On error to the Essex County Court of Quarter Sessions.
For the defendant in error, William A. Wachenfeld, prosecutor of pleas.
For the plaintiffs in error, Harold Simandl.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The plaintiffs in error, Zimmer and Cohen, were convicted on an indictment charging them with attempting to break and enter the factory building of the New Universal Rabbit & Fancy Dressing Company, Newark, New Jersey, with intent to steal the goods, &c., of that company. A third defendant, Hinkes, was also convicted but has abandoned his writ of error.
The entire record of the proceedings, certified by the trial judge, is before us. The assignments of error and the specification of causes for reversal are identical as to each plaintiff in error. The appeal was submitted on brief and the argument for reversal, made under four points, will be treated in order.
1. That there was a material variance between the allegations in the indictment and the proofs in support thereof.
The burden of the argument for the plaintiffs in error is, that the indictment charged an attempt to break and enter the building of the New Universal Rabbit & Fancy Dressing Company, and that that material averment was not proved. The building in question is located at 57 Paris street, Newark, New Jersey, and plaintiffs in error say that there was no evidence identifying the building at that address as the factory of the New Universal Rabbit & Fancy Dressing Company, and that therefore a variance arose between the charge in the indictment and the proof in support thereof. We do not think that there is any substance in this point but rather that it was clear to all that the building in question was located at the stated address and that it was occupied by the fur company. No point was made in the trial of the case at any
stage that there was a failure of identification of the building. The present argument is an afterthought and rests on a piecing together of seeming omissions to make out lack of proof on this important element of the case. But we think the proof was there none the less for the following reasons:
The state, by one of its witnesses, a surveyor, had introduced a map of the neighborhood in question. The state's attorney, in cross-examining the defendant Cohen, referred to this map and in a series of questions or statements pointed out a building as that of the "Universal Fur Dressing Company." The purpose of using the map at the time was to have the witness point to just where in the neighborhood he had parked his automobile on the night of the alleged crime. Immediately thereafter in his cross-examination he was asked if on the night in question, after parking his car, he hadn't walked by No. 57 Paris street, "the fur dressing factory, No. 57," to which he replied in the affirmative. The defendant Zimmer was asked by his own counsel whether he attempted to break and enter a factory building of the "New Universal Rabbit & Fancy Fur Dressing Co.," a corporation, to which he replied in the negative. It is plain that the name of the company was misstated several times by the state's attorney as well as by the attorney for the defendants. In the indictment it is called by its proper name. In the testimony above referred to, where the witness, Cohen, was looking at the map under cross-examination of the state's attorney, the building was called "Universal Fur Dressing Co." At another point the premises were called "The Fur Dressing factory" and at another point defendants' counsel referred to it as "New Universal Rabbit & Fancy Fur Dressing Company," but there is not the slightest doubt in our minds nor do we think there was in the minds of the jury but that all parties understood that the premises under discussion were those mentioned in the indictment.
2. It is further argued that the trial court erroneously charged certain material facts as proven when in fact they were not proven. An exception was taken to a statement made by the court ...