For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The defendant-appellant Warren Edward Dennis and his brother Romanuel Dennis were convicted of having unlawfully conspired to violate the uniform narcotic drug law of New Jersey (R.S. 24:18-1 et seq.). Romanuel did not appeal but Warren filed notice of appeal from his conviction to the Appellate Division and we certified before argument there. Following the conviction, Warren and Romanuel filed a habeas corpus petition which was denied by the trial judge. No appeal was ever taken from this denial.
At the trial, the State introduced testimony by Detectives Centanni and Biunno of the Essex County Sheriff's Department, as well as other witnesses. Centanni, posing as a drug addict, first met Warren in March 1962. At that time he told Warren that he would like to buy some heroin. Warren sent him to a man named James who sold him what purported to
be a deck of heroin. A field test disclosed that the contents contained no narcotic of any kind. On April 17 Centanni, accompanied by Biunno, met Warren for the second time. He asked Warren whether there was any "stuff" (heroin) around and to make sure that it was "good stuff" this time. Warren left the side of Centanni's car, went over to his brother Romanuel who was nearby, and returned to the car with a deck of heroin which he sold to Centanni for five dollars. Centanni testified that while Warren was with his brother "something passed between the two"; he later acknowledged that he did not see the actual pass but "saw Romanuel reach his hand out and Warren reach his hand out."
On April 23 Romanuel flagged the detectives' car and asked them if they were looking for his brother. When they replied in the affirmative he asked "how many do you want" and they told him they wanted "two." He left and in a few minutes returned and delivered two decks of heroin receiving ten dollars for them. On the following day, April 24 the detectives saw both Warren and Romanuel at a street corner. Warren came over to Centanni's car and asked how many he wanted. When Centanni said he wanted one, Warren told him to go down to Hayes Street. Centanni did so and then saw Romanuel walk into a nearby tavern followed shortly by Warren. When Warren came out of the tavern he walked up to Centanni's car, handed him a deck of heroin and received five dollars. Centanni and Biunno then left the area and sent two other detectives to arrest both Warren and Romanuel. Centanni's testimony as to his meetings with Warren and Romanuel in April was corroborated by Biunno. The decks or envelopes received by Centanni from Warren on the 17th and 24th and from Romanuel on the 23rd were delivered to the Newark Police Department chemist who testified that he analyzed their contents and found that they contained heroin.
Romanuel did not testify on his own behalf but Warren did. Warren said that he first saw Centanni in March 1962 and that Centanni asked him where he could buy some "stuff." He told him he did not know, and when Centanni "kept insisting,"
he left and later returned with a small glassine envelope in which he had placed sugar. He delivered the envelope to Centanni who paid him five dollars. Warren next met Centanni on April 17. Centanni then asked him "to buy some more heroin" and to make sure this time "he don't get burnt." Here again Warren testified that he put sugar in a glassine envelope, delivered it to Centanni, and received five dollars. On April 24 Warren met Centanni for the third time, and according to Warren's testimony, he again delivered sugar in a glassine envelope and received five dollars. When Warren was asked where he got the glassine envelopes he said that he "used to use heroin" and had them "from previous uses." Warren denied that he ever had any conversation with his brother Romanuel with reference to narcotics or their sale. He also denied that any narcotics had ever passed from his brother to him, or that he had ever sold narcotics to anyone. He admitted on direct examination that in 1955 he was convicted of unlawful possession of narcotics and on cross examination that in 1953 he was convicted of auto larceny. See N.J.S. 2A:81-12.
At the close of the State's case the defendants moved for acquittal and they renewed their motions at the end of the entire case. The trial court's denial of the motions was clearly proper. See State v. Fiorello, 36 N.J. 80, 86 (1961), cert. denied 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2 d 396 (1962); State v. Loray, 41 N.J. 131, 138 (1963). There was evidence from which the jury could readily infer not only that each of the defendants had sold heroin but also that they had conspired to sell heroin as charged in the indictment. Under our law an agreement or combination between two or more persons to commit a crime constitutes an unlawful conspiracy, if (apart from certain exceptions) there has been an overt act in furtherance of the agreement or combination. N.J.S. 2A:98-1, 2; State v. Carbone, 10 N.J. 329, 338 (1952). The gist of the offense is the criminal agreement which may be established by inferences drawn from the circumstances. See State v. Carbone, supra, 10 N.J., at pp.
341-342. Here the testimony was legally sufficient to justify a jury finding that, in selling the heroin to the detectives, Warren and his brother Romanuel had acted pursuant to an agreement between them. The described behavior of the brothers during the April meetings would lead one naturally to the conclusion that they were acting in concert; at least the jury could reasonably so find, as it did by its verdict.
Warren now advances the contention that the verdict of the jury was against the weight of the evidence. In support of this contention he attacks conspiracy indictments generally and cites Justice Jackson's well-known concurring opinion in Krulewitch v. United States, 336 U.S. 440, 445, 69 S. Ct. 716, 93 L. Ed. 790, 795 (1949). We recognize that there have been instances where conspiracy prosecutions may have been misused (cf. State v. General Restoration Co., Inc., 42 N.J. 366 (1964)) but this is clearly not such an instance. There were no efforts to draw in any individuals other than the two direct participants and no efforts to present evidence which was not clearly relevant to the charge against them. There were no factual complexities and the jury was explicitly charged as to the elements of the crime of conspiracy and the State's burden of establishing those elements beyond reasonable doubt. Warren suggests that the jury would have difficulty in distinguishing his substantive crime, resulting from his possession and sale of the heroin, from the criminal conspiracy charged in the indictment but we fail to see why that should be so, ...