*1 PLAINTIFF-RESPONDENT, JERSEY, THE OF NEW STATE GOODMAN, POWELL, T. v. IRA MILLER, F. EDWARD RICHARD EISENSTEIN, AND ISADORE DEFENDANTS- APPELLANTS. May Argued April 26, 1952. 1952 Decided *3 Isadore Mr. John E. Toolan the cause for appellant argued Eisenstein.
Mr. Kessler the cause appellant Samuel I. argued Richard F. Powell. Ira Mr. Max Mehler the cause for Goodman argued appellant
( Matthews, John A. attorney). Mr. Mr. John A. Edward Laird the cause for argued appellant T. Miller. Gaulkin, Prosecutor,
Mr. Edward County Essex argued the cause for the Jersey. State of New of the court delivered opinion This is an J. certified to this court on appeal,
Jacobs, motion, its own of conviction for judgments conspiracy extort, entered in the Essex Court.' County The defendant Ira Goodman is Deputy Director of the Department Public Affairs of the of Newark. The City Newark of Health Department is within the jurisdiction of Department Public Affairs and Goodman has exer- cised over supervisory power it since his appointment 1949. The May, defendant Richard P. Powell is a sanitary in the Pood and inspector Division Drug Department of Health which is entrusted, matters, other among *4 the enforcement of regulations the governing importation and of milk in Newark. The distribution defendant Isadore Eisenstein, a friend Powell, of is in the milk and business the defendant Edward T. Miller, a friend of Eisenstein, is an attorney with law offices in Newark. On 26, Priday, May 1950, a letter was sent by Department of Health to Schoharie County Coop. Dairies, Inc., that, advising pur- suant to it was hearing, removed being from the list of milk On milk to Newark. of for shipment companies approved Schoharie, 29, 1950, representatives Monday, May office, re- Eisenstein, Miller’s visited recommendation by him a fee of and paid him Schoharie represent tained to Eisenstein. $7,000 to remitted $7,500, of which he later Miller, from Goodman and a call On that day following and called reinstated be ordered that Schoharie’s approval 7, June reinstatement. On to Powell advise Schoharie Inc., Queensboro Products, Earm 1950, a letter was sent to to its that, plant pursuant Steamburg advising hearing, 8, 1950, list. On June the approved removed being office, Queensboro retained visited Miller’s representatives Canton, Queensboro’s Steamburg, him to represent $10,000 $5,000 Hill him on an agreed Brier plants paid Queensboro was reinstated. Miller fee. called Goodman Queensboro June-13 $5,000 to Miller on additional paid $9,075 $10,000 to Eisenstein. and Miller remitted from the a held with to respect On June w'as hearing and it was announced Dairy C'ooperdale Company withdrawn. After the would be company’s approval hearing Miller and retained representative company paid $7,000 $7,500 'him he remit about to of which expected Cooperdale Eisenstein. No written communication advising ever of its removal from the list was sent approved of Health. Department of 1950 the Essex Prose County summer
During determine whether any cutor conducted investigation crimes had committed in connection the aforemen been tioned the milk dealers course thereof payments Goodman, Powell, gave Miller voluntary Eisenstein, 16 testimony. Super. State v. N. J. (App. See J. 1951), Div. affirmed N. The payments (1952). to Miller and his remissions Eisenstein were not disputed were but there denials Goodman and Powell or either of them receive received or thereof. How any part ever, March, 1951, County Essex returned grand jury Goodman, Powell, an indictment three counts against *5 in two, they Miller which count that charged, and. 2:127-1; had to commit extortion conspired statutory (R. S. R. had that sums they corruptly agreed S. 2:119-1) money of would be obtained from milk dealers for reinstate ment their as and that Miller dealers, and approvals a Eisenstein would take and receive thereof and portion Goodman and would take and receive a portion Powell After a trial all thereof. defendants were lengthy they convicted under count two and have duly appealed. Their main contention State’s evidence was insuffi sustain the cient to of conviction and that judgments their motions at the close of acquittal State’s case should have the trial been court. This granted by necessitates summary evidence pertinent introduced and relied upon by the and which the State was liberty as accept Fox, Super. 132, (App. See credible. State v. N. J. Div. 1951). director,
When Goodman first was designated deputy Dr. Girarles health Y. Craster was officer charge Health, Department, of E. was assistant Joseph Connolly health Division, officer in of the Pood and charge Drug David E. was Morgan chief in the Pood inspector acting Division. Drug assisted generally Connolly Morgan superior authority to in the* inspectors Division including In Inspector 1950, Powell. January, Goodman advised Connolly that thereafter all new applications for approval to be sent to the office of the Director of the Department of Public Affairs and later that month Goodman told Connolly that Powell was to become a free and be agent permitted come as he go In the pleased. meantime and thereafter Goodman and Powell had many conferences together. January, Eisenstein called Morgan home, him invited to his saying there; Powell would be declined the Morgan invitation. In March, 1950, Goodman called who was then at Morgan, home recuperating from illness, inquired health, about his and asked him to telephone when he returned to work. On March 1950, Morgan *6 lunch had they and work, Goodman returned to telephoned asked time Goodman that at that testified Morgan together. Morgan inquired when money” him can we some and “how get that the inspectors as he meant he said “how about to what the milk dairies putting the plants out go inspect idea” a “crazy him it was some.” told pressure on Morgan conversation Goodman During and he “wouldn’t do it.”' the he him. knew Powell was and whether asked who Morgan March 20 luncheon testified further that after the Morgan that him had called saying told that Goodman Connolly there- him” and over and advise Powell “was to take going as matters he no consulted by Connolly after was longer exclusion the involving inspectors assignment of milk concerns from the lists of approved companies. March, 1950, told him that testified that in Powell Connolly there had been a which meeting feeling during sched- inspection there should be more rigid expressed he “adviser and consultant” Connolly’s ules and would be he him was to on “tougher” Goodman told get Mr. in milk and “work with matter of cleanliness dairies Connolly it.” that time gave Powell on At about Goodman a names of four milk and told companies slip bearing what him take it with Powell —“he knows to do with up it.” him another list the names of Later Powell bearing gave Queensboro Schoharie, and Cooper- companies including him it in “so dale, nobody his telling keep pocket bore, it was.” would know where This list each alongside name, the names of its owners company’s purchasers, and, number of farms dairy controlled along in Powell’s the name of the handwriting, margin person who was to Ten were to be inspect company. companies Powell, six Roman by by and two inspected Inspector at later dates most of Inspector these Manning; companies excluded from were lists. approved Schoharie which sells its cooperative organization entire do Bovina Center output, Creamery and Guernsey Association, Breeders to Middletown Milk & Cream Co. Schoharie was inspected Roman May 11 to May and 22May Connolly notified Schoharie that a hearing would be held on May 24. Notices of also sent hearing to Bovina and Guernsey. Middletown retained David T. Wilentz, an attorney-at-law with offices at Perth Amboy, to represent Schoharie, Bovina and' Mr. Wilentz Guernsey. telephoned the Director of the of Public Affairs Department for an and was adjournment referred to Goodman. There was some difficulty about adjournment and Mr. Wilentz told Goodman he would his office on stop to the way He did and at that hearing. so time he asked Goodman to if see decision could be not reserved “until I see what there is *7 to it and I can it.” perhaps adjust Goodman said he would to have try decision reserved and he did tell to hold Connolly his decision in abeyance. At the Dr. Shaul hearing of Scho- harie pointed out that his had been organization for approved ten approximately and was years to meet all ready regula- tions of the Mr. Department. Wilentz expressed the view that there was not too serious here “anything that couldn’t be corrected” and said “In Connolly most instances that true.” Roman that “in a short agreed of time” the period could company get objectionable items corrected. At said, close “I’ll hearing Connolly hold the decision for a while'—then contact Mr. you.” Wilentz again stopped said, at Goodman’s officeand “I would like to a chance get this out and before straighten there is official action taken I like would to be notified and me an give opportunity.” Nevertheless, Goodman directed Connolly exclude Scho- harie, 26 a on letter of May exclusion mailed, and on the same Middletown was day advised of the exclusion by telephone.
Prior to Schoharie’s exclusion Eisenstein called Mr. Mather, of Middletown president and they made an appoint-' ment to meet on the morning Friday, May 26. They met at Eisenstein’s office and Eisenstein told him that “You are in trouble at Newark.” Eisenstein had photostatic copies of sediment tests and what Mather understood to be a tran- held 24. Eisenstein script May Schoharie hearing retained and indicated that that a new be suggested attorney he would recommend one after over during thinking weekend. Mather this Eisenstein that Mr. requested keep May conversation to himself. Early Monday morning, Miller, Mather that he had called, told Mr. found Newark, and that the attorney to be very satisfactory fee $7,500 $3,500. would Schoharie be for Bovina decided Bovina not to but participate Schoharie agreed the fee and Mr. Mather advised Eisenstein. That so after- noon Dr. Shaul of Schoharie went to Miller’s office. He testified that he made an effort tell Miller had taken what he “but didn’t to be much interested and place appear very asked me if I $7,500.” the check for Dr. Shaul brought $7,500 delivered the check for to Miller and his obtained After left, Dr. Shaul Miller called receipt. Goodman on unlisted home Goodman said he would reinstate Schoharie. That Goodman called Powell evening and told him to Schoharie that it had notify been reinstated. Powell called immediately Shaul, Dr. was unable to reach him, but did reach Mr. Mather and notified him of the reinstatement. Mr. Mather testified that when Powell called him he said he was “at the direction of calling Assistant Health Commissioner Connolly.” testified Connolly when he returned to his office on him May Powell told had reinstated, Schoharie been that he was to send a *8 letter of reinstatement pending reinspection, he did so immediately.
In his trial, before testimony Miller, who had no prior connection with the milk business, admitted that Eisenstein called him on 26, Friday, May Schoharie; about that Eisen- stein had him Goodman; told to call 30, and that May on after Goodman had reinstated Schoharie, Eisenstein prepared him a gave typed memorandum on the Schoharie matter which he later left at Goodman’s office. The contends, State with basis, that examination of this short memorandum dis- closes that it involved no significant research or other work
578 On record. for merely was prepared purposes “consultations, inspection
June Eisenstein Miller for billed Cobbleskill, New Co-op, work and briefs County Schoharie that sum to $7,000 and Miller paid York” the sum of 5. Eisenstein Eisenstein check dated June On June $4,300 dairy companies, drew to various checks aggregating and cashed their names without their knowledge, endorsed the checks.
Queensboro is a New York which operates corporation 1950, Brier Hill. In May, at Canton and plants Steamburg, Queens- and Brier Hill were excluded and plants Canton and member of attorney boro retained Mr. Eapelsohn, with Newark law firm. He conferred on several occasions 25, Goodman to have the On plant reinspected. May seeking Queensboro that a would be notice sent to hearing 31, 1950, held on to its most May respect important Queensboro plant notified Mr. Steamburg. Eapelsohn who in turn called him follow- Goodman spoke again At that time he May on 1950. told ing hearing he Goodman that had been advised that the were in plants However, sanitary condition their reinspection. sought Goodman, on instruction from a letter was under date sent Queensboro- 7, 1950, of June it was notifying being removed from the list “until such time as it meets approved our State and City requirements; and found reinspected in a satisfactory condition aby representative of our Depart- ment and reinstated.” In the meantime had told Tolins, business, Mr. who was in the dairy equipment Queensboro’s Miller would handle matters the Newark before Health Department $10,000. When Mr. Tolins re- Queensboro's this to ported he representatives was told “to Queensboro it.” The treasurer of forget testified that when left the they hearing May they not concerned because Inspector who had made the Manning, inspection, had exclusion; not recommended however, they became concerned and alarmed” “quite when they received notification exclusion on June and called Mr. Mather who gave *9 visited They Miller. them name of the defendant fee would that the told that and were Miller’s office afternoon matters. Hill and Brier $10,000 for the Canton be Steamburg, fee Miller that said the course of the discussion During would $5,000 Ordinarily was to be a plant. “supposed bargain Hill will Brier into $15,000 but we throw be to lower $10,000.” When asked only you and we will charge you do for said, “I something Miller would like fee his testi- Miller, in am boy.” I I an errand only but can’t. him Eisenstein had told trial, admitted that before mony $10,000 that during fee and that the was to advance be Queensboro’s made he representatives with conference the conference no and received no papers. Following *10 he sent Blum testified that when pressed to Cooperdale. said, Miller Miller for action some time after the hearing “It is to take a little are getting going longer; things is Somebody hot—we can’t do it as fast as we planned. - too much.” talking calls many State introduced evidence of telephone calls,
between Eisenstein and Powell distance including long some late at many and substantial toll night, involving evidence, and there was in addition to that charges, other outlined, hereinbefore which bore on the activities generally of Food in 1950 with particular and Division Drug reference and exclusion reinstatement of out-of-state milk and concerns the relations of the defendants thereto. After their motions for were denied each of the acquittal defendants testified on his own behalf and denied that there was any to Goodman and conspiracy involving payments Powell of or either Miller he them. admitted that received Queensboro $25,000 Schoharie, from aird his Cooperdale; that he position was acted at law solely as attorney that his remissions to Eisenstein were for his as a services milk expert. $16,075 Eisenstein admitted that he received $17,500 from the Miller; first his was that paid position acted he as a milk solely and did not remit or expert expect to remit any moneys Goodman and Powell or either of them. Goodman admitted that he ordered the reinstatements upon Miller; receiving his position was that his action was dictated solely by the merits of Miller’s and that he knew requests of the payments nothing to Miller and did not receive' or expect to receive any portion thereof. Powell admitted that he had Queensboro directed or advised exclusion of Schoharie, Cooperdale; his was at position that he all times acted in faith good in the course of duty without any knowl- of edge to Miller and payments Eisenstein or any expecta- tion therein. At participation the close all of the testimony defendants renewed their motions for acquittal. denied, These motions were the trial court charged jury and the returned its verdict of against general guilty each of the defendants. of the close State’s moving acquittal
case the defendants rested the fact that there heavily upon direct no that there had been an testimony establishing Powell, to which Goodman and or either agreement pursuant them, were to share in the received Miller and moneys Eisenstein for the reinstatement milk It dealers.
true
direct;
the evidence was
circumstantial
not
but as
stated,
has
been
oftentimes
circumstantial evidence
*11
is not only
certain,
sufficient but
also be “more
may
satisfying
and
O’Connor,
than
persuasive
direct evidence.” State v.
134
536,
Donohue,
L.
N. J.
539
Ct. 1946); State v.
2 N. J.
(Sup.
381, 389
Evidence
(1949).
Wigmore,
ed.
(3d
1940),
Cf.
true,
401.
It is likewise
as
p.
the defendants
suggest,
certain actions
each of the
defendants when isolated from
the main circumstances and the rest of the case may perhaps
innocent,
that is
appear
but
not
significant
undoubtedly
ease
appears
every
of criminal
The real
conspiracy.
before the trial
question
court at the close of the State’s ease
evidence,
was whether the
viewed in its
was such
entirety,
could
find
jury
therefrom,
properly
beyond reason
doubt,
able
that the four defendants had
corruptly agreed
extort
from the milk
moneys
companies for reinstatement of
Valenti,
their
as dealers.
approval
See United States v.
134
362,
F. 2d
365
C. C. A. 2
(2
cert. denied
1943),
319 U. S.
761, 63
87
1317,
S. Ct.
L. Ed. 1712 (1943); United States
v.
168
Spagnuolo,
768,
F. 2d
770
2
(C. C. A.
cert.
1948),
denied 335
69
824,
U.
Ct. 48,
S.
S.
he remitted the bulk of fees to Eisenstein for Iona his fide services as milk and that he effectuated reinstate- expert ments simply by prior arrange- without fact, ments made with Powell and been Goodman. having Miller was a relatively without knowl- attorney young whatever the milk and he rendered edge industry actually nature; no substantial services of Eisen- similarly, legal stein, familiar with the milk industry, actually although rendered no substantial services as a milk expert. The posi- calls, tion of all of the defendants was that Miller’s telephone more, without about the immediate reinstatements brought and that Goodman and Powell knew about nothing to Miller Eisenstein and were not payments to partici- therein. The pate pertinent testimony hereinbefore out- lined the many items, other including, among Goodman’s conversation with Powell’s Morgan, displacement Morgan and Powell’s thereafter, activities his relations including Eisenstein, and Goodman’s immediate reinstatements, calls, without Miller’s prior reinspections, following con- trast to the earlier efforts of Messrs. Wilenfz unavailing to the Kapélsohn, pointed directly rejection of the defendants’ and the position, clearly to do privileged so. The motions for acquittal renewed by the de *12 fendants at the the close of entire case but their situation was no than at the stronger close of the State’s case. On the their contrary, on their own testimony behalf contained and, evasions and inconsistencies their notwithstanding ex be said have planations, may strengthened the infer ences which the could draw jury properly State’s evidence. we find no Accordingly, error the trial court’s Bricker, denial of the renewed motions for acquittal. State v. Jr., Gammarata, v. State supra; supra. Although not stressed at the argument appeal, contention was ad the, vanced in one of the briefs that the verdict was against the evidence. The rule is well of weight settled that this set aside a verdict in jury court will not of a absence clear
583- result was the of that the verdict and convincing showing Rule mistake, See or partiality, prejudice passion. ; Pierce, No 252, v. J. 268 (1950). 4 N. State 1:2-19(a) hesitancy made and we have no such has been showing rule, the verdict that, within the aforementioned concluding may be disturbed. not alleged trial
We of the come' now to consideration their support ap relied the defendants of by errors upon Goodman, as that charged The lower court peal. Affairs Department of Public Deputy Director wore Health, officers Powell, Department in the of inspector 2:127-1) statute (R. within the of extortion S. meaning coroner, sheriff, magistrate, which that provides' “Any judge, his who shall color constable, by or other officer of jailer al take fee reward not office, receive or or whatsoever mis office, law shall be of a guilty lowed for doing The defendants neither Goodman demeanor.” contend that this nor was an “officer” within the of contemplation Powell not be of they guilty statute and that could consequently extort. conspiracy Health, v. 82 N. L. Fredericks Board J. of court, 1912) the an while
(Sup. holding inspector Ct. of health is the of appointed by local board incumbent office, view “An is a office expressed accepted place law system in a created or recognized by governmental authority either or delegated of the state which directly performance to the incumbent thereof continuous assigns Bd. Thorp of certain duties.” See also v. permanent public Newark, Industrial Education Trustees Schools of of J., it is N. N. Within the (1951). foregoing J. and Powell held R. S. public clear that Goodman offices (see 40:72-8), R. 26:3-19; they consequently S. in the absence in R. anything to be deemed “officers” S. a narrower evidencing legislative meaning. 2:127-1 that since the statute enumer specifically defendants urge with the out the judicial ates connected persons “carrying its other be reference to officers should likewise process,” *13 584
limited We fail to those connected with judicial process. to perceive any legislative such restricted Extortion purpose. at that money common law of signified taking beyond allowed by (2 law officer under color of his office Burdick, 275; Criminal Chitty’s Law 1 Law (1819) of Crime and our extortion act which had its (1946) p. 392) at least as origin early 212) as 1796 Laws (Paterson, (1800) has been said v. to reiterate the common law. See Loftus State, 183, 19 A. 184 E. A. In v. (N. 1890). J. Lane State, 362, 47 N. 1885), J. L. 363 Ct. (Sup. reversed on other 49 L. & A. grounds (E. 1887), N. J. 673 Chief Justice stated if Beasley the defendant there did not come within enumerations in the specific “certainly extortion act he was embraced under the which general description is so com prehensive that no the state official of can claim to stand outside its circumscription.” be; of hind that as it is should extortion is all in abhorrent to who believe government decent and the broad thereof statutory proscription rightly applied officerswhatever be the nature public of their duties. Thus State, in v. 8 N. Conway J. Mis. R. 406 Ct. (Sup. 1930), a the conviction of building inspector for extortion sus Barts, tained State N. L. v. J. Ct. (Sup. 1944), affirmed & 132 N. J. L. 420 A. (E. 1945), conviction aof New York detective for extortion committed New State, Jersey was likewise sustained. v. Kirby Cf. 320, J.N. L. Ct. (Sup. 1894). light of in the case, evidence record at the close of we have con cluded that the lower court properly charged Goodman, as Deputy Director the Department of Public Affairs, Powell, inspector the Department Health, within R. 2:127-1. S. officers
The defendants next contend there was preju dicial error in the lower court's treatment of evidence relat made ing by Eisenstein to 3-3232, Market general switchboard Newark Hall. City7 In examining a representative the New Telephone York Co. the prose cutor asked him toll ticket dated December
585 from 5-2093, 3-3232, Walker Market Isadore Eisenstein. to Hall; the Newark it was and City introduced produced evidence without Several other tickets of similar objection. nature were then likewise in evi- produced introduced dence without Counsel for one of the defendants objection. then referred to “a the fact that Market 3-3232 was general in the exchange City Newark Hall” and the said prosecutor “that’s right.” Several more tickets of similar nature were introduced in evidence without Thereafter there objection. was taken and objection overruled more tickets of similar nature were introduced in evidence until adjournment court for the day. When court reconvened the following trial morning, the in the announced judge jury’s presence that upon reconsideration he was satisfied that the telephone time, calls “at least at are this be- properly not evidence cause it rise might give to inference that is not justified from the mere fact that the central exchange City the Hall was called. I am therefore them the to strike going evidence.” Later the in the morning judge jury’s “I presence said, will strike from the evidence for the present
and have them remain the for identification calls that were made Hall City to number Market 3-3232.” then to list number the judge proceeded exhibits he was remark, striking concluded “I indi- might cate that when this it is unfortunate jury happens be- cause the hears this then testimony stricken, it is and when it is is stricken evidence out of the case and it a it; mental effort strictly you words, in other forget not consider it in at all.” evidence Still later in denying motion the he judge pointed out that would be to “con- glad sider further saying anything subject that counsel me may writing.” submit to further was then Nothing forthcoming.
The State contends that the calls general exchange Novick, at the Hall were admissible City U. S. v. 124 (cf. 107, F. 2d 1941), C. A. 2 (C. cert. denied 315 U. S. 813, 86 L. S. Ct. Ed. 1212 (1942), rehearing 913, 86 L. (1942)),
denied 315 U. 62 S. S. Ct. Ed. are issue we have on that since but we to pass no occasion Buie error. See prejudicial satisfied there no ad tickets were place, many 1:2-19. the first later Eisenstein objection mitted into evidence without made many testified that he affirmatively In view of Hall, to relatives. the City although allegedly whether the admission be doubted foregoing may *15 Eisen tickets, indicated calls from additional which simply the defendants. Hall, the caused harm to any stein to City trial event, we that the 1:2-19. In believe any See Buie the evidence com action in expeditious striking judge’s and it the case cor about removed from effectively plained the, proceeding. have into crept whatever error may rected 135, N. J. 149 4 Parking See Rempfer Corp., v. Deerfield when the It without that court significance is not (1950). was none writing invited further corrective instructions the the It is true that at of entire case then submitted. close 6, by submitted the to number following request charge, was : Goodman may you nor infer “The is instructed that not find as fact telephone calls the in this Eisenstein’s of evidence case City Ira to Hall were made to Goodman.” Newark however, the was too broad and
At that juncture, request In the first referred to “evidence place denied. properly the was no in this case” whereas stricken evidence longer have place jury might properly case. the second inferred, all then from the evidence totality including it found the to the circumstances from which conspiracy numerous telephone City exist Eisenstein’s calls cross-examination, him Hall, testified to on Eisen- by had Hall. The contention is City stein called Goodman advanced Eisenstein’s cross-examination respect went limits to the beyond proper calls telephone preju- defendants; we find no dice of other substance this con- awas defendant tention. Eisenstein party testifying own behalf view of the nature of the conspiracy full charged prosecutor made as to the properly inquiry calls to Hall. Prout v. Bernards telephone City Cf. Co., La nd & Sand J. L. A. (E. N. ; Grover, 1909) State 104 N. v. J. L. Ct. 1927). (Sup. We have concluded that treatment lower court’s evidence made Eisenstein to relating telephone Market 3-3232 error, did not constitute that the prejudicial denial erroneous, of Goodman’s number 6 was not request and that Eisenstein’s cross-examination with to his respect telephone calls to Hall did City not exceed limits. proper
The next contention advanced is that the trial court erred in into evidence and to strike toll admitting refusing tickets to several relating calls made Eisen stein to 2-0940, Mitchell the Newark of Board Department of Health where Powell was employed. Eisenstein and Pow ell were close friends for visited many years, socially had numerous telephone conversations both local long distance. Eisenstein in his direct examination testified that during period of the he was alleged cmrspiracy represent various milk ing and in companies that connection made fre *16 quent calls Newark Health Department and had “in timate contact” with a particular employee of the Depart-. ment, namely, Powell. Powell testified that he had numer ous telephone conversations with Eisenstein and that they may have included calls to the Health. Board of In the light of the we fail foregoing to see how the complained evidence about could be deemed to have prejudiced any of the defend ants in his maintaining defense upon merits. See Rule 1:2—19.
The defendant Powell contends that the trial court erred in admitting S-67, into evidence Exhibits S-80 and S-82 which were the longhand reports by Inspector Roman Schoharie, relating Cooperdale Onatavia and Cooperdale Skaneateles. Connolly’s testimony S-67, disclosed that Roman’s him longhand report Schoharie, on was given to Roman; course regular Connolly went over the report with Powell exclude; and Powell told him thereupon Connolly sent notice hearing to Schoharie. The report was a relevant item in the chain of events which led to the proceeding Schoharie; it was against of the dis- subject cussion between and Powell Connolly which concluded in Powell’s instruction to Connolly Schoharie excluded be and was admissible evidence without to the truth regard statements contained. It was identified adequately Connolly we find no merit in Powell’s contention the prosecutor should have called Roman to it. S-80 identify and S-82 were introduced in after testi- Connolly evidence fied that they were Roman’s reports Cooperdale Onatavia and Cooperdale Skaneateles, that he had discussed them with Powell, and that Powell had told him to exclude. As in the S-67, instance of they admissible without Roman’s testimony. fact that the recommendations the close of the reports have been in different may ink and that later typewritten report by Roman on Schoharie concluded with a different recommendation in nowise affected the pro- priety of the admission of the exhibits. In his requests charge numbers 21 and Powell sought to have the 'trial court instruct that certain jury inferences might not be drawn from the aforementioned exhibits and dif- ferences between the inspectors’ longhand reports their typewritten We reports. consider that the trial court’s charge dealt fairly adequately the applicable legal prin- and the ciples basic factual controversy, that there was no occasion for singling out individual evidential items such as comment, for further reports and that the requests were properly denied.
Finally, Powell complains about portion of the trial court’s charge and its refusal to charge set forth his number request 7 that if Powell performed only duties as set forth the must acquit “even if someone else took of these duties in advantage furtherance of a conspiracy.” *17 The must in charge be read its entirety Tansimore, (State v. 3 N. J. and as (1950)) thus read it was correct. The portion the to dealt charge objected appropriately with the admissibility conspira' acts and declarations of tors in established, once the no conspiracy was conld wise have the misled The matter set jury. request forth number 7 to the extent that it was proper adequately covered in the and need not have been be charge repeated Tansimore, cause of its embodiment in the request. State v. supra. And if the «request contemplated Powell could not be if guilty of conspiracy only to extort acts performed by him erroneous; were part of his then it was it is duty, clear if, found, a Powell was party corrupt agreement between the defendants the tak involving ing division of the milk for rein moneys from dealers statement of their approvals, he was guilty of conspiracy extort despite suggestion that concurrent were actions O’Brien, in the performance of his official duties. State v. Cf. N. J. L. Ct. 1947). (Sup. Erom our examination of the entire are satis- record we fied that the defendants and each of them were tried fairly and found guilty upon evidence and that no adequate legal errors to their prejudicial committed rights during course of the trial. convic- Accordingly, judgments of tion are
Affirmed. Wachenfeld, J. ex- (dissenting). briefly following presses views me my bringing opposite conclusion.
I am in accord much of the includ- majority opinion, ing that there finding was no error to direct refusing judgment acquittal and that con- verdict was not- trary to the weight evidence. lies in the My difficulty admission of and the certain failure charge thereto, reference and certain after the cross-examination calls had been stricken from the record.
Goodman claims error in the admission of telephone calls allegedly made Eisenstein to the Hall City and the in- striking out of such adequate testimony. He contends the *18 the lim- proper Eisenstein went beyond cross-examination of related evidence its, as it dwelt prejudice, upon court, and he the by which had been stricken from the record the court’s by 'the effect was increased urges prejudicial refusal as to charge requested. 3-3233, the all made to MA
These calls were telephone Hall, in their the general City impropriety exchange with one up admission is as were not connected urged they or more of the defendants. calls, and de-
Efforts made to bar the the counsel whether fense at the time as to lawyers inquired pointedly or the would sub- represent they not would prosecution A long be connected with the defendants. sequently up in which all made the same demand ensued counsel colloquy the but the was never answered inquiry specifically prose- cutor. He should be gave many why testimony reasons admitted a contending: but would not direct give reply, a “These that have been taken here show pat- calls case, tern or relation of calls back forth this out of town, state, dates, out tie in with with the they of the critical dates we have been about for ten talking days.”
Despite court, after string objections, expressing doubts, evidence, grave admitted the “These finally saying: are the calls that me only concern. Aside from them I give think the evidence is admissible clearly to show conduct among defendants. I come to some hesitation about However, Hall.- these calls to the I think the City situation has been made clear to the that the City number Hall, to, has been referred is the which general exchange Hall. that, And as understand I will City long they overrule the and note the several objection objections.” Market 3-3232 was the
Admitting general of the exchange Hall, City Newark the Prosecutor theorized that the evidence to was offered as inferential objected being proof of conver- sations between Eisenstein and Goodman.
If the “concerned” about admissibility court and had them, “some hesitation” about that doubt of innocence the presumption follow would ordinarily the defendants. in favor of have resolved should been calls, on the follow- court, after admitted having ruled the It then conclusion. opposite came to ing day 23 toll struck the and accordingly be stricken evidence should the City the calls to exhibits, evidencing marked as call slips *19 identification for retained for Hall, the were slips but is referred This is what to. put use be they might future action.” an “expeditious opinion to in the majority to the jury “I indicate so, might the said: court doing the jury because it is unfortunate when this happens it stricken, and when it and then testimony hears this it is the case and taken out of the evidence is is stricken words, it; in other to you forget a mental effort for strictly all.” it in evidence at not consider bemay evidence inadmissible receiving error
Generally, v. striking, Rempfer withdrawal or its by subsequent cured error when 4 N. J. 135 but Packing Corp., (1950), Deerfield is or suffice, not striking may its damaging be so may must be awarded. a new trial “* st st impressive that is so the thus admitted where evidence court, appellate opinion is not removed from its effect of the
in the by withdrawal, jury by subsequent instruction or the of the its minds it, by disregard judgment on account will be reversed the court to Lodi, Boniewsky N. J. L. 323 Home v. Polish admission.” its 1927). (E. & A. ruled improper declared
The evidence subsequently all and over- day with the remained jury out the court by it them- amongst have discussed well night they might akin that the calls The prosecutor’s theory selves. impres- was most Eisenstein and Goodman between
meeting Goodman, directly it contradicted sive and because important talked Eisenstein. testified he never who testimony subsequently the effect of improper Discussing record, court, in State v. Sprague, the stricken from said: Ct. 1900), N. J. L. (Sup. repeated “It been had admitted to the after strenuous ob- jection defendant, fully by on behalf of the and had been heard them. * * * gone deliberately fully jury, It had to the and had been consideration, perceive taken their I cannot into how harmful its prejudicial by having effect could be obviated or cured stage proceeding merely formally evidence at this stricken
from record.” Nor I can subscribe to the majority’s conclusion that the jurjq “totality from of the evidence all including circumstances,” had the conclude Goodman right talked City to Eisenstein Hall. was specifically It denied and testimony, other than the there was not stricken a word support it.
No cloak is magic supplied per- accusation which mits a jury to draw any inference desires from the testi- mony submitted. A or be inference must spring lawful logically to a proven fact. r.elated
If there was error in this its was height- regard, prejudice ened cross-examination which prosecutor referred to the same had which *20 been cross-examination, ruled out a of evidence. In lengthy these calls were made intermingled by others Eisenstein which he admitted, admission, and after many this in gaining * “* * instances ask: prosecutor would did or you did you not call the Newark talk City Hall and for 4-6/10 minutes”? and “Did at 9 a. m. New- again: you :31 call the ark City Hall and talk on, minutes”? so 3-3/10 The many occasions. of the purpose is cross-examination only too obvious. It was improperly back to the bringing jury the same calls which telephone had been ruled inadmis- sible and had been stricken from It record. could have no other purpose excepting to impress upon the minds of the jury, by reference to testimony out, ruled an infer- already ence not warranted evidence. by legal
If doubt remains as to whether or not the error was prej- udicial and it harmful, the failure dispelled by court charge to the defendant’s sixth to request “The charge: a infer not find as fact nor may are instructed that jury you tele- in this that Eisenstein’s the evidence case any Hall were made to Ira Good- calls to Newark phone City entitled circumstances, the defendant was man.” Under the to that charge. subse-
The evidence difficulty admitting encountered erroneous, in its being determined be quently resulting record, and vital. The major- stricken from the is realistic All of it must be removed.” ity “effectively admits opinion the court the place upon obligation cases adjudicated eradicate it from the minds of endeavoring a having tendency accomplish method employing every this end.
It must ad testimony illegally clearly appear mitted was its admission so eradicated from case could not have affected the accused. Bullock v. injuriously State, 65 N. J. L. & A. 557 (E. 1900). a few short,
The couched simple request charge, and its words, have been an aid in this plain respect would refusal, think, I was error. trial, considering potentialities “In a of a con criminal the serious
viction, required a defendant not be to contend with inadmis should may evidence, appears prejudicial sible a effect where it have upon jury.” Dietz, Super. (App. v. a court State 5 N. J. or 1949). Div. So, too, I believe in the admission error committed and refusal to strike from the record 2-0940, made the Newark Health to Mitchell Hall were struck but the Department. calls to City court refused to strike those made to the Health Department. are there was They identical fact. each circumstance switchboard; central in each there were and diver- many *21 in each there were gent departments; many employees executives, one of whom could have received the calls Powell, in of such evidence question. against admission and constituted reversible error. my opinion, prejudicial
For these I am compelled reasons to the conclusion the defendants manifest suffered or must wrong injury vote to reverse the below. judgment Vanderbilt,
For Justice and Justices affirmance —Chief Heher, Oliphant, Burling, Jacobs and Brennan —6.
For reversal—Justice Wacheneeld —1. MILLER, IN THE MATTER OF EDWARD T. AN ATTORNEY AND AT COUNSELLOR LAW. Argued June 1952 Decided June 1952. Mr. Frederick Vonhof, C. for the order. Laird,
Mr. John A. the respondent. Per Curiam. The name of the will respondent be ordered stricken from the rolls of attorneys counsellors law for the conduct set forth in this opinion of court in State Goodman, New v. Jersey N. J. 569.
For disbarment —Chief Justice Vanderbilt, and Justices Oliphant, Wacheneeld, Burling, Jacobs and Brennan —6.
Opposed—-None. notes Connolly instructed Miller called Goodman Goodman was done Queensboro reinstated, and that was notify conference, namely, following on the by telegram morning memorandum was prepared 9. Thereafter short June Queensboro $5,000 -to Miller to Goodman. paid delivered by additional paid Miller at the conference of June sent $5,000 Miller on June 13. On June Eisenstein $4,500 Miller’s check paid which Miller a bill $4,575 another which was likewise and later sent bill for de- Miller’s check. These checks from Miller were paid by Eisenstein and on dates Eisenstein subsequent posited by named endorsed drew the names of checks payees, cashed their the checks. without payees knowledge, is a New Cooperdale York at Skane- company plants Onatavia, ateles and It that a New York. received notice be held secretary would on June and its hearing Mr. Miller Blum the defendant telephoned days several prior did close, thereto. Miller not attend the and, at its hearing exclusion of was announced. there- Cooperdale Immediately after Blum met him Mr. Miller who told the fee would be $7,500. Miller admitted in his trial testimony before $7,500 had fixed this fee that he expected $7,000” Eisenstein would receive Blum “probably of it. paid Miller and fee to no official communication was thereafter