41 N.J.L. 418 | N.J. | 1879
The opinion of the court was delivered by
The indictment in this case is for a conspiracy, and the first position taken before this court by the counsel of the plaintiff in error is, that the indictment itself is bad and insufficient in law. Stated in brief, the indictment charges that Jeremiah H. Stedwell, Benjamin Noyes, Henry W. Baldwin, A. Goodrich Fay, Henry H. Trenor, and Rufus C. Frost, on the 26th day of January, 1877, did conspire, &c., by divers subtle means and devices to cheat and defraud the New Jersey Mutual Life Insurance Company, a •corporation existing by the laws of this state, and William Titus, a policy-holder of said company, of their money, goods and chattels and property, by means of the said Jeremiah H. Stedwell, being then and there a director, member and public officer of said company, then and there knowingly and fraudulently taking and applying to his own use and benefit, and to uses and purposes other than the uses and purposes of the New Jersey Mutual Life Insurance Company, the money, goods and chattels of the said, &c. The overt act laid is, that said defendants, in pursuance of said conspiracy, did “ unlawfully and fraudulently take possession of the office, money, goods, chattels and property of the said New Jersey Mutual Life Insurance Company,” &c.
The legal fault imputed to this accusation is, that it is double, inasmuch as it charges the commission by these defendants of two substantive offences.
Even on the assumption of the existence of this alleged defect, how such an exception, taken at this stage of the proceedings for the first time, so far as appears from the record
But to avoid any erroneous estimate with respect to the legal value of such point, I will for a moment put it to the test. The duplicity complained of consists, according to the view of counsel, in this: It is asserted that this charge is founded on a combination to commit the crime denounced in the one hundred and fifty-fourth section of the crimes act, which makes it penal for any director, officer or member of a body corporate fraudulently to take or apply for his own use or benefit, or for any use or purpose other than the use or purpose of such body corporate, any of the property of such body corporate. It is argued that this clause describes two-distinct offences — first, a fraudulent appropriation of property to the use of the person taking it; second, a fraudulent appropriation of it to any other purposes than those of the body corporate, and that the criminal charge as here laid is of a fraudulent taking for his own use, as well as for purposes other than those of the company. The indictment does not charge these applications in the disjunctive as in the statute; but the charge is, that the director applied the property taken to his own use and to uses and purposes other than -the uses of the company. As the allegation of an application to his
This objection must be overruled.
The second exception is one of substance, and has been elaborately argued by counsel in their respective briefs. From the opinion I have formed on this subject, it will not be necessary for me to follow that discussion. The objection thus referred to strikes at the jurisdiction of the court over the offence charged in this record. It is insisted that this conspiracy, if it existed in point of fact, was entered into, and was fully completed as a crime, in the State of New York. There is no dispute regarding the main outlines of the facts in this respect. There was a completed conspiracy effected with respect to the transaction in question in the State of New York. To describe it in a word, the plan projected was to ■turn over the property and assets of the New Jersey Mutual Life Insurance Company to another company in a manner that was a fraud upon the former corporation. This -plan was concocted in New York, and was perfected there by the execution and delivery of an assignment by Mr. Stedwell, the president of the New Jersey Mutual, to the defendant, Mr. Noyes. The defendant was the only one of the conspirators who came in person into this state and performed in this state any act in pursuance of the above-mentioned confederacy.
By the application of this established legal rule, it appears impossible to avoid the result that, as an intendment of "law, the act of changing the possession of this property from the company to the defendant, Noyes, was the joint act of such defendant and of ■ Mr. Stedwell, who is also a defendant, and that by such joint act the conspiracy was renewed and partly executed in this state, in the county of Essex, and that thus this crime became cognizable by the courts of that locality.
The exception, therefore, taken on this point is not sustainable.
The next alleged error which I will,notice is the overruling by the judge at the trial of certain evidence offered by the defendant. In order to be intelligible, it becomes necessary to state certain facts, as they appeared in the proofs.
It has already appeared that the indictment charged a conspiracy to cheat the New Jersey Mutual Life Insurance Company, and in order to sustain this issue the state proved a contract dated January 26th, 1877, procured by these confederates, whereby all the assets and property of this company, including its premium notes, were transferred to the National Capital Company, on an assumption by the latter company of all the policy obligations and current obligations of the former company. This assignment the court held was an application of the property of this company to uses and purposes other
In this attitude of the case, the defendant offered to prove that some time prior to the connection of Noyes with any of the affairs of the New Jersey Mutual, the United States bonds which had been exhibited to the secretary of state by Mr. Stedwell as part of the assets of the company, had been sold by certain brokers in New York, and had ceased at that time to be the property of this company. This offer was objected to by the state, and was overruled by the court. It is now urged that this rejection was erroneous in law.
The question therefore is, in what respect, and to what degree, would this rejected evidence have helped the defence ?
It is insisted that if these bonds had been previously sold, then Noyes could not at this subsequent time have co-operated in a cheat upon the company with regard to them. But this is not tenable, for if Frost had sold these bonds, which it is clear he at least could not deny were the property of this company, then he owed the company their value, and the receipt would have had the effect of covering up the transaction and of relieving him from the debt. The fraud would have been different only in form, the substance being the same. .
There is another assignment of errors, on which the counsel of the defendant seems to lay some stress. This complaint is against these clauses in the judge’s instruction to the jury. The judge said : “ The charge is not that these parties procured the making of the contract the directors of the com-
The objection pointed at this instruction is, that, in the language of the assignment of error, “the advice of counsel, proved by the defendant to have been given .by him before , doing any of the acts charged, was an important fact to establish the motive that influenced him and prompted his acts.”
But it is very clear, and will so appear by a careful inspection of the clauses quoted, that the judge in this part of his instructions was not calling the attention of the jury to the motives of the defendant, but to the question of the legality of this contract. With respect to that point, the jury was told that the advice of counsel was of no concern, because that was a question to be determined by the court “ and not by the opinion given by counsel.” That the court did not mean to be understood as saying that the advice of counsel was in-efficacious in the cause at large for any purpose, is evident from the last clause of the foregoing quotations, in which, referring to the necessity laid upon the prosecution to prove not only an unlawful transfer of the property, but also a design in
This is my understanding of these sentences, reading them in connection with those parts of the charge immediately sequent. The counsel puts a different sense upon them; and does not such disagreement present, in a shape very distinct, the illegality of an exception of this general character ? No rule regulating the trial of causes is more valuable or more settled than the requirement that an exception to the judicial charge, to be legal, must be explicit. If the exception embraces several legal propositions, and any one of them be unexceptionable, the objection fails, Counsel must put his finger on the erroneous proposition, and thus point the mind of the judge to it; if he challenges any part of the charge in bulk, assigning no reason for such challenge, and a bill is allowed on the point, the risk of any legal ingredient being found in such bulk, is that of the party so excepting. The cases, including several of the decisions of our own courts, are conclusive with respect to this doctrine; and it therefore needs no discussion or further explanation. In its application to the present exception, it is entirely decisive, for, at the least, most of the propositions contained in that portion of the charge which was objected to, are indisputably correct. If, therefore, any single instruction in this mass should appear to be erroneous, which I have said I do not think is the case, it could not have the effect of avoiding these proceedings. In neither aspect is this assignment of errors well laid.
Again, it is urged that it was error in the court to permit Stedwell, who was jointly indicted with Noyes, to be examined as a witness on the separate trial of the latter.
This question was deliberately considered and decided by this court in the case of State v. Brien, 3 Vroom 414. The
Another error alleged is, that the court admitted certain statements made by one Pay against the defendant, when it was not proved that the former was the attorney of the latter, so as to be capacitated to make such statements. But there was evidence with respect to the attorneyship of this person, Stedwell testifying “ that he acted in the presence of Noyes as if he was his attorney, and gave him advice in relation to the contract.” The question of the relationship of this man to the defendant was thus necessarily for the decision of the jury. In this view, the evidence in question was plainly competent.
The other objections alleged have been examined by me. None of them appear to me to be of sufficient gravity to require discussion, and I shall therefore dispose of them with the general remark that I have found nothing in them that has prevented me from coming to the conclusion that this judgment should be in all things affirmed.