*1 PLAINTIFF-APPELLANT, JERSEY, STATE v. FRAN OF NEW WALLS, HUTCHINS, “HUTCH,” CIS ULYSSES A/K/A HERNDON, NORMAN PRINCE AND ERNEST A/K/A “JABO,” DEFENDANTS-RESPONDENTS. Argued April 21, July 7, 1964. 1964 Decided *3 Brudnich, Mr. William C. Assistant Prosecutor of Bergen County, the cause for W. argued plaintiff-appellant Guy (Mr. I). Andora, Prosecutor, Mr. attorney; Anthony As- Galissij sistant Prosecutor of on the Bergen Countjr, brief).
Mr. A. counsel, James the cause Major, for de- argued & fendants-respondents Major (Messrs. Major, attorneys). The the court was delivered opinion Walls, Defendants, Herndon, Hutchins, J. SchettiNO, others, and Prince two were (and Gramaglia Epsaro), Foti, indicted for with” Peter not named “conspiring together a defendant, to conduct a between lottery January 10, April in violation of N. J. S. 2A:98-1 2. The indictment against was on dismissed Gramaglia State’s motion for nolle prosse and motion for ac- Epsaro’s quittal was granted at the close of the State’s case. The re- maining defendants were convicted all by jury and appealed.
The Division, in Appellate an unpublished found opinion, there was sufficient evidence of a convict, conspiracy but reversed on the grounds that certain actions and statements of the trial court returning jury reconsideration constituted plain error and that defendants’ motion to sup- press evidence taken from one defendants, of the Prince, should have been granted. On the State’s we petition, granted certification. 41 N. J. 307 (1964).
On the trial, first day defendants made a motion to suppress evidence seized under a warrant for the search of the residence of defendant, Prince. Defendants’ motion was de- nied as their objection to its admissibility during trial. (We note that R. R. 3 :2A-6 such requiring motions to be made before trial was after this adopted trial.) admis- sion of other evidence all against four defendants was objected to on the that a ground conspiracy among five had been established State. Defendants’ motions to acquit on the same were ground also denied.
The State’s chief Foti, witness was the person with whom defendants allegedly He conspired. testified that in June or July he asked defendant Walls whether he could write numbers, and Walls told him he would let him know. The day Walls told him following he could start and him supplied with the necessary gambling paraphernalia.
Foti’s description operation gambling was as follows: would come People to his store and select a three digit number represented bettor’s choice of what would be the last three digits the total amount of the pari-mutuel betting a specific race track. The odds were 500-1. Foti would make three of a copies slip, the date writing on the top and the *5 the customer
amount of total tbe and the give the wager, slip awas retained one of which white He two duplicate. slips, “bank” represented which went to the yellow copy gambling started Walls, Foti The after Foti day and the other by lcept. 2:30 came store at around numbers Walls to the writing p. m., affirmative 3 :00 work received an ready, asked the was containing him an Foti, from who then gave envelope answer following day, the On the the from yellow slips daily play. an was described tape Walls machine brought adding each a ribbon. ribbon the trial as On this was during printed and at the bet made the amount thereof bottom with would be these were totalled. total ribbon Under figures Foti, and and payable listed commission credited 25% If the showed the balance amount due Walls. ribbon was the Foti, him; it if it Walls would moneys give coming Walls, In case the showed due Foti each money paid him. bets. ribbon tabulation of the represented previous day’s day, Sundays This was followed each procedure excepted. came In 1962 defendant Herndon to Foti’s store January job. and told Foti he was over Walls’ He did so until taking time end of when Hutchins February, some at the defendant over. and were took under Herndon Hutchins operations same as under Walls. days After six during March, first week in Prince to Hutchins defendant brought over, Foti told Foti that Prince was which he did. taking 4, 1962, Foti arrested on Until con- April operation i. tinued minor variations e. Prince would appear and transact facet morning money of the operation p. would 2:30 “someone else” about or 3 :00 M. appear the yellow pick up slips. 4, officers,
On armed with April police a search war- rant, entered Foti’s store certain seized which were items S-l, identified Foti as follows: numbers (marked books S-2, S-3, and used to record customers’ S-4), bets, numbers which were his person; tally found on sheet (marked S-5), delivered to Foti Prince on allegedly April 1962 prior *6 raid, to the also found on his identified numbers person (he S-5, bets recorded on bets from machine as adding tape, S-l, his numbers book from a business card of S-9); also to defendant Prince which the latter had Foti allegedly given (marked in cash S-6); lottery receipts $37' representing 4, on collected also found on Foti’s April person (marked S-7); three “cut” cards to (marked S-8), allegedly given him by 29, Prince on March 1962 “cut” cards numbers (the e., odds, had lesser i. of 500 to a num- 1); to 1 instead bers Foti to one Felton Lee slip (marked S-9), given Willis, bettor, 3; books, (marked on and numbers April 4, 1962 S-16), Prince to Foti on to allegedly given by April replace S-3).- water-soaked books (S-2 these materials in evidence Initially were admitted Prince because the trial court found no con- against proof but later it reversed that the spiracy this State ruling holding had all produced sufficient evidence of defend- conspiracy by ants and admitted them all defendants. against
The warrant for the search of the residence of Prince was served on Prince at his front door at 11:15 A. m. about on 10, 1962. None of April the materials seized was found in when, Prince’s residence but came from his on they authorities, orders from the Prince his raiding emptied were six pockets. They $752.24 business cards of Prince and in tens, fives, ones and some taken from Prince’s change These, jacket pockets and his wallet. marked in pants S-14, evidence as S-ll were through admitted into evidence Prince. only against Division Appellate first of defendants’ con- disposed
tention that the trial erred in court the indict- dismissing ment at the end of the State’s case for lack of proof The same alleged conspiracy. contention is made to us. De- effect, fendants that if the argue, of Foti with each dealings of the defendants can be called a conspiracy (which defend- ants four there were deny) separate conspiracies and not the indictment; one in the charged that the State was required four men agreed these words conduct that prove by are with which conduct a as that is the offense lottery lack and that there is and which must be charged proved; Division the Appellate We with proof that offense. agree conspiracy one there was sufficient evidence holding that and all Foti defendants. involving Co., Restoration noted v. General recently We have State Inc., that: June 1964) N. J. 366 (decided conspiracy doctrine has coincided with “The use of increased activity century growth seventeenth since the of criminal identify morality. tendency contemporary ‘Crimi- law criminal (1959). Conspiracy,’ con- L. Rev. Several factors nal 72 Harv. including corporate growth public concern with the tributed groups provide practice of and the existence of criminal *7 crime activity corrupt a convenient forum for the birth of additional group envisioned when the was formed. gist of [of As Weintraub has stated ‘the the Chief Justice offense conspiracy] agreement.’ LaFera, v. [35 is the criminal State N. J. conspiracy requires act, 75, (1961)]. 86 While the statute an overt satisfy agreement requirement the alone can the act because intent agreement. merged Carbone, in and act can be the State v. 10 N. J. 329, (1952).” 336-37 a agree of proved conspiracy State making :98-1, -2. 2A ment and Walls to N. J. S. by Foti violate do that a conspiracy We not feel that State has to prove in 1961 Foti first was all five June or when agreed July to Carbone, 329, 10 N. 338 to In Walls. State v. spoke J. we stated: (1952), * * * all enter into the con “But it not essential that is :: * * spiratorial agreement one same time. and the ‘What always say, has is to be ascertained is the same matter: it true * * * pursuance of in a that the acts the accused were done purpose in [citation] criminal held common between them?’ One who
joins
conspiracy
equally guilty
a
after its formation is
with the
* * *
original conspirators.
Lennon,
(1949).”
N.
v.
3
J.
State
337
State,
the whole was concocted before he became an associate. connecting them, aiding himself with in the their execution plan, adopts prior declarations, their acts and far at as so least part gestae, own; so, constitute a of res as as much his present step carrying he had been and assented each successive consummating out and the fraud.” record, As we view the there one was conspiracy, the original Thereafter, one between Eoti and Walls. in exe cution thereof Foti Walls acted January through when Herndon over took Walls’ performance successively part Walls’ the agreement performed by Hutchins and In Prince. order to establish the a series conspiracy, of overt acts having natural connection admissible. State v. Yed wab, N. J. 367, 378-9 Div. Super. (App. 1957), certif. denied N. J. 550 (1957). From such acts jury could find circumstantial evidence approach v. Good (State man, 9 N. J. 569, 581 (1952)), continued conspiracy to function with all four defendants in the suc participating cessive operations thereof. The could infer jury also that the *8 whole series of illegal acts resulted from associated action on a based prior understanding. conclude,
We as did Division, the Appellate that the total effect of the and proof the State all giving legitimate inferences therefrom indicated the a sufficiently existence of and the conspiracy thus case had to be submitted to the jury. Wharton, Criminal (12 1955), Evidence ed. 180. Cf., § Fiorello, State v. N. J. 80, 90-91 (1961).
The Appellate Division next considered the action and re- marks of the trial court when by jury notified the of a dead- mandate to tbe Contrary
lock after four hours of deliberation. “im it is 457, that v. 19 N. J. Pontery, (1955), of State numerical stand ask explicit for a trial court “to the proper” care which here “I don’t court said of the the trial jury,” ing the which way to know and I don’t want voting are way you is, how know what vote your I would like to balance is but 1. the was 11 to It told that vote are divided on it.” you to was all it wanted that that trial court after remarking immediately stated: know “* * days being you *, have tried case been several the has you consider, really had four cases and have like four defendants to said, you Court, lengthy charge have that has been the all
only for four hours for and deliberation all that consideration had you plus your had so think when lunch X and sandwich time coffee your require you go for I back and continue deliberations should to hour and what the is then.” at least another see situation an these objection all other defendants joined Counsel for We with the counsel. by agree remarks defendant Wall’s that: Division’s comment Appellate objection just means, it but [the] what “It is difficult determine certainly complaint did trial court the indicate jury learning sending back after it stood 11 to made —that now pressure cautionary instruction, put unlawful on the dis without sending agree. colloquy that senter Nowhere in the followed jury thought expressed for deliberation was this back of the further court, jury discharged, and no asked be to the trial counsel that cautionary requested type instruction which was DiModica, (1963).” v. 40 N. J. 404 State that what was said trial We counsel agree was not to have alerted the court to the enough necessity it making to the lone he dissenter that should not plain abandon his his conscientious conclusions order scruples to arrive verdict, at a should do so if further argu the other convinced him. jurors Nevertheless, ment rule, Division error R. plain R. Appellate applied 1:5-1 it and reversed convictions because felt (a), when, *9 after they announce that holdout, there is one trial court sends them back instruction, without a it cautionary may to the appear dissenter that the him wants judge agree and will be displeased not; thus, does it is akin “closely to unlawful for it compulsion,” probably never for a easy juror alone, to stand even when he is con- vinced he is and it right must be much more very difficult when it appears him that his dissent be looked may upon with disfavor judge.
We disagree, however, with the of the application plain error rule in the trial. atmosphere this The dispassionate remarks of the trial court convince us that there was no coercive element therein which could be to have in- expected fluenced the lone dissenter an into with the remain- agreement jurors, ing his or her own against personal convictions. The Appellate Division also referred to that part Pontery (19 N. wherein p. we stated: 477) “It was well within the discretion of the trial court to return the jury despite they for further deliberation fact that had announced inability determining their to arrive at a verdict. And in whether discretion, judge properly inquire to so exercise his the trial could as jury predominant to disclosing or whether not the entertained a view without However, explicit what it was. to ask the numerical standing jury, here, encouraged as was done is not to be as judicial procedure. sound specific inquiry easily This suggested form of lends itself to apparent compulsion avoided, especially where, here, and should be judge jury the trial returned having for further after deliberation they ascertained that stances closely were divided eleven to one. Under the circum- present, any cautionary the absence of instructions was compulsion akin to Stern, unlawful as set forth in In re (1953).” N. J. 584 The Appellate Division stated: only way “The judge ‘inquire that we can think inof which a can jury predominant as to whether or not the entertained a view without disclosing by asking jurors what it split was’ is whether are
evenly. respect Supreme Court, suggest might With due to the we it inquiry, be safer not even make such a for it seems to us that it *10 may standing-,’ ‘explicit and giving- numerical an the invites answer judge said has juror the after numbers even blurt out the lead a want to hear them.” he does not the problem in to emphasize We at order length quote also to the but courts to the only appellate is not disturbing Appellate the by posed feel that the problem trial courts. We consid- further Poniery of requires in its discussion Division eration this court. by be adopted following procedure that the
We suggest verdict that a into the possibility when a trial court inquires the jury admonish should reached. The trial court bemay to conviction stand as they indicate how outset not to the very view. a predominant entertain or whether or acquittal the believes whether he only should be asked The foreman If deliberations. after further reach a verdict jury might might deliberations further then feels that the trial court the back verdict, jury send it should produce proper we of the one the effect instruction supplemental the Williams, : N. J. 481 (1963) v. in State approved “ jury duty juror, you the charge each while of now it is ‘I that verdict, give and deliberating upon attention con- careful its is jurors. juror testimony A of his fellow to the views on the sideration upon position stubbornly stand shut his ears not should jurors. may by takes, regardless It said his fellow what be of first objective your at a common conclusion to arrive collective should be you guilty, should and to that end innocent or whether that be duty upon your agree together is with calmness. It deliberate contemplates you by possible. verdict, shall The law that if is that you your views, possible, but shall harmonize discussion personal yield your purpose compromise, convictions for the divide ” arriving agreement.’ at an followed, the fears procedure expressed by If such we be may, hope, completely Division dissipated. Appellate the Appellate next consider Division’s determina We warrant of the search for the validity premises tion by out defendants Prince. (As pointed although owned refers to the introductory paragraph warrant its well as the Prince, tbe warrant authorizes premises Street, search the Prince Oakland premises Division stated: Englewood.) Appellate “* * * upon Prince contends that affidavit which the search probable warrant did cause for its issued not establish issuance. found, prosecutor stipulated The affidavit could not be but the prosecutor, nothing it was made an assistant and contained but following: good upon T have reason to believe and do believe that * * * premises persons present upon premises, certain said * * * property there now is located certain used as a means of * * * * * gaming 2A:121, 1, in violation of N. J. S. *. *11 tending grounds application the facts That to establish the for this * * * probable my grounds and the cause of belief that such Applicant by exist are as follows: has been hitherto reliable informed lottery slips persons that are sold diverse at the informant above- designated premises.’ (Emphasis ours) argues statement, “The State that underlined [italicized] the stand- ing alone, probable disagree.” was sufficient to establish cause. We The Division, after B. Appellate to R. 3:2A-3 and referring the on comprehensive opinions subject this Mr. matter by Macri, Justice in v. Jacobs State 39 N. J. 257 (1963), Burrachio, v. State 39 N. J. held that: (1963), support “The underlined words of the affidavit not provide were sufficient to probable finding cause, judge of a for did [who the upon warrant] the issued the material which he could determine persuasiveness ‘for himself the facts relied on the com- ” probable plaining officer to show cause.’ We with its conclusion that agree evidence taken from or if premises Prince’s based this upon search warrant should have been suppressed. also that State contends these materials seized minor,
from Prince “of if were any, importance.” We dis It be Prince felt agree. compelled may to to testify sum of he had explain away great money on his person S-6, card, Foti had the business day was the cards, S-13, six business same as two found on Prince’s devastating a himself to subjected be By testifying person. he had been admit he had to under which cross-examination by gambling he lived months and that many unemployed Such tes- Jersey New gambling. New York and not —albeit found “not prejudicial.” could be timony hardly materials whether the from the record not sure But we are ar- to legal incidental search not the result of were seized and execut- serving the manner of references to rest. The only ex- in the following were contained warrant the search ing Andora, an D. assistant by Anthony testimony of the cerpts the war- to execute “Englewood who was sent to prosecutor, follows: testimony is as His rant.” to? directed you “Q. warrant that search know whom Do Engle- Prince, in Street 21 Oakland to A. It was directed Norman wood. Englewood? City It was Q. you go A. time did What up vicinity there. A. M. that we were in of 11 any particular Englewood, you go City Q. did Where to the to Oakland Street A. Tes. We went street address? Oakland Street. of Norman Prince residence anything you Q. arrived there When we observe? A. What did pulled up Prince was about enter our and Mr. automobile we up him, ear, got indicated went his home. out into We warrant, gave copy him a invited him that we had search his home. us into through you A. took us into the house do then? He Q. What did *12 again dining him once his room and we informed his into kitchen going he and were to conduct a search and a search warrant that we first our time. The area and we commenced search consented of person was on his and he was asked that was conducted the search empty pockets he did so. his and Q. do this? A. He took out the contents his did he Where including placed dining pockets, his and those on room wallet they time, inventoried at that were contents of the table pockets. recognize identification,— Prince. [*] Q. Q. Now, (Wallet —and the contents jjc that? A. received and marked I show you *:« Yes, wallet this in the t',% Exhibit S-12 for which we the wallet that we took from Mr. wallet and ask [*] will have marked S-12 for [*] identification.) you whether [*] you # marked cards.) A. These are the business cards he had defendant on that he [*] Q. Q. (Cards had Now, I gotten done S-13 day? show [*] Prince received and marked Mr. some these you A. Andora, concerning ask betting Yes, [*] moneys you group both in New York did from and he said you the sums of you you business cards Exhibit S-13 can and I asked that he have identify [*] any * * money had in his wallet. among other conversations those. Mm at for which we will found [*] identification, the time where on his things [*] have six [*] examination, On direct defendant Prince testified: you Why, yes, Do Mr. “Q. know Gelman? A. I know Mr. Gelman very good. Englewood? Q. Does he live in A. He does. happened; opened my Q. What tell us. A. I had door ‘Prince,’ said, go in; Norman, house and started in and he ‘don’t go my said, go don’t in.’ I stuck back head out. He ‘Don’t house,’ and there was someone else with him. said, I ‘What’s I the matter?’ backed out of the house and he papers. said, had two He ‘X have a search warrant and an arrest you said, stay warrant.’ he ‘do go want out here or inside?’ said, ‘No, go So I let’s inside.’ gentleman. ISo invited him with got the other when So he inside said, ‘Empty your pockets.’ said, said, I ‘Wait a minute.’ I first,’ ‘I’ll read the search warrant it, reading. I read and started I looking saw where it gambling said paraphernalia were adding pads such as pencils, laughed, machines and said, I so I said, this?' I ‘What’s ‘Go ahead.’ said, your ‘Empty pockets.’ So then he out did, emptied my pockets. I I So out you put you your Q. Where did pockets? what had in put A. I dining it on the room table.” Thus, the record regarding Prince indicates that the prose- cutor’s men stopped Prince at his door about 11:15 a. m., searched his person and house for about 30-40 minutes and then took him to the prosecutor’s office. We gather that he assumed he was under arrest, but just when the arrest made actually and how are not explained.
Recently, in State v. Doyle, N. J. 334 (1964), Mr. Justice Francis comprehensively discussed the pertinent prin- *13 He a to an arrest. pointed search incidental
ciples involving all offenses crimes makes criminal out that our act present murder, N. J. 2A:148-1, J. 8. treason, than N. 8. (other misdemeanors, or high ei misdemeanors seq.) 2A.T13-1 an law of 12; J. 2A all common offenses N. :85-l that 8. for statute are by expressly provided indictable nature not 2A:85-1; misdemeanors, N. J. that misde- S. denominated $1,000 or a of not more than are fine by meanors punishable J. both, N. 8. than three or years, for not more imprisonment misdemeanors, under the statute 2A:85-7; that high felonies, are law with common way are not in any equated $2,000 or a fine not more than by of generally punishable both, of or for a maximum term seven years, imprisonment 6; a “felony” N. J. 2A and that the absence of specific 8. :85— with act a for decision necessity in our crimes creates categoiy a officer justify police the kind offense which will respect to au- statutory a In our State without warrant. arresting and in a a more than a state year thorization for penalty, 2A:167-15, N. J. necessary. is 8. prison, regarded Gf. act, with rare the crimes excep- -T7. Misdemeanors under tions, to three by up years being punishable imprisonment common law felony are sufficiently state prison equatable a a officer without warrant when by arrest justify peace an grade to believe that offense that ground has reasonable or committed be appre- has been being hended. e.., crimes here i.
Thus, under these viola- guides alleged a fine of of N. J. 2A:98—1 not punishable by tions 8. $1,000, than or more than three more imprisonment are as would an arrest both, of such stature permit years, incidental thereto without cause search probable on warrant. also out pointed
Mr. Justice Francis search, arrest must officers cannot pre-exist right arrest, because'of the in order to nor arrest product search that a search undertaken for the merely pur- the search and *14 of pose evidence with which to arrest convict uncovering of crime is not made lawful desired evidence is because the obtained. a warrant, Absent valid search authorities police must arrest in which validly reasonably event search they may anas incident of the arrest. He also that if the arrest stated lawful, without warrant is the search and seizure are not invalidated because the officers had time solely to adequate a search procure or arrest warrant.
Mr. Weintraub, Chief Justice too warning against much issue, to this out in emphasis being pointed State given Smith, 481, v. J. 484-485 N. that: (1962), dealing right upon are not bears “We with a denial of a conviction, example, right truth of a the appellate as for counsel * * * subject evidence, proba- review. Bather the tive force which is constant whether is seized with or it without * * * short, warrant. In the fairness of the trial itself and the injury truth the verdict are involved. The constitutional lies elsewhere.” We readily deduce from record that this Foti’s statement to the police upon his arrest on 1962 im April Prince constituted plicating cause for arrest of probable Prince without warrant. But was the search of the of Prince incidental an arrest? In this connection it is unimportant whether the search was made before or after the arrest so long as there was an intent to arrest him without to the regard Therefore, outcome of the search. the question becomes: Was there an intent to arrest of search? regardless
As that issue cannot be decided on record, the present we feel justice a remand to the trial requires court for a determination. State v. 40 N. J. Doyle, 320, 325 (1963). Cf. A is directed to be held hearing forthwith and a return of the record and of the trial court’s shall findings be sent to us as soon as Briefs shall possible. be filed and within exchanged after the days trial court files its In report. meantime, we retain jurisdiction. with tbe follow agreement our express
In we passing Division: Appellate statement tbe ing general charge, ‘a counsel entered the main “At the conclusion of * * * part every objection charge each to the whole nothing objection preserves an is worthless thereof.’ Such it, which, judge acknowledges appeal, or even invites even the trial (b) ; course, Defendants R. R. 3 :7-7 3:7-8. he should not do. charge appeal, portions attempted on the this attack objection. general we For the reasons stated refused basis of that *15 to consider those attacks.” a never objection We that should be emphasize general by counsel a directly made or or trial by impliedly recognized court.
Finally, defendants about the complain alleged improper Smith, for a character witness defend- cross-examination Hutchins and Walls. We have the cross- ants considered find no error examination and therein.
Remanded for inconsistent this proceedings opinion. 19 J. J. v. 457 Pontery, State N. (dissenting).
PROCTOR, it is for a trial court ask (1955), declares that improper how it that jury numerically. majority stands agrees mandate should be followed. The trial court this disregarded mandate and learned his this through interrogation a vote 1. In they my that stood deadlocked of 11 to jury by it was reversible error to send the back for fur- opinion jury in ther deliberation such circumstances without cautionary Williams, N. as forth v. J. instructions set State in the This case is (quoted majority opinion). (1963) J., 19 N. by express Pontery, controlled language p. 477: inquiry suggested easily specific form of lends itself to “This avoided, apparent compulsion especially where, here, and should be as jury judge having for further after returned the deliberation trial that were divided eleven to one. Under the
ascertained circum- cautionary any present, instructions the absence stances Stern, compulsion closely in In re set forth unlawful akin (1953) N. J. 584 Division: of the Appellate following language I with the agree ' holdout, “When, one is that there it has been announced after may instruction, cautionary jury it judge back without a sends agree judge and will appear him to wants to the dissenter that Póntery, This, displeased is from borrow if he does be not. easy probably compulsion.’ ‘closely It never is akin to unlawful right juror alone, is and it is convinced he to stand even when he appears very him his it much more difficult when must be * * * judge. upon may with disfavor dissent be looked juror out; forty hours, above minutes after the For four one held capitulated. colloquy, We cannot avoid the conclusion that it finally highly probable influenced to convict not that he was to vote jurors, impression only by arguments of his fellow but his agree judge feeling, him to within an hour. So we must wanted aside the verdict.” set I For the above reasons would reverse the convictions. Mr. Francis in this dissent. joins
Justice For Chief Justice WeiNTRAub, reversal and Justices — Hall, JACOBS, and PIaNemaN —5. Schettlcto *16 For FRANCIS n %. affirmance—Justice PROCTOR —