On appeal from the Appellate Division of the Superior Court (opinion reported in 17 N.J. Super. 446) pursuant to certification by the Supreme Court at the instance of defendants.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
[10 NJ Page 333] After affirmance by the Appellate Division of the Superior Court, we certified for appeal a judgment of conviction entered on a jury verdict against appellants Carbone and Franze upon the trial of an indictment charging that on June 26, 1950, "and continuing to and including July 22, 1950," at the City of East Orange, New Jersey, Carbone and Franze and "John Doe," whose true name was unknown, conspired to transgress the laws of the State denouncing bookmaking on horse races. There was, it is said, a severance as to the person described by the fictitious name.
The indictment alleges these overt acts to effect the object of the pleaded conspiracy: On June 26, 1950, "John Doe" introduced one John Kammerer to Carbone "for the purpose of having" Carbone "establish" Kammerer in "a place" in East Orange "for the unlawful making and taking of what is commonly known as a book upon" horse races; and Carbone thereupon introduced Kammerer to Franze "for the purpose of having" Kammerer "make and take * * * a book upon" horse races "in the premises known as No. 106 North Grove Street, in East Orange." On the day given, and on divers other days thereafter until July 22, 1950, Franze "permitted" Kammerer "to enter the premises" 106 Grove Street, in East Orange, "for the purpose of making and taking * * * a book on" horse races. On June 28, 1950, at East Orange, "John Doe" received the sum of $150 from Kammerer, "as a rental for the use of the premises" named for the stated unlawful purpose; and on July 1, 1950, and again on July 16 ensuing, "John Doe" received the sum of $300 from Kammerer, in each instance "as a rental for the use of the premises" for the same unlawful purpose.
There was evidence tending to show the illegal combination charged, the commission of the overt acts specified and other such acts in the advancement of the undertaking, and Kammerer's participation in the conspiratorial design.
Briefly, in the latter part of June, 1950, at the City of New York, Kammerer was introduced to a man known to him only as "Murray" by one Kalik, a known bookmaker then plying his trade in that city. "Murray" is referred to in the indictment by the fictitious name. Kalik told Kammerer: "Go with Murray to Jersey and he will get a phone for you." This for the purpose of bookmaking on horse races. Kammerer accompanied Murray to a drug store on Main Street in East Orange, New Jersey. Murray entered the drug store and soon returned with a man identified as the defendant Carbone, whom he introduced to Kammerer. In response to Carbone's inquiry, Kammerer said he was ready for business and needed "only a scratch sheet, a pencil
and some scratch paper." Carbone instructed Kammerer to pay Murray for the use of the telephone -- $150 for the first week, and thereafter $300 on the first and fifteenth days of each month. Murray then went on his way. Carbone drove Kammerer to an automobile service station nearby and there he made a telephone call, after which he handed Kammerer a slip of paper bearing the number of the telephone in the defendant Franze's apartment in the building at 106 North Grove Street, in East Orange, provided him with "a scratch sheet, pencil and some scrap paper," and then drove him to the apartment house. Carbone entered the building, telling Kammerer to wait, and returned in a few minutes and supplied Kammerer with a key to the building's street entrance and a key to the Franze sixth-floor apartment; and thereupon they proceeded to the apartment, where Kammerer and Mrs. Franze were introduced, the former as "Jack" and the latter as "Laura." Carbone indicated to Kammerer the table, telephone and radio in the apartment to be used in the bookmaking venture; and he told Mrs. Franze to present her telephone bills to Kammerer for payment. Carbone departed and had no further contact with Kammerer. Thereafter, Kammerer was a daily occupant of the apartment (excluding Sundays) from 11:30 A.M. to 5:30 P.M., receiving bets over the telephone from Kalik's customers, a list of whom was supplied by Kalik each morning before Kammerer left New York City for East Orange, and was returned by Kammerer with bets recorded to a man known as "Charlie" provided him with the money to pay the telephone bills incurred at the East Orange apartment.
The insistence is that since Kammerer "was not charged in the indictment either as a defendant" or as "a conspirator with any of the defendants," evidence of his "operations" and "conversations" in furtherance of the conspiracy was not admissible against the defendants Carbone and Franze, unless the occurrences were in their presence; and, moreover, that since "the evidence clearly showed that Kammerer was
a party to a conspiracy together with" Kalik and one Katz "to make book," and neither "Murray," Carbone nor Franze "had any interest whatsoever in that conspiracy," Kammerer's "acts in the apartment and in New York were performed on behalf of Kalik and Katz," and so Kammerer "was not acting as agent of either of the defendants, and the evidence was not admissible on the theory of agency." The argument proceeds on the hypotheses that neither Carbone nor Franze had "a stake in the venture which Kammerer was conducting for Kalik and Katz"; that Carbone's "only act was obtaining a phone at a price payable to Murray and not to him"; that Franze was not shown to have had "any knowledge, at the inception, of Kammerer's intentions," and she "was convicted because she did not put an end to Kammerer's activities"; that there was no evidence that "the taking of bets and the receipt and payment of money" were in furtherance of a conspiracy between Kammerer and the defendants; and that, on the contrary, Kammerer's "acts were pursuant to an agreement he had made with Kalik and Katz," and "not having been named as a conspirator in the indictment, his acts were not binding on defendants." It is suggested that the grand jury "by its indictment found that Kammerer was not a co-conspirator with those charged in the indictment with conspiracy." The case of State v. Rappise, 3 N.J. Super. 30 (App. Div. 1949), is cited in support of the point.
But the doctrine implicit in this reasoning is not countenanced by the common law; and the rule of the common law has not been modified in New Jersey.
At common law, a conspiracy consists not merely in the intention but in the agreement of two or more persons (not being husband and wife) to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable [10 NJ Page 337] if for a criminal object or for the use of criminal means. The agreement is an advancement of the intention which each has conceived in his mind; the mind proceeds from a secret intention to the overt act of mutual consultation and agreement. Mulcahy v. R., L.R. 3 H.L. 306, 317 (1868) per Willes, J.; Quinn v. Leathem,  A.C. 495, 529. Vide R. v. Brailsford,  2 K.B. 730, 746; R. v. Thorp, 5 Mod. 221; Comb. 458; R. v. Plummer,  2 K.B. 339, 71 L.J.K.B. 805; 20 Cox 269; 66 J.P. 647; R. v. Meyrick and Ribuffi, 21 Cr. App. R. 94 (1929); 1 Hawk., c. 72, § 8. It is not requisite, in order to constitute a conspiracy at common law, that the acts agreed to be done be such as would be criminal if done; it is enough if the acts agreed to be done, although not criminal, be wrongful, i.e., amount to a civil wrong. R. v. Warburton, L.R. 1 CCR. 274; 40 L.J.M.C. 22; 10 Cox 584; R. v. Whittaker,  3 K.B. 1283, 84 L.J.K.B. 225; 24 Cox 272; 79 J.P. 28; R. v. Rowlands, 17 Q.B. 671. The gist of the offense of conspiracy lies, not in doing the act, nor effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. 1 East P.C. 462. The offense depends on the unlawful agreement and not on the act which follows it; the latter is not evidence of the former. 2 Burr. 993; 3 Burr. 1321. The combination itself is vicious and gives the public an interest to interfere by indictment. Mogul S.S. Co. v. ...