Goldmann, Smalley and Schettino. The opinion of the court was delivered by Smalley, J.s.c. (temporarily assigned).
This is an appeal by the defendant-appellant Edelman from a final judgment of the Law Division of the Superior Court.
On February 16, 1951 the Bergen County grand jury returned an indictment charging that the defendant, Al Edelman, Joseph Gross and Louis Ruggiero did conspire at the Borough of Bogota on January 10, 1950 and divers other days thereafter, and on March 31, 1950, to make or take book in violation of R.S. 2:119-1. The indictment further alleged the following three overt acts: first, the conspirators did in violation of R.S. 2:135-3, keep a cellar apartment at 34 Hill Street in the Borough of Bogota with intent that persons might and should resort there for bookmaking; second, that Louis Ruggiero paid Jennie Brandt on various occasions, the sum of $20 for use of the telephone and premises in the making or taking of book; and thirdly that Ruggiero did bring Al Edelman and Joseph Gross to said premises on the above mentioned dates, and that the latter two did by telephone make book in violation of R.S. 2:135-3.
On the first trial of this indictment, Edelman and Ruggiero were jointly tried, with a severance as to Gross, the latter being the State's principal witness. That trial resulted in Ruggiero's acquittal and Edelman's conviction. On appeal, Edelman's conviction was reversed. State v. Edelman , 19 N.J. Super. 350 (App. Div. 1952).
The second trial of Edelman on the same indictment commenced on February 2, 1953, and again resulted in a conviction, which is herein being appealed. During the second trial the defendant did not testify and the only witness in his behalf was Ruggiero. The State produced Gross, Mrs. Brandt, and telephone company employees who testified as to the records of installation of equipment and the assigning of telephone numbers, and police investigators who checked and recorded the toll calls from such numbers.
The defendant contends that the trial court erred in refusing to grant his motion to dismiss the indictment on the ground that Ruggiero's acquittal caused the indictment
to be a "false bill." However, the previous acquittal of Ruggiero merely disposed of the indictment as to him, and did not affect the defendant. State v. Salimone , 19 N.J. Super. 600 (App. Div. 1952). The reversal of defendant's prior conviction did not amount to an acquittal and consequently a plea of double jeopardy is not applicable herein. Smith & Bennet v. State , 41 N.J.L. 598 (E. & A. 1879); State v. Labato , 7 N.J. 137, 143 (1951); State v. Lamoreaux , 20 N.J. Super. 65, 69 (App. Div. 1952). We have not been referred to any case for the authority that upon an acquittal of one defendant to a charge of conspiracy, that the indictment is automatically invalid as to the remaining defendants.
The disposition of this matter is based upon the uncontroverted law in this jurisdiction regarding the criminal act of conspiracy. The rule is clearly enunciated in State v. Carbone , 10 N.J. 329, 338, 339, 341, 342 (1952), where Justice Heher said,
"In New Jersey, an agreement or combination between two or more persons to commit a crime constitutes a conspiracy punishable as a misdemeanor, if with certain exceptions there be an overt act in furtherance of the object of the agreement by one or more of the parties. R.S. 2:119-1, 2, N.J.S.A.
Where two or more persons have entered into a conspiracy to perpetrate a crime, the acts and declarations of one of the conspirators in furtherance of the common object are deemed in law the acts and declarations of all. * * * This is the rule in New Jersey; and it is the general rule.
A conspiracy may be proved by direct evidence, or by circumstances from which the jury may presume it. * * * Proof of the existence of a conspiracy is generally a 'matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.' R. v. Brissac , 4 East 164, 171, Grose J. Though the act of conspiracy is the gist of the offense, 'it is not necessary to show an actual association or confederacy, but it may be left to reasonable inference.' Chitty, Cr. L. , 1141. * * *"
Also it is the prevailing view that the conspirators need not know each other, nor need the ...