On writ of error to the Supreme Court, whose opinion is reported in 119 N.J.L. 277.
For the plaintiff in error, Collins & Corbin (Edward A. Markley, John F. Leonard and Frederick H. Hauser).
For the defendant in error, Daniel T. O'Regan, Frank G. Schlosser and William T. Cahill.
This is a writ of error to bring up a judgment of the Supreme Court affirming the conviction of the plaintiff in error, Sidney S. Block, on an indictment for receiving stolen goods, at the Hudson County Court of Quarter Sessions. We are of the opinion that the judgment should be affirmed, for the reasons expressed in the opinion of Mr. Justice Parker in the Supreme Court.
It is necessary to mention particularly only one matter. There had been a previous trial on the indictment which resulted in a disagreement of the jury. The opinion of the Supreme Court contains the following statement: "On the first trial the state's proof indicated that though ten rugs had been stolen, only five had been received. When the state rested, the prosecutor moved an amendment of the indictment to conform to the proof, and this amendment was ordered, apparently without objection then or at any time." From the record which was presented to the Supreme Court this was an accurate statement. However, in this court, for the purpose of challenging that statement, plaintiff in error has presented a supplemental state of the case consisting of a transcript of the argument and ruling at the first trial upon the motion to amend the indictment, which indicates that there was objection, and which was not part of the record before the Supreme Court.
While we do not perceive that it would alter the result, we are of the opinion that this supplement to the record is not properly before this court. The action taken by an intermediate appellate court cannot be challenged on appeal on the basis of matters not in the record presented to the intermediate court.
The judgment under review is affirmed.
For affirmance -- THE CHANCELLOR, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 13.