For reversal -- Chief Justice Weintraub, and Justices Jacobs, Hall, Schettino and Haneman. For affirmance -- Justice Francis and Proctor. The opinion of the court was delivered by Schettino, J. Proctor, J. (dissenting). Mr. Justice Francis joins in this dissent.
[43 NJ Page 88] Defendants, Walls, Herndon, Hutchins, and Prince (and two others, Gramaglia and Epsaro), were indicted for "conspiring together with" Peter Foti, not named
a defendant, to conduct a lottery between January 1, 1959 and April 10, 1962 in violation of N.J.S. 2A:98-1 and 2. The indictment against Gramaglia was dismissed on the State's motion for nolle prosse and Epsaro's motion for acquittal was granted at the close of the State's case. The remaining defendants were convicted by a jury and all appealed.
The Appellate Division, in an unpublished opinion, found there was sufficient evidence of a conspiracy to convict, but reversed on the grounds that certain actions and statements of the trial court in returning the jury for reconsideration constituted plain error and that defendants' motion to suppress evidence taken from one of the defendants, Prince, should have been granted. On the State's petition, we granted certification. 41 N.J. 307 (1964).
On the first day of the trial, defendants made a motion to suppress evidence seized under a warrant for the search of the residence of defendant, Prince. Defendants' motion was denied as was their objection to its admissibility during the trial. (We note that R.R. 3:2A-6 requiring such motions to be made before trial was adopted after this trial.) The admission of other evidence against all four defendants was objected to on the ground that a conspiracy among the five had not been established by the State. Defendants' motions to acquit on the same ground were also denied.
The State's chief witness was Foti, the person with whom defendants allegedly conspired. He testified that in June or July 1961 he asked defendant Walls whether he could write numbers, and Walls told him he would let him know. The following day Walls told him he could start and supplied him with the necessary gambling paraphernalia.
Foti's description of the gambling operation was as follows: People would come to his store and select a three digit number which represented the bettor's choice of what would be the last three digits of the total amount of the pari-mutuel betting at a specific race track. The odds were 500-1. Foti would make three copies of a slip, writing the date on the top and the
amount of the wager, total the slip and give the customer the white duplicate. He retained two slips, one of which was a yellow copy which went to the gambling "bank" represented by Walls, and the other Foti kept. The day after Foti started writing numbers Walls came to the store at around 2:30 or 3:00 P.M., asked if the work was ready, received an affirmative answer from Foti, who then gave him an envelope containing the yellow slips from the daily play. On the following day, Walls brought in an adding machine tape which was described during the trial as a ribbon. On this ribbon was printed each bet made with the amount thereof and at the bottom of the ribbon these figures were totalled. Under the total would be listed the 25% commission credited and payable to Foti, and the balance was the amount due Walls. If the ribbon showed moneys coming to Foti, Walls would give it to him; if it showed money due Walls, Foti paid him. In each case the ribbon represented a tabulation of the previous day's bets. This procedure was followed each day, Sundays excepted.
In January 1962 defendant Herndon came to Foti's store and told Foti he was taking over Walls' job. He did so until some time at the end of February, when defendant Hutchins took over. The operations under Herndon and Hutchins were the same as under Walls. After only six days and during the first week in March, Hutchins brought defendant Prince to Foti and told Foti that Prince was taking over, which he did. Until Foti was arrested on April 4, 1962, the operation continued with minor variations i.e. Prince would appear in the morning and transact the money facet of the operation and "someone else" would appear about 2:30 or 3:00 P.M. to pick up the yellow slips.
On April 4, 1962 police officers, armed with a search warrant, entered Foti's store and seized certain items which were identified by Foti as follows: numbers books (marked S-1, S-2, S-3, and S-4), used to record customers' numbers bets, which were found on his person; a tally sheet (marked S-5), allegedly delivered to Foti by Prince on April 4, 1962 prior
to the raid, also found on his person (he identified numbers bets recorded on S-5, the adding machine tape, as bets from his numbers book S-1, and also from S-9); a business card of defendant Prince which the latter had allegedly given to Foti (marked S-6); $37 in cash representing the lottery receipts collected on April 4, also found on Foti's person (marked S-7); three "cut" cards (marked S-8), allegedly given to him by Prince on March 29, 1962 (the "cut" cards numbers had lesser odds, i.e., 400 to 1 instead of 500 to 1); a numbers slip (marked S-9), given by Foti to one Felton Lee Willis, a bettor, on April 3; and numbers books, (marked S-16), allegedly given by Prince to Foti on April 4, 1962 to replace water-soaked books (S-2 and S-3).
Initially these materials were admitted in evidence only as against Prince because the trial court found no proof of a conspiracy but later it reversed this ruling holding that the State had produced sufficient evidence of a conspiracy by all defendants and admitted them against all defendants.
The warrant for the search of the residence of Prince was served on Prince at his front door at about 11:15 A.M. on April 10, 1962. None of the materials seized was found in Prince's residence but they came from his person when, on orders from the raiding authorities, Prince emptied his pockets. They were six business cards of Prince and $752.24 in tens, fives, ones and some change taken from Prince's jacket and pants pockets and his wallet. These, marked in evidence as S-11 through S-14, were admitted into evidence only against Prince.
The Appellate Division first disposed of defendants' contention that the trial court erred in not dismissing the indictment at the end of the State's case for lack of proof of the alleged conspiracy. The same contention is made to us. Defendants argue, in effect, that if the dealings of Foti with each of the defendants can be called a conspiracy (which defendants deny) there were four separate conspiracies and not the one charged in the indictment; that the State was required
to prove by words or conduct that these four men agreed to conduct a lottery as that is the offense with which they are charged and which must be proved; and that there is lack of proof of that offense. We agree with the Appellate Division holding that there was sufficient evidence of one conspiracy involving Foti and all defendants.
We have recently noted in State v. General Restoration Co., Inc., 42 N.J. 366 (decided June 1, 1964) that:
"The increased use of the conspiracy doctrine has coincided with the growth of criminal activity since the seventeenth century and the contemporary tendency to identify criminal law with morality. 'Criminal Conspiracy,' 72 Harv. L. Rev. 921 (1959). Several factors contributed to the growth including the public concern with the corporate practice of crime and the existence of criminal groups which provide a convenient forum for the birth of additional corrupt activity not envisioned when the group was formed.
As Chief Justice Weintraub has stated 'the gist of the offense [of conspiracy] is the criminal agreement.' State v. LaFera, [35 N.J. 75, 86 (1961)]. While the conspiracy statute requires an overt act, the agreement alone can satisfy the act requirement because intent and act can be merged in the agreement. State v. Carbone, 10 N.J. 329, 336-37 (1952)."
The State proved the making of a conspiracy agreement by Foti and Walls to violate N.J.S. 2A:98-1, and -2. We do not feel that the State has to prove that a conspiracy was agreed to by all five in June or July 1961 when Foti first spoke to Walls. In State v. Carbone, 10 N.J. 329, 338 (1952), we stated:
"But it is not essential * * * that all enter into the conspiratorial agreement at one and the same time. * * * 'What has to be ascertained is always the same matter: is it true to say, * * * that the acts of the accused were done in pursuance of a criminal purpose held in common between them?' [citation] One who joins a conspiracy after its formation is equally guilty with the original conspirators. * * * State v. Lennon, 3 N.J. 337 (1949)."
Eacock v. State, 169 Ind. 488, 82 N.E. 1039, 1045 (Sup. Ct. 1907) states that "A person coming into a conspiracy after it is formed and assisting in its execution is deemed a party
thereto, and is liable therefor. The coming in of such person does not destroy the identity of the conspiracy, but it continues the same conspiracy." Compare Den ex dem. Stewart v. Johnson, 18 N.J.L. 87, 89-90 (Sup. Ct. 1840), wherein the court stated:
"If an individual connect himself with others in a conspiracy to defraud, or for any other purpose, it would be no answer to say that the whole plan was concocted before he became an associate. By connecting himself with them, and aiding in the execution of their plan, he adopts their prior acts and declarations, so far at least as they constitute a part of res gestae, as his own; as much so, as if he had been present and assented to each successive step in carrying out and consummating the fraud."
As we view the record, there was only one conspiracy, the original one between Foti and Walls. Thereafter, in execution thereof Foti and Walls acted through January 1962 when Herndon took over Walls' performance and successively Walls' part of the agreement was performed by Hutchins and Prince. In order to establish the conspiracy, a series of overt acts having a natural connection is admissible. State v. Yedwab, 43 N.J. Super. 367, 378-9 (App. Div. 1957), certif. denied 23 N.J. 550 (1957). From such acts a jury could find by the circumstantial evidence approach (State v. Goodman, 9 N.J. 569, 581 (1952)), that the conspiracy continued to function with all four defendants participating in the successive operations thereof. The jury could also infer that the whole series of illegal acts resulted from associated action based on a prior understanding.
We conclude, as did the Appellate Division, that the total effect of the proof and giving the State all legitimate inferences therefrom indicated sufficiently the existence of a conspiracy and thus the case had to be submitted to the jury. 1 Wharton, Criminal Evidence (12 ed. 1955), § 180. Cf., State v. Fiorello, 36 N.J. 80, 90-91 (1961).
The Appellate Division next considered the action and remarks of the trial court when notified by the jury of a deadlock
after four hours of deliberation. Contrary to the mandate of State v. Pontery, 19 N.J. 457, 477 (1955), that it is "improper" for a trial court "to ask the explicit numerical standing of the jury," the trial court here said "I don't care which way you are voting and I don't want to know which way the balance is but I would like to know what your vote is, how you are divided on it." It was told that the vote was 11 to 1. The trial court after remarking that that was all it wanted to know immediately stated:
"* * *, the case has been several days being tried and you have four defendants to consider, really like four cases and you have had a lengthy charge of the Court, all that has been said, and you have only had all that for consideration and deliberation for four hours plus your coffee and sandwich time when you had lunch so I think I should require you to go back and continue your deliberations for at least another hour and see what the situation is then."
Counsel for all other defendants joined an objection to these remarks by defendant Wall's counsel. We agree with the ...