On error to the Supreme Court, whose opinion is reported in 135 N.J.L. 414.
For the plaintiff in error, Kessler & Kessler (Samuel Kessler, of counsel).
For the defendant in error, Duane E. Minard, Jr., Prosecutor of the Pleas, and C. William Caruso, Assistant Prosecutor of the Pleas.
The opinion of the court was delivered by
OLIPHANT, CHANCELLOR. The plaintiff in error was convicted in the Essex County Quarter Sessions upon an indictment charging the breaking and entering, by night and by day, of a certain dwelling house of one Boorse, with the intent to steal, &c., and the larceny and the receiving of goods and chattels of the householder named. The plaintiff in error was sentenced to the State Prison for a term of imprisonment of three to five years at hard labor. The Supreme Court on error affirmed the conviction and judgment. State v. Friedman, 135 N.J.L. 414.
The cause is now before this court on writ of error, bill of exceptions and on the certification of the entire record of the trial proceedings, pursuant to R.S. 2:195-16. The single and proper assignment of error, that the Supreme Court erred in affirming instead of reversing the judgment of the Essex County Court of Quarter Sessions, &c., makes available in this court the assignments of error and the identical specifications
of causes for reversal raised by the plaintiff in error below. State v. Verona, 93 N.J.L. 389, 391.
The state proved the following facts. On June 26th, 1945, there was a forced entry of the Boorse dwelling between 9:45 A.M. and 5:30 P.M., while the occupants were absent, and goods were stolen therefrom. On that day the plaintiff in error, who was in the second-hand furniture business, made two trips to the residence of one Levenson, which was two doors from the Boorse house, to arrange for the dismantling and carting away of a pool table. He was there at 11:30 A.M. for a half hour and he returned at 2:00 P.M. with a truck and helper. The pool table was dismantled and taken out by the plaintiff in error and the helper in the presence of the Levenson boy. This work, including taking the parts out of the cellar and loading the truck, consumed a half hour. On direct examination this boy testified that the plaintiff in error was out of the cellar for twenty minutes of this half hour but on cross-examination he testified he meant the plaintiff in error was out of the cellar twenty minutes of the half hour while carrying things out to the truck.
Some time during that day the Boorse home was broken into and certain property was stolen, none of which has been recovered or found. Entrance was effected through a cellar window leading into the laundry. Among the brush tracked in by the intruder was a slip of paper on which was typed "Nathan Frischer, 124 Gruman Ave., Newark, N.J."
Frischer testified that he couldn't read or write and that he made a practice of using these slips out of the mailing wrappers of a weekly paper which he received by mail. He testified that he had left one of these slips at the plaintiff in error's store sometime in "the early part of June or around June 23d or so" when he left an order for the repair of a gas stove. He also said that at or about the same time he had given an identical slip to a carpenter, whose name and address he had forgotten but he had given the carpenter's name to the police.
The state introduced a statement given to the police in which the plaintiff in error admitted receiving such a slip from his father at the store and ...