in which two men, in the execution of a prearranged scheme, joined in "holding up" and robbing a third person. The mere fact that the robbery is the result of a prearranged scheme, or conspiracy, does not constitute that offense, when participated in by two persons, two distinct and separable criminal acts.
This conclusion also disposes of the second ground for reversal; namely, that the trial court committed prejudicial error in permitting the prosecutor of the pleas, in his opening address to the jury, to charge that the defendants had entered into a conspiracy to cause a false criminal complaint to be made against Puciarello, and thereby extort money from him.
Counsel for plaintiff in error further contends as a ground for reversal that the trial court erred in admitting in evidence, over his objection, conversations and conduct of Fischman, not in the presence of plaintiff in error, and charging that such conversations and conduct were evidential against him. We find nothing of merit in this contention. As is stated in 16 Corp. Jur. 644, P 1283: "The general rule is that where it ...