Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.
The appellant was convicted by a jury of receiving paint brushes that had been stolen from the M.B. Paint Specialties Company, contrary to the provisions of R.S. 2:164-1.
One of the reasons urged for reversal is the denial of appellant's motion for acquittal at the conclusion of the State's
case. Such a motion now takes the place of a motion to direct a verdict for the defendant. Rule 2:7-7. Before the reorganization of our courts two years ago, a motion to direct a verdict was addressed to the discretion of the trial court. But if, at the conclusion of the State's case, the evidence was insufficient to make a case for the jury, the denial of a motion for a direction made at that time was considered to work manifest wrong or injury to the accused and to be ground for reversal. This was so, even though later in the case evidence was received sufficient to establish the appellant's guilt. Herein the rule was contrary to that followed in civil cases. State v. Pruser , 127 N.J.L. 97 (Sup. Ct. 1941). It was thought that if the civil rule were applied in criminal prosecutions, it would come perilously near compelling the accused to convict himself, since he must either forego making a defense on the merits or else risk having isolated bits of his testimony used against him to cure the deficiencies in the State's case. State v. Bacheller , 89 N.J.L. 433 (Sup. Ct. 1916). The substitution of a motion for judgment of acquittal in the place of a motion for a directed verdict, pursuant to Rule 2:7-7, seems to be a change of name rather than of substance. The denial of the motion still raises a question on appeal that must be decided without regard to the evidence presented later in the trial. We turn to a consideration of the evidence.
The State proved that the M.B. Paint Specialties Company was engaged in the manufacture of paint brushes, called Ace brushes from an identification mark stamped on them. On February 12, 1949, or early the next morning, someone broke into their factory and stole 34 1/2 dozen brushes of sundry sizes.
Fox, the appellant, was in the business of selling paint and paint brushes. One day around the middle of February, a painter named Rausch told him, "A man approached me last night. He said he had some brushes for sale." The man was another painter, La Rosa. Forthwith by telephone an appointment was made and Rausch and Fox drove to La Rosa's place of residence in East Orange. There La Rosa got into the car and directed them to an address on Norwood Street, Newark, where there was a garage which La Rosa
rented. He went to the garage and in a few minutes returned, carrying a box containing 40 or 50 Ace paint brushes. La Rosa offered them for sale at $7 or $8 apiece for one size, and $6 or $7 for a smaller brush. After bargaining and figuring for five or ten minutes, a deal was made. Fox paid around $300 or $350 in cash for the brushes and La Rosa departed. But first Fox gave Rausch $5 and La Rosa gave him two brushes. La Rosa testified that he had bought the brushes not very long before he sold to Fox. But evidently he did not buy from the M.B. Paint Specialties Company, for he said, "I didn't know where they came from," and that he was told "they were surplus brushes."
In March, La Rosa sold appellant more Ace brushes -- about the same number or a few less than he had sold him in February. This time, appellant paid him for the brushes $381 by check. "By that time," La Rosa testified, "I knew that there was something phoney about the brushes and I didn't want any checks." But he added, "I couldn't tell him that because then I guessed the sale would be lost."
Such, in substance, was the evidence presented by the State. The recognized test employed upon a motion to direct an acquittal is whether or not there is any legal evidence before the jury from which an inference of guilt can be legitimately drawn. State v. Bricker , 99 N.J.L. 521 (E. & A. 1924); State v. Cammarata , 12 N.J. Misc. 115 (Sup. Ct. 1934); affirmed, 114 N.J.L. 274 (E. & A. 1935). The statute, R.S. 2:164-1, shifts the burden of going forward if a defendant is shown to possess stolen goods within one year after the theft. But there was no direct proof that the brushes purchased by Fox were some of the brushes stolen on February 12, or at any other certain time. Indeed, there was no direct proof that the brushes which Fox bought had been stolen at all, or, assuming that they had been stolen, that he was aware of the fact. So we come to the question, Were the circumstances which the State proved, such that a jury could properly infer that the brushes had been stolen?
In order to justify a conviction, the circumstances on which the State relies must be consistent ...