On writ of error to the Essex County Court of Quarter Sessions.
For the defendant in error, William A. Wachenfeld, Prosecutor of the Pleas; Jerome B. Litvak, Second Assistant Prosecutor; C. William Caruso, Special Assistant Prosecutor.
For the plaintiff in error, Isidor Kalisch and Oliver Randolph (Isidor Kalisch, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiff in error, Charles A. Barts, stands convicted of extortion. The statute (R.S. 2:127-1) within which the indictment was laid provides: "Any judge, magistrate, sheriff, coroner, constable, jailer or other officer who shall, by color of his office, receive or take
any fee or reward whatsoever not allowed by law, for doing his office, shall be guilty of a misdemeanor." Barts was a detective, denominated first-class, in the police department of the City of New York.
The indictment is in two counts, the first charging that Barts, being a police officer of the City of New York, unlawfully and corruptly did receive and take, by color of his office, the sum of $1,000, not allowed by the laws of the State of New Jersey for doing his office, contrary to the statute, &c. The second count is identical with the first save that it charges that Barts, as such officer, &c., received and took a "reward."
The facts and circumstances offered in proof by the state to support the allegations of the indictment are: that one Marion Greenberg, aided and abetted by a woman companion, invited an unnamed man to an apartment in New York which the two women maintained for purposes of prostitution; that the Greenberg girl stole a small package as well as the wallet of the victim; that the package contained $10,000 in cash. Marion Greenberg had another residence in uptown New York, in the Harlem district, where she remained from time to time, according to her convenience, with two couples, Mr. and Mrs. John and Mr. and Mrs. Beale. John is a Negro, his wife a white woman; the Beales are both Negroes. Marion Greenberg is a white woman and lived at the Harlem apartment on occasions with one Joseph Waters, a Negro, whose permanent residence is in Essex County, Newark, New Jersey. After the theft, which took place in the apartment maintained by her and her woman companion, Marion Greenberg left and went to the uptown abode. She telephoned for Waters, who was in Newark at the time. He reached the Harlem apartment at about three o'clock in the morning and she turned the $10,000 over to him. Waters gave $700 of the money to Beale and John before leaving their residence "to keep them quiet." The following day the Greenberg girl took quarters in a New York hotel under an assumed name. These events took place some time in the month of February, 1943.
It is important to note that prior to the larceny in New York Marion Greenberg, charged with a previous larceny [132 NJL Page 77] done at Newark, New Jersey, was there held to bail pending indictment and that she failed to appear to plead after the indictment, whereupon her bail was forfeited. On March 25th, a month after the larceny in New York, Marion Greenberg was in a tavern on West 116th Street, New York, with a male companion. The defendant, Barts, then attached to the Thirty-second Detective Squad on West 135th Street, came into the tavern and, in the course of conversation with the Greenberg girl, said that he had been informed "that she had clipped a man for $10,000." He told her, so she testified, that her victim had come to him because he "wanted the case disposed of quietly." At first she denied she stole the money. Thereupon Barts said that he knew her and that she was wanted for "jumping bail" in Newark, New Jersey, and that he would pick her up "under suspicion" until he found her "wanted" card. Thereupon she admitted having stolen the money but said that only $5,000 had been taken; that she had spent $3,000 of it and therefore "could only give him $1,000 because I wasn't going to give him all I had left." She also told Barts that Waters had the money; that he was in Newark and that if Barts wanted money he would have to go to Newark with her and get it from Waters. As a result of all this Barts and Marion Greenberg took a taxicab to Newark. They left New York between half past four and five o'clock in the afternoon of March 25th. Arriving at Newark they sought Waters at various places. He was finally located in a tavern and he joined them. When he did the Greenberg girl informed Waters "of Detective Barts' request." She communicated this information to Waters privately and not in the range of Barts' hearing. Thereafter, according to her testimony, Barts and Waters conferred outside the range of hearing of the witness. It was then about seven o'clock in the evening. At this juncture all three got into the New York cab, which had been kept waiting, and drove to the home of one Sophie Brown on Livingston Street, Newark, New Jersey. En route Waters is said to have told Barts "that he was giving him that money [$1,000] to keep me [Marion Greenberg] out of jail," and Barts replied that the girl "wouldn't go to jail." When the cab reached the Livingston
Street address Waters left the cab and went into the house. On his return the two men, Barts and Waters, entered a nearby tavern, the girl remaining in the cab. After some delay Waters and Barts reappeared and the witness, Greenberg, testified that Waters said to the defendant, "Here's a thousand dollars in ten one hundred dollar bills." Before turning over the money Waters demanded some identification, whereupon the defendant showed him an "orange card" on which his name was printed. Prior to showing him the card he had displayed his police badge. It seems that the orange colored card was one which was issued as a pass by the Fifth Avenue Coach Company to members of the New York police department. Satisfied with the identification, Waters handed Barts the money, saying that it was a thousand dollars and that it was intended to "keep this girl out of jail." At the request of the girl, Barts asked Waters to return to New York with them. Waters did so insisting, however, that his brother, "Emzey," accompany them. The four went to New York in the cab. During the journey the Greenberg girl testified that Barts had told her that his information about the theft of $10,000 came from Beale, in whose New York apartment she lived from time to time with Waters; that Beale had pointed out the Greenberg girl to Barts.
The facts as they appear from the State's witnesses have been stated in detail, the necessity for which will presently appear. The defense offered was a denial of the fact and certain testimony to support an alibi.
Barts on this appeal presents many assignments of error and specifications of causes for reversal. Error is assigned in the bill of exceptions and the entire record is before us for consideration as to whether the defendant suffered manifest wrong or injury during the course of the trial in the court's rulings on evidence and the charge to the jury. R.S. 2:195-16.
It is first argued that the court erred in refusing to quash the indictment; in rejecting a motion in arrest of judgment; in overruling a motion for direction for the defendant; in certain of the rulings on matters of evidence; that the court's ...