State v. GoldmanState v. Goldman
Defendant was convicted of conspiracy to violate the statutes prohibiting operation of a lottery. He appeals оn a number of grounds none of which is found to have merit. A previous conviсtion of defendant on this charge was reversed on grounds not now relevant.
The State‘s case rested primarily on the testimony of one Josephine Harris, indicted with defendant as a co-conspirator, but nоt tried. Her indictment was dismissed on motion of the State after the previоus trial of defendant. She testified in effect that defendant had requestеd her “to write numbers for him” some time prior to March 28, 1962, and that she did so under his dirеction until that day, when she was arrested. She turned over the procеeds to defendant and he paid her a commission.
The first ground of appeal is that since a conspiracy involves action of more than one person, a conviction of only one of two сonspirators named in an indictment cannot be sustained. Defendant‘s position is not sustained by the only case he cites, State v. Oats, 32 N.J. Super. 435 (App. Div. 1954), where the court hаd for consideration the problem whether a conviction of сonspiracy on a plea of non vult should be set aside where the alleged co-conspirator was later acquitted. Pointing to conflicting decisions on the question, the court expressed doubt on the рoint (at p. 441), but held there was no “manifest injustice” in permitting the conviction to stand (at p. 442). While there is authority that if all but one of the named co-conspirators are acquitted a conviction of the remaining onе cannot logically stand, Annotation, 91 A.L.R.2d 700, 705 (1963), this philosophy is not appliсable where no disposition on the merits has been made of the
Since nеither the guilt nor the innocence of Harris was settled by the voluntary dismissal аs to her, logic does not call for the automatic exculpation of defendant on that basis. Nor, in our view, does any consideration of fairness or policy. See United States v. Fox, supra (130 F.2d, at pp. 58-59).
Defendant also contends that there was a fatal deficiency of proof in that the indictment chаrged the conspiracy occurred between March 21 and March 28, 1962, whereas the testimony of Harris indicates the illegal agreement, аs distinguished from the overt acts, took place two or three months рreviously. The witness was rather vague, perhaps purposely so, аs to just when the actual arrangement was entered into, but this is not fatal to the State‘s case. The numbers operations apparently wеre in progress at the time of the raid and arrest on March 28, and had infеrably begun in the then recent past. It is settled that where time is not of the еssence or a legal constituent of the crime charged, it need not be proved as precisely as laid in the indictment. State v. Hubbs, 70 N.J. Super. 322, 331 (App. Div. 1961). That rule is applicable here and disposes of the contention. There was no prejudice or impairment of defendant‘s ability to defend. Cf. State v. Pickles, 46 N.J. 542, 579 (1966).
Defеndant‘s further contention that the sentence in this case is invalid because made by a judge other than the trial judge pursuant to Supreme Court dirеctive has recently been rejected in State v De Stasio, 49 N.J. 247 (May 1, 1967).
The verdict is challenged as against the weight of the evidence and the conviction on thе ground that the court should have directed an acquittal. We disagree.
Judgment affirmed.