State v. MaloneState v. Malone
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- Before:
- Drewen
These motions to dismiss are directed to the four indictments above. Those numbered 146 and 148 charge a conspiracy to violate
The conspiracy charged in each of the indictments Nos. 147 and 149 is to obtain money by false pretense, likewise based upon
The two indictments in question are so strictly within the scope of the last sentence and so utterly without reference to or bearing upon the rest of the section as necessarily to imply — on the hypothesis of their being declared valid — the clear independence and separability of the two parts. But, as I read them, they are neither independent nor separable. Apart from the first sentence of the section, the second has no lawful meaning. Its dependence is manifest. It is ancillary to the main purpose, a kind of aiding and abetting provision, and the words “contribution * * * for campaign purposes,” which the indictments take from it — adding the word “political” — are not a statement of that purpose but a mere reference. The incongruence presented by the section as a whole may, perhaps, be explained by the inadvertent omission of the word “such” as a modifier of the phrase “campaign purposes” in the second sentence. But this is futile speculation and is mentioned only to emphasize the difficulty. All that can be said is that the character and scope of the conspiracy here charged is fixed and limited by the means set forth and that the “contributions for political campaign purposes,” which are vital to the significance of the stated means, might or might not be such campaign contributions as the employees are forbidden to make, viz., contributions “to the nomination or the election of any person to public office or party position.” There is simply no way of telling whether they are or not; nothing within the frame of the indictments gives a hint. Unlike indictments Nos. 147 and 149, these contain no reference
In the State‘s brief it is urged that “No language could be more explicit or definitive of the acts denounced than that which appears in the last sentence of
The construction necessary to support the State‘s position raises other serious objections. If the second sentence is independent and separable it must be taken as, in itself, defining a substantive crime, as, indeed, it is contended. Then the question arises, what is a campaign purpose for which it is a misdemeanor to invite or solicit contributions? What sort of campaign is intended? The degree of vagueness and uncertainty here is better appreciated by reading the charge as pleaded without the word “political” in the phrase “for political campaign purposes.” Since that word is not in the text upon which the charge is based, whatever plausibility it affords
Doubtless the supplying of particulars will be thought of as a sufficient remedy for the indictments as they are. It is my opinion that in this case the reasons for rejecting the idea of particulars are even clearer than were the reasons for a similar rejection by the court in State v. Jenkins, 136 N.J.L. 112 (Sup. Ct. 1947), appeal dismissed, 137 N.J.L. 209 (E. & A. 1948), and in State v. Daly, 3 N.J. Super. 247 (App. Div. 1949), certification denied, 3 N.J. 367 (1949). The response which in the present instance would have to be given to a demand for particulars, considered as adequate to the need, simply would not constitute particulars. It would have to be such as to supply the essential elements now missing in the charge. It would go not to particularize the indictments but to complete them, they being presently consistent with innocence.
A somewhat analogous situation was dealt with by the former Supreme Court in State v. Beatty, (unreported, No. 1 Jan. Term, 1946, Sup. Ct., April 1, 1946). The indictment there was based on
Looking away from the immediate case, a moment‘s reflection will show unmistakably, I think, how drastic a precedent would be involved in the approval of these indictments, a precedent for the use of general and inclusive terms in respects vital to the charge, when the terms in the basic statute are specific and exclusive. All extremities that could thus be sanctioned are, of course, unforeseeable, but one result is certain: The constitutional right of a defendant to be informed adequately, at the outset, in the presentment against him would be reduced to a mere chance of being informed, belatedly, depending upon the trial court‘s disposition of a motion for particulars.
I have considered all other objections to indictments Nos. 146 and 148 and find no merit in them. For the reasons stated, the motions directed to these indictments are granted.
Coming now to indictments Nos. 147 and 149, one objection is that they are vague and indefinite to the extent of involving the hazard of double jeopardy and that they come short of adequately informing the accused of the charges they are being called upon to meet. It is my opinion that this point of objection will be fully answered by a review of the indictments themselves. The conspiracy is charged in the established formula and in conformity with the statute; its stated object is the commission of a crime, that is, to cheat and defraud the designated persons, all male employees in the various departments of the Jersey City government, by means of pretending to them that the accused were duly authorized and lawful representatives and agents of the candidates, in the indictments named, for election as city commissioners in the then impending municipal election, and also that they were the representatives and agents of the then lawfully designated campaign manager of such candidates;
Conspiracy “To commit a crime” is within the terms of our statute; likewise, conspiracy “To cheat and defraud a person of any property by any means which are in themselves criminal” and conspiracy “To obtain money by false pretenses.”
Under the head of the objection for indefiniteness, defendants stress the failure of the indictments to name the persons to be defrauded. As already seen, these persons are not identified by name but as members of a group comprising the
It is my view that an accommodating principle legitimately emerges from the necessity indicated in the situation presented. While there is no question of the court‘s exercising judicial notice of the precise number of persons comprising that group, it is not incumbent on the court, under these circumstances and upon these motions, to decline to recognize, for present purposes and on the grounds to be stated, the fact that the group is numerous to the extent that it is “not capable of being at the time resolved into individuals” and that their general designation as a group does not violate the right of these defendants to be reasonably apprised of the charge they are called upon to meet. The latter consideration dominates all others. If the indictments comply with that canon the omission is not important, certainly not fatal. I think they do comply. The identification here of all the persons in question is, in effect, by way of reference to a roster of all the male employees in the named public departments of the city. The charge is a conspiracy to defraud such persons by the means described. The question posed by the objection is who were the male employees of these departments during the period covered by the accusation? I see no substantial difference in law between identification by reference to such a roster and in making the indictment itself a roster of the names. It is my judgment
There is another important consideration in this regard as I see it. The intended victims of the combination, as alleged, are described throughout in their total group aspect, that is, as ”the male employees” of the departments stated. It is thus reasonably apparent from the charge, as framed, that its intent is that the male employees in question were identified in the minds of defendants themselves, not individually, but as members of the employed group and that their amenability to the concerted design arose from such membership; in a word, that the purpose of the conspiracy comprehended primarily the group as such, so that the importance ordinarily attaching to individual personal identities does not here obtain.
Further objection is made that each of these indictments is double, the argument being that they charge not only conspiracy to obtain money by false pretense but the consummated crime of false pretense as well. This has reference to the paragraph immediately following the allegation of means and immediately preceding the alleged overt acts, wherein it is charged that “by color and means of such false pretenses as aforesaid, they, the said defendants, did cheat and defraud the said male employees * * * of their moneys, and they, the said defendants, did by such color and means obtain from the said employees” the sums of money hereinabove set forth. The fallacy here appears to me to be obvious. Defendants earnestly wish the court to understand that the grand jury did not indict for the completed crime but for conspiracy to commit such crime. That is precisely the case, and so the matter stands. The defendants are indicted for conspiracy, and the issue of traverse will present the single question of guilt or innocence under that charge and no other. Defendants mistake the paragraph last quoted for a charge that carries the indictment beyond the scope of the conspiracy alleged, which it manifestly does not. In effect, the paragraph charges simply that the conspiracy was
In criminal conspiracy the accomplishment of a criminal objective that is, in itself, a crime may be pleaded and shown. Wood v. State, 47 N.J.L. 180 (Sup. Ct. 1885); Patterson v. United States, 222 Fed. 599 (C.C.A. 6th, 1915); certiorari denied, 238 U.S. 635 (1915); Joyce, Indictments (2nd ed. 1924) 633, § 546, citing Knoell v. United States, 239 Fed. 16 (C.C.A. 3rd, 1917) and other decisions. See also Johnson v. State, 26 N.J.L. 313, 322 (Sup. Ct. 1857), affirmed 29 N.J.L. 453 (E. & A. 1861); State v. Simon, 113 N.J.L. 521 (Sup. Ct. 1934), affirmed 115 N.J.L. 207 (E. & A. 1935); State v. Profita, 113 N.J.L. 330 (Sup. Ct. 1934), affirmed 114 N.J.L. 334 (E. & A. 1935); Noyes v. State, 41 N.J.L. 418 (Sup. Ct. 1879), affirmed 43 N.J.L. 672 (E. & A. 1881).
It is next urged that the description of the pretense as “fraudulent” only, that is, the failure to describe it also as “false,” negatives the criminal character of the conspiracy and nullifies the charge. The answer to this objection is that, if the inescapable sense of the whole text carries the same meaning without the word “false” as with it, the
In answer to the objection that the indictments do not charge an intent in the defendants to achieve their own personal gain, it need only be said, I think, that one is presumed to intend the natural and necessary consequences of his acts, and further, that the particular use to which the moneys were put by defendants after accomplishing the purpose of obtaining them is immaterial.
It is finally contended that the indictments are specifically false in their averment that the “other persons,” with whom the two defendants are alleged to have conspired, are persons “whose names are as yet unknown to the Grand Jurors.” This, they say, is “a device (which) compounds uncertainty and is grossly prejudicial to the defendants.” For proof that the averment is untrue, counsel rely on the circumstance that the other indictments brought up on this motion, Nos. 146 and 148, contain no reference to unknown persons, and that, together with the two defendants in the indictments now considered, there are in indictments Nos. 146 and 148 four other defendants, as well as 12 additional co-conspirators who are named though expressly not
The motions to dismiss indictments Nos. 146 and 148 are granted. The motions to dismiss indictments Nos. 147 and 149 are denied.