Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
This appeal brings up for review the conviction of defendant-appellant (hereinafter called Vigorito) under an indictment charging him with receiving stolen property, consisting of 16 rolls of Dobby Luana 100% acetate material, of the value of $676.80, and the property of Grant Dyeing & Finishing Co., at Paterson, New Jersey, on May 23, 1946, "well knowing the said property, goods and chattels to have been feloniously stolen, * * *"
Appellant has assigned twenty grounds of appeal, which may be conveniently grouped under five headings, requiring consideration and discussion. They are: (1) did the court err in refusing to permit cross-examination of the state's witness, Robert Santillo, as to whether he had been sentenced on a plea of non-vult to an indictment charging him and one Michael
Bonsick with breaking, entering, larceny, and receiving of the alleged stolen goods?; (2) whether the court erred and prejudiced the defendant's case in the comments he made at the time he refused to permit the cross-examination of Santillo as to whether he had been sentenced; (3) whether the court erred in charging the applicable law; (4) whether the court erred in failing to charge the specific statute (R.S. 2:164-1) to the jury; and (5) whether the verdict was against the weight of the evidence.
The facts briefly are these: Michael Bonsick and Robert Santillo were employees of the Grant Dyeing & Finishing Company, of Paterson, New Jersey. They conceived and executed a plan of stealing certain dress material, having a value as alleged in the indictment of $676.80, then in the possession of their employer as a bailee. An investigation of the crime led to the arrest and indictment of both Bonsick and Santillo, who pleaded non-vult to the charges. Bonsick was sentenced to a term in the State Prison, while Santillo was still awaiting sentence at the time of the trial of the defendant. Prior to the theft, Santillo arranged with one Michael Casale, his landlord, who was engaged in the milk delivery business and whom he had known for several years, to store the material in his milk shed, located on the rear of his mother's property, about six houses away from Casale's home. Casale agreed to get a purchaser for the goods and produced Vigorito as such buyer. Vigorito was a junk dealer and bought remnants.
On the day of the theft Santillo met Casale and told him that he "would have the stuff" the next morning and that it would be put in the shed. On the day of the theft Casale informed Vigorito that Santillo expected to obtain the material that night, and told Vigorito to come around to the milk shed the following morning. At the appointed time and place, Vigorito met Casale and Santillo and, after some dickering, Vigorito paid Santillo a sum in cash testified to have been somewhere between $550 and $575. Later on in the day the defendant came to the milk shed and removed the rolls which he thereafter disposed of to an undisclosed purchaser. Parenthetically, it may be observed that Michael Casale did not receive any money out
of the transaction. He likewise has pleaded non-vult to the crime, and was awaiting sentence at the time of trial.
It is said under (1) above that the trial court erred in refusing to permit defendant to cross-examine the witness Santillo as to whether he had been sentenced on his plea of nonvult to the indictment. During Santillo's cross-examination the following exchange occurred:
"Q. Now, Mr. Santillo, you have not been sentenced in that case yet, have you?
"Mr. Collester: Objected to as improper.
"The Court: Yes, that is up to this Court. The Court has ninety days within ...