On appeal from the Supreme Court, whose opinion is reported in 113 N.J.L. 330.
For the State of New Jersey, James D. Carpenter, Jr.
For the plaintiff in error James Profita, Minturn & Weinberger; for the plaintiff in error Harry Kuller, Chandless, Weller & Selser; for the plaintiffs in error Frank Failla and John Cammariato, John W. Griggs.
The opinion of the court was delivered by
CASE, J. James Profita, Frank Failla, John Cammariato and Harry Kuller were convicted by a jury in the Passaic Quarter Sessions of the crime of conspiracy. They went by strict writ of error and bill of exceptions to the Supreme Court, and from the judgment of affirmance therein now appeal to us.
They first present that there was no plea or issue to be determined by the jury, that consequently each conviction was a nullity and that the trial court erred in refusing to
arrest judgment when so moved. The point is technical. Outside of its technicality it has no merit.
The defendants had made their pleas of not guilty. As the trial was about to begin their counsel sought, and by grace of the court were permitted, to make designated motions in their behalf. The motions should have been made before the taking of the pleas, and to relieve the defendants of the embarrassment in which they found themselves they were allowed to withdraw their pleas for the precise and limited purpose of making those motions. The motions were heard and denied. The defendants then went to their trial in all ways as on the issue which they themselves had framed. Had they made contemporaneous objection, the only result would have been a formal reinstatement of the pleas. It is a just inference that the defendants, the prosecution and the court considered the overruling of the motions as such a reinstatement. People v. Afton (Ill.), 101 N.E. Rep. 557; People v. Brodner, 107 N.Y. 1; 13 N.E. Rep. 87. Under the circumstances it is to be said here, as was said in Garland v. Washington, 232 U.S. 642; 58 L. Ed. 772, that the reinstatement of the pleas "would have been a wholly unimportant formality;" and that, for the practical purpose of providing an issue and of giving the defendants a fair trial thereon, it was as unessential as the similiter was held to be in Berrian v. State, 22 N.J.L. 9 (at p. 30).
The decisions of the Supreme Court in State v. Brennan, 83 N.J.L. 12, and State v. Acton, 109 Id. 34, and the decision of this court in State v. Williams, 89 Id. 234, cited in support of the point, do not avail. The only pertinency of the opinion in the Williams case is the observation, obiter, that the record, in a criminal case, must show the issue (indictment and plea). The present record does, in our view, show the issue. In the Brennan case the defendant had never entered a plea to the charge upon which he was found guilty. The opinion in the Acton case is subject to these observations: The finding for reversal was reached upon other and sufficient grounds and upon those grounds exclusively was sustained on appeal in this court (110 N.J.L.
499); and although the defendant, having entered a plea of not guilty, was permitted to withdraw that the plea and did subsequently move to quash the indictment, the permission to withdraw seems to have been general and not, as in the case at bar, limited to the making of specified motions.
We conclude that the point sets forth no error. This for two reasons: First, the original pleas were lifted for a specific purpose and automatically fell back into place when that purpose was served, thus making an issue of guilt or innocence; and second, the defendants, having gone to their trial in apparent reliance upon ...