The opinion of the court was delivered by HEHER, J.
The judgment here is not appealable of right to this Court. It was entered February 9, 1949, after
Lennon appeals from a judgment of conviction rendered on an indictment returned August 31, 1948, charging that on or about June 1, 1944, "and from thence continuously until on or about" May 1, 1948, at the Borough of Cliffside Park, in the County of Bergen, in this State, P. James Pellecchia, Lennon, Albert Klausner, John Doe and Richard Roe did knowingly and unlawfully, and with evil intent, conspire and agree together to violate the provision of Title 2, chapter 135 of the Revised Statutes of 1937, "by * * * Pellecchia telephoning bets and wagers, on the running either within or without this State of horses, mares and geldings, to telephones located" in Cliffside Park "maintained and operated for that purpose by the defendants, John Doe, Richard Roe, and Lennon," and the keeping by Lennon of "an account of the bets and wagers made by" Pellecchia, and the payment by Lennon to Pellecchia of the moneys won on the latter's wagers and the collection from Pellecchia by Lennon, either personally or by his agent and servant, Klausner, of the moneys lost on his wagers. Klausner was charged with knowing participation in the making and execution of the conspiracy as the servant and agent of Lennon. Overt acts were alleged and proved, among which were seventeen payments made by Pellecchia to Lennon, ranging from $500 to $3,000, between January 23, 1946, and December 2, 1947. The evidence tended to establish bookmaking in violation of R.S. 2:135-3. That was the issue submitted to the jury.
There was a severance as to Pellecchia; and he was sworn as a witness for the State on the trial of Lennon. He testified that during the summer of 1944 he was introduced to Lennon at a race track in Jamaica, New York. The subject matter
The proofs sustain the inference that Lennon, Klausner and others conspired to commit the crime of bookmaking in violation of R.S. 2:135-3. Under the statute, an agreement or combination between two or more persons to commit a crime constitutes a conspiracy punishable as a misdemeanor, provided that, with certain exceptions not here pertinent, there was an overt act in furtherance of the object of the agreement by one or more of the parties. R.S. 2:119-1, 2. Bookmaking is a criminal offense. R.S. 2:135-3. But wagers, bets or stakes made to depend upon any race or game, or upon any gaming by lot or chance, or upon any lot, chance, casualty or unknown or contingent event, are merely "unlawful." R.S. 2:57-1. Appellant invokes the rule that where the subtsantive offense necessarily involves concert of action, a charge of conspiracy to commit that offense will not lie. It is said that "a man cannot wager with himself;" and that no evidence of a conspiracy "between Lennon and Klausner was offered as against Lennon." This latter has reference to a purported confession introduced into evidence against Klausner. But the confession acknowledged Klausner's participation in the conspiracy; and Pellecchia's testimony implicated Lennon in the same combination.
The cited principle has no application here. The essence of the charge laid in the indictment is a conspiracy to violate the statute denouncing bookmaking; and the proofs establish such a conspiracy by Lennon, Klausner and those indicated by the fictitious names. The evidence adduced from Pellecchia proves the existence of a combination by his co-defendants to engage in bookmaking as pleaded in the indictment. The
Preconcert of action between Lennon, Klausner and the unidentified persons was not required for the commission of the substantive offense; and the principle of concursus necessarius is not apposite, but rather that of concursus facultativus. Wharton's Criminal Law (12th Ed.), § 1604. Where there is a plurality of agents not necessary to the commission of the substantive crime, the combination is invested with a potentiality for evil that renders it criminal in itself. A combination to commit an offense may be a criminal conspiracy, even though the object is to do what some of the conspirators may be free to do alone. The incapacity of one to commit the substantive offense does not necessarily mean that he may with impunity conspire with others who are able to commit it, for the statute is directed at what Mr. Justice Stone described as "the collective planning of criminal conduct." "The plan is itself a wrong which, if any act be done to effect its object, the state has elected to treat as criminal." Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206 (1932). See, also, United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211 (1915); Vannata v. United States, 289 Fed. 424 (1923).
The statute denounces as a conspiracy an agreement or combination to commit a crime; and since the proofs show a conspiracy by Lennon, Klausner and their unknown accomplices to engage in bookmaking in contravention of the statute, the charge laid in the indictment is made out even though Pellecchia be deemed an essential party to the commission
Plainly, there was a bookmaking combination organized for large-scale betting; and the provision of its facilities to Pellecchia did not serve to subject the members of the combination to criminal responsibility for the substantive offense only. The conspiracy had in view not an isolated bet by Pellecchia, but a long series of wagers through Lennon and his accomplices that in the end covered a period of four and a half years and resulted in the embezzlement of more than $100,000 to meet his losses. It was a sinister combination that held great power for evil, far more perilous to the public welfare and safety than the criminal intent of a single individual and therefore a conspiratorial enterprise subject to indictment. Vide, Burdick's Law of Crime, § 984.
It is not requisite that the conspirators know each other, or that they should all join in the common purpose at the same time. People v. Strauch, 240 Ill. 60, 88 N.E. 155 (1909); Burdick's Law of Crime, § 999.
The judgment is accordingly affirmed.
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. Supreme Court 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
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. United States, 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.