On appeal from the Monmouth County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
Defendants appeal from a judgment of the Monmouth County Court entered following their conviction by a jury on indictments charging them with robbery and armed robbery. A motion for a new trial was made to the trial court and denied, following which an appeal was taken to the Appellate Division. While pending there we certified the cause on our own motion.
One Clara Bernstein, who lived in Elberon, arrived there from New York on February 12, 1952, with a paper bag containing approximately $2,766 for use as the payroll of an Asbury Park factory. When she entered the hallway of her apartment at about 6:50 P.M. she saw a man on the stairway. She thought it was a neighbor and said, "Artie." This man said, "No, it is not Artie," she walked into the house and he walked out. She then got her dog and went out into the street to give it a walk and returned in a few minutes. As she walked her dog she noticed a strange car parked in front of her door and made a mental notation of the license number. She went into her kitchen, heard a door open and
walked into the dining room when a man pointed a gun at her and as she turned another man was "face to face with her and only a half foot away." She said to this man, "Well, what is it you want?" whereupon one of them said "This is what we want," and one of them picked up the envelope with the money in it and walked out. Both of the men had guns.
Mrs. Bernstein immediately notified the police of the robbery and gave them a description of the two men and also the license number of the car she had observed while walking her dog. She told the police that the number of this car was "504" and that one of the serial numbers was "M."
Based upon the information which Mrs. Bernstein gave to the police, she was requested, two weeks later, to make identifications of people in two police lineups, at one of which she identified the defendant Picciotti and at the other identified the defendant Scallo. At the trial she also identified both of them from the witness stand as being the men who had committed the robbery in her apartment. She was the only witness for the State as to the robbery itself. Neither of the defendants took the stand in their own defense, which consisted of alibis. In an endeavor to sustain these alibis the defendant Picciotti produced four witnesses while Scallo produced three.
At the close of the State's case a motion for a directed verdict of acquittal was made and denied. Motions for directed verdicts have been abolished, Rule 2:7-7(b), but taking the motion as one for judgment of acquittal, we consider it without merit. The defense contends that the physical description of the defendants given to the police by Mrs. Bernstein after the robbery did not tally with their actual physical stature, and that at the lineups she was not absolutely positive that these were the men involved. At the trial her identification was positive, and with the additional fact that a car owned by the defendant Picciotti bore license No. M J 504, there was clearly sufficient evidence to vitiate a motion for a judgment of acquittal. The test, on motion of a defendant for judgment of acquittal, is whether
there is any legal evidence before the jury from which an inference of guilt can be legitimately drawn. State v. Bricker, Jr., 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).
On February 27, 1952 police officers went to Picciotti's home and questioned him and his wife. According to the testimony of one of the police officers, Mrs. Picciotti told him that her husband had left his house at 6:00 o'clock the night of the crime and that he went out with Scallo. Of course, if this testimony was true, Picciotti's alibi was seriously shaken. The officer testified further that though Picciotti was present during this conversation he remained silent and did not contradict his wife.
The point of argument of defendants is that the court erred in permitting the State to introduce this testimony of statements made by the defendant's wife in his presence, in the absence of a warning that ...