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State v. Simon

Decided: May 25, 1936.

STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
AARON L. SIMON, IRVING SIMON, WILLIAM CONLON, OTHERWISE KNOWN AS IRISH WILLIE CONLON, OTHERWISE KNOWN AS WILD BILL CONLON, CHARLES DECKER, OTHERWISE KNOWN AS HOP DECKER AND ALBERT DURGETT, PLAINTIFFS IN ERROR



On writ of error.

For the plaintiff in error Aaron L. Simon, Ward & McGinnis.

For the plaintiff in error Irving Simon, Minturn & Weinberger.

For the plaintiff in error William Conlon, Samuel Raff.

For the plaintiff in error Charles Decker, Chandless, Weller & Selser.

For the plaintiff in error Albert Durgett, Milton Schamach.

For the defendant in error, James D. Carpenter, Jr.

Before Brogan, Chief Justice, and Justices Lloyd and Donges.

Lloyd

LLOYD, J. The defendants below (plaintiffs in error here) were convicted of the crime of conspiracy to embrace a jury in a civil cause, and we are asked to review the conviction on bill of exceptions alone. The single assignment of error is that the trial judge erred in overruling the pleas of autrefois convict.

The indictment in the present case and under which the conviction was had charged a conspiracy entered into on April 26th, 1933, to embrace a jury in the case of Richmond v. Orbe. To this indictment pleas of autrefois convict in statutory form were attempted to be filed, and to these were added pleas in extenso to the same effect. The trial judge held the statutory pleas ineffective, apparently disregarding the further pleas and the proofs later submitted.

Section 45 of the Criminal Procedure act (2 Comp. Stat., p. 1835) provides that "in any plea of autrefois convict or autrefois acquit it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted, as the case may be, of the said offense charged in the indictment."

The statutory pleas of the defendants failed to contain the word "lawfully" and this, we think, rendered them fatally defective. The section, like that prescribing the short form of indictment for murder set forth in section 36, was intended to provide a short form of criminal pleading, permissible, though not exclusive of the right to plead the facts in extenso. If the defendants sought to avail themselves of the short plea it was essential that they comply with its requirements in all essentials. A conviction to be available as a plea must of necessity be a lawful conviction, and upon the failure to comply with this requirement of the statute, the judge was right in ruling as he did. State v. Firth, 103 N.J.L. 275.

There remain the additional pleas. These in substance alleged in detail a former conviction. Without demurrer on the part of the state and without formal traverse of the issue thus raised, the parties proceeded to a trial of the truth of the matters alleged ...


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