
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. AMBROSE GALLAGHER, PLAINTIFF IN ERROR. STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRIS GREENBERG, PLAINTIFF IN ERROR.
    Submitted January term, 1928
    Decided June 21, 1928.
    
      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the defendant in error, John Milton, prosecutor of the pleas.
    For the plaintiff in error Ambrose Gallagher, Thomas F. Meehan.
    
    For the plaintiff in error Harris Greenberg, Thomas J. Brogan.
    
   Per Curiam.

The defendants Ambrose Gallagher, Harris Greenberg and Edward Bruhns were tried in the Hudson County Court of Quarter Sessions upon an indictment charging them with conspiracy to defraud the Jagels-Bellis Company of under-weighing and undervaluing coal. Edward Bruhns was found not guilty by direction of the court. Ambrose Gallagher and Harris Greenberg were found guilty of a conspiracy by the jury.

They each sued out a writ of error from this court. They each assign two grounds of error and three specifications of causes for reversal, which are identical.

It is argued in the brief on behalf of Greenberg that neither a conspiracy to defraud, nor an overt act in pursuance thereof, was proved by the state, and on behalf of Gallagher, it is argued, the crime was not proved, as the only case made against him consisted of his admissions and confession. The crime charged was conspiracy and the admissions and confession of the defendant Gallagher did not prove the conspiracy. Moreover, the verdict of conspiracy was against the weight of the evidence.

The whole case, so it is argued, went to the jury on the confession of Gallagher, which did not involve Greenberg.

None of these points are tenable, because they are not true in point of fact, as a reading of the record will reveal. The defendant Gallagher made a written confession, page 108 et seq., testimony of May Dempsey. He did not take the stand in his own defense. His failure to offer himself as a witness may be considered and commented on. Parker v. State, 61 N. J. L. 308. C. Henry Jagels, a witness (at p. 123), charged Greenberg with short weighting of coal on his tickets. “Well/5 he said, “I will make everything good."

The state contends that it has proved two overt acts, one overt act when the defendant Gallagher in the presence ofGreenberg deliberately underweighed the coal purchased by the defendant Greenberg — five hundred pounds. Record, p. 72, l. 14, el seq; p. 73, l. 22. The other overt act, the defendant was charged with an inferior grade of coal, when he actually received a higher grade of coal. These acts were within the two-years5 period, and were proved to have been done at the time laid in the indictment, testimony of witness Joseph Brophy. Record, p. 73, l. 25, et seq.

The state does not rest its case upon the confession of Gallagher to prove a claim against the defendant Greenberg.

Rinding no error in the record, the judgment of the Hudson County Court of Quarter Sessions, in each case, is affirmed.  