On error to the Essex County Court of Quarter Sessions.
For the plaintiffs in error, Jack Wildman (Harold Simandl, of counsel).
For the state, William A. Wachenfeld, Prosecutor of the Pleas, Donal C. Fox and C. William Caruso, Assistant Prosecutors.
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiffs in error were convicted of the larceny of a coat from the Kresge Department Store, in the City of Newark. They have caused the entire record of the
proceedings had upon the trial of the issue to be returned with the writ of error, pursuant to R.S. 1937, 2:195-16.
The evidence adduced in support of the indictment tended to show that the accused were guilty of shoplifting.
The first ten assignments of error and causes for reversal are grounded on the admission, over objection, of evidence from one Reilly, in charge of the Kresge store detective force, designed to qualify him as an expert "in the detection and apprehension of shoplifters," and, on the hypothesis that he was thus qualified, to show that "most cases of shoplifting take place and are committed in the presence of crowds." The maxim res inter alios acta is invoked. It is said that this is evidence of things done between strangers affording no reasonable presumption or inference as to the matter in issue, and so not admissible to the injury of persons not privy to them -- citing Temperance Hall Association v. Giles, 33 N.J.L. 260.
Deeming it to be a circumstance indicative of innocence of the crime charged, the accused developed evidence that, at the time of the alleged theft, there were many people, employees and patrons, on the floor nearby; and the argument is made that, without the evidence thus elicited from Reilly, "the circumstance that so many people were in the coat department at the time the alleged offense was committed, might have enured favorably to the accused," and that "that circumstance alone might have engendered a reasonable doubt in the minds of the jury." since it would tend to disbelief that the accused would have committed the criminal act charged while under the observation of "so many customers and salesgirls."
Of course, competent evidence tending to refute the claimed conclusion as one resting upon a false premise is plainly pertinent to the issue. It is permissible in certain cases for a lay witness to state the inference derived by him from facts within ordinary knowledge occurring in his presence. State v. Doro, 103 N.J.L. 88; Koccis v. State, 56 Id. 44. And it is proper to draw upon the special experience of one whose knowledge is therefore beyond that common to mankind. ...