On error to Gloucester County Quarter Sessions Court.
For the plaintiff in error, Samuel P. Orlando.
For the state, Joseph J. Summerill, Jr., prosecutor of the pleas.
Before Gummere, Chief Justice, and Justices Parker and Case.
The opinion of the court was delivered by
PARKER, J. The plaintiff in error was convicted of robbery, and brings this writ of error in the customary double aspect. The assignments of error, and causes for reversal pursuant to sections 136-7 of the Criminal Procedure act, each thirteen
in number, are identical. In none of them is it set up that the verdict was against the weight of evidence.
The first eight assignments and specifications (some of which are abandoned) relate to rulings of the court on the admission of testimony, but they are all general in form and therefore require no consideration. Donnelly v. State, 26 N.J.L. 463, 512; State v. Herron, 77 Id. 523, 525; State v. Lewis, 98 Id. 618; State v. Blaine, 104 Id. 325; Booth v. Keegan, 108 Id. 538.
Grounds 9 and 10 challenge the refusal of the trial judge to direct an acquittal when the state rested, and again at the close of the evidence. No question is raised with respect to the corpus delicti; the only point made is that there was not sufficient identification of the plaintiff in error as a participant in the robbery to justify submission to the jury of the question whether he was present and participated. The testimony of the witness Riley, who was night man in charge of the gasoline station where the robbery was committed, sufficed in itself to raise a jury question on this point. Riley's testimony was positive in identification of the plaintiff in error as the particular one of the three men concerned, who presented a pistol, ordered Riley to hold up his hands, and held him in that position while the others attended to the cash box. The defense was alibi but the question of fact of course, remained for the jury to consider.
The twelfth assignment and specification charge that the verdict was received in the absence of plaintiff in error and of his counsel, so that they were deprived of opportunity to poll the jury.
There is no merit whatever in this point. The case shows that there was "a motion for a new trial and that the verdict be set aside and judgment arrested," which was denied. The grounds of the motion do not appear in the record. But testimony was taken before the trial judge on this motion; and it shows that after the jury had been charged they were locked up at three-fifteen P.M., and that the judge left the court room. Defendant's counsel also left, saying to defendant, ...