State v. Lennon , 3 N.J. 337 ( 1949 )

This appeal is by Lennon only and is from his conviction. There were other men, designated in the indictment as John Doe and Richard Roe, whose identities were unknown but who confederated with Lennon in the violation of our law against bookmaking. The acts done by these three were adequate, I believe, to establish the conspiracy. The fact that a conspirator who committed an essential act in the conspiracy cannot be identified does not affect the general rule that each conspirator is responsible for the acts of his confederates in furtherance of the conspiracy.Spies v. People, 122 Ill. 1, 12 N.E. 865 (Ill. SupremeCourt 1887). The question of Lennon's guilt under the indictment was fairly put to the jury and the verdict is supported by the proofs referred to above. I vote to affirm.

However, I differ from the reasoning of the majority opinion in some respects, one of which is the effect to be given, on Lennon's appeal, to the testimony against Klausner. Lennon and Klausner were charged in the indictment as co-conspirators and were tried together. Neither of them took the stand. The only proof of participation by Klausner was a confession made by him and admitted at the trial as evidence against him only and as having nothing to do with the guilt or innocence of Lennon. In no other way was Klausner connected up with the crime. He was found guilty. But the verdict against Klausner, dependent solely upon proof which was not competent against Lennon, may not, in my judgment, be used with any effect whatsoever against Lennon, and the state does not contend that it should or may be. This appeal goes entirely to the situation as it was at and before the trial. The conviction of Klausner may not properly count against Lennon even to the extent of demonstrating that there was a conspiracy. To my mind the majority opinion does give weight, as against Lennon, to the Klausner incident.

Further, I am not in accord with the extent to which the theory and the application of the crime of conspiracy are carried. Betting, except by the pari-mutuel system, is unlawful in this state. R.S. 2:57-1. But the statute places no criminal liability upon the bettor. The indictment herein charged in general terms that Pellecchia, Lennon, Klausner, John Doe and Richard Roe conspired to violate "the gambling statutes of the State of New Jersey, namely, Title 2, Chapter 135 of the Revised Statutes." During the course of the trial the court confined the accusation to a conspiracy to violate section 3 of that chapter, namely, R.S. 2:135-3. That section, in so far as it is relevant, pronounces one guilty of a misdemeanor who shall make what is commonly known as a book upon the running of a horse, or shall conduct the practice commonly known as bookmaking, or shall keep a place to which persons may resort for engaging in any such practice, or for betting upon the event of any horse race; and it includes within its application any one who shall aid, abet or assist in any such acts. It is clear that bookmaking is an act which must be done in concert, that is, there must be the bookmaker who takes the bet and also the bettor who places the bet, and that the statutory offense is visited upon the bookmaker and those who assist him and not upon the bettor. It is a substantive statutory offense, with penalty, to make a book and take bets; it is not a substantive statutory offense, with penalty, to place a bet. Both Lennon and Pellecchia were indicted, not for violating the statute — Pellecchia could not have been indicted on that ground — but for conspiring to violate the statute. Thus it comes that Pellecchia, whose betting was not a punishable violation of the statute, is indicted upon the theory that his act of betting was a collaboration with Lennon to carry on the latter's inhibited bookmaking. I am concerned, not about Pellecchia, because his case is not before us, but upon the effect the case may have as a precedent. Lennon could have been indicted and prosecuted for his violation of the substantive statute. Pellecchia stood convicted of the misappropriation of large sums of money which he took and used for his betting operations; but so far as the present indictment is concerned he did nothing but bet; he had no part in the bookmaking. The omission of the bettor from the condemnation of the statute must, in sound reason, be laid to the deliberate intention of the legislature. It is not necessary for us to find a motive in this splitting of a gambling transaction into its two component parts, making only one of them a crime; but a quite logical motive would be to encourage or compel the bettor at the instance of the prosecuting authorities to disclose facts which he would not be likely or compellable to disclose if in so doing he would involve himself in criminal guilt; or it may be that the purpose was to hold only him who commercializes on such transactions and panders to the weaknesses of men. But whatever the motive or purpose, there is the statute. It is for the courts to pronounce and to construe the law, not to make it. Particularly is this so of the criminal law. Yet there is the growing tendency of grand juries and prosecuting authorities, and, indeed, of courts, in instances where the statute has set up a crime which for its performance requires concerted action, and has made only one phase of the action a punishable crime, to bring all participants — whatever part they took — within the net by the simple, but very subtle and far-reaching, practice of charging them all with conspiracy. This trend reaches into various aspects of life. We recently had before us a case, In re Vince, 2 N.J. 443, which, while not on all fours, had illustrative points. As a result of the history of the case and of a physical examination it was thought by an attending physician that an abortion had been performed. The young woman was brought before the grand jury and questioned. She refused to answer upon the ground that the answers might tend to incriminate her. The matter came before us, and we studied the case in the light of R.S. 2:105-1 which makes it a high misdemeanor for one, with malice or without lawful justification, to administer drugs or use an instrument or other means, with intent to cause or produce the miscarriage of a pregnant woman. We held that a woman who performs an operation upon herself or consents to its performance upon her by others is chargeable criminally only if the child be quick (a condition not present in that case) and that since the woman could not be punished criminally as a result of her testimony her refusal to testify was without justification. Thus there is illustrated the reluctance of a person involved in a criminal act to testify, the willingness to use the rule against self-incrimination as a screen, and the refusal of the court to permit a statute to be misdirected toward a person upon whom guilt was not laid by the statute, even though the guilty act was one which involved concerted action in which such a person participated.

The better rule is that where a concert of action is necessary to the commission of the substantive statutory offense and the statute is directed towards one and not the other participant a charge of conspiracy does not lie, unless, in addition to the necessary concert, other persons participate as conspirators or there is a nefarious element such as the bribing of a public official. It is true that John Doe and Richard Roe participated in the offense but only as the persons who collaborated with Lennon at the bookmaking end of the transaction. Pellecchia did not know who they were, never saw them and knew nothing about them. I do not understand how their participation with Lennon could be used to magnify Pellecchia's actions beyond the mere placing of bets.

I do not develop the thought further because Pellecchia is not before us, and the court decision is not made to depend upon his alleged participation in the conspiracy. However, the majority opinion, as I read it, does assume the propriety of the inclusion of him within the indictment and of the finding of guilt against him; and I wish to note that I am not in accord with that assumption. The subject was recently (March 28, 1949) treated at length by Mr. Justice Jackson in his concurring opinion (in which Justices Frankfurter and Murphy joined) in Krulewitch v. UnitedStates, 336 U.S. 440, 93 L.Ed. (Advance Sheets No. 11,p. 623).

CASE, J., concurring in result.

For affirmance — Chief Justice VANDERBILT, and Justices CASE, HEHER, OLIPHANT, WACHENFELD, BURLING and ACKERSON — 7.

For reversal — None.