On error to the Passaic County Court of Quarter Sessions.
For the plaintiffs in error, Minturn & Weinberger.
For the defendant in error, James D. Carpenter, Jr., assistant attorney-general.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. 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. There are three hundred and thirty-six assignments of error and three hundred and twenty-eight specifications of causes for reversal. Of these latter, three hundred and twenty-two 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 [113 NJL Page 523] 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.L. 262. 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 8th, 1933, at, &c., the seven defendants did willfully, &c., 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, &c., by willful and unlawful promises, &c., 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.L. 33 (at p. 48); State v. Barr, 40 A. 772; State v. Lustberg, 11 N.J. Mis. R. 51, 54; 164 A. 703; State v. Hemmindinger, 100 N.J.L. 234; affirmed, 101 Id. 417.
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.L. 370.
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 (Comp. Stat., p. 1748), which is carefully followed by the language of the indictment.
"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 before hand, 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 La 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:
I. 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.
II. "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 influence in the jury room. In any event, they both pleaded guilty to the indictment and are not before us at this time. So far as relates to their participation with the other defendants in a scheme to influence the rest of the jury, we are clear that the indictment expressly charges a conspiracy to that end as against the plaintiffs in error.
The second proposition seems to raise the question of merger of the conspiracy in the completed act. As to this it is sufficient to say that the doctrine of merger is discredited in this state as well as in this country generally. 1 Bish. New Cr. L. § 814; Johnson v. State, 29 N.J.L. 453; State v. Preston (Judge Dixon, in the Passaic Oyer and Terminer), 1 N.J.L.J. 117.
We conclude that the attacks on the face of the indictment are without substance.
The next main point is that the indictment should have been quashed because of certain extraneous matters alleged
by counsel for the first time when the case was moved, and of which there was no preliminary proof, viz.:
(a), (b) and (c) Because of the presence in the grand jury room of alleged unauthorized persons while testimony was being taken.
(d) Because the oaths to witnesses before the grand jury were not administered as required by law.
(e) Because the indictments resulted from bias, &c.
(f) Because the indictments were fraudulent and made for conspiracy through bias, &c., so as to increase the penalty.
(g) And that the court erred in denying plaintiffs in error the right to take testimony in support of the motion made on the foregoing grounds.
As to all but the last, the general rule is that the quashing vel non of an indictment is discretionary, and will not be reviewed either on strict writ of error (State v. Dayton, 23 N.J.L. 49, 57, 58), nor under section 136 of the Criminal Procedure act, because not occurring at the trial. State v. Pisaniello, supra; State v. Riggs, 92 Id. 575. As to the refusal of the court to take testimony in regard to matters orally alleged by counsel, there are two answers. The first is that whatever the testimony might have shown, the action of the court would still remain discretionary. The second is that the trial court was under no duty to suspend the trial, which had been moved after mature preparation, and go into an investigation, at that juncture, of the conduct of the grand jury, in the absence of anything by way of facts appearing on the record, or admission by the state, or sworn affidavit of the alleged irregularities. In short, there was no "verification of the motion." 31 C.J. 814. The rule is general, that one or more of the above classes of proof must be before the court. 42 C.J. 493; 19 R.C.L. ...