Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The defendants were convicted upon an indictment charging them with the possession of burglar's tools, proscribed by the provisions of N.J.S. 2 A:94-3, and they appeal from the ensuing judgment.
The essential facts are that Police Officer Edward L. Zirkel, a member of the City of Elizabeth Police Department, at about 11:00 o'clock on the night of June 26, 1952, was checking doors "along from Commerce Place down Grand
Street as far as Jefferson Avenue," when his attention was attracted to three men walking toward him through a parking lot; he took a position in a darkened area; the men walked past him at a distance of 10 or 15 feet and stopped to engage in conversation with each other. At that point, they were eight or ten feet on the far side of the first set of railroad tracks, while Zirkel was on the near side of the tracks in the vicinity of a darkened crane. The only words of the conversation that Officer Zirkel could distinctly hear were "the beef house." Grand Street, approximately 200 feet from the railroad tracks, runs parallel thereto in an easterly and westerly direction. Commerce Place extends from east Grand Street a distance of 150 feet before merging with the railroad right of way. The Commerce Place parking lot is on the court house side of the railroad tracks, while the "beef house" is located on the other side of the tracks.
One of the trio then proceeded across the tracks towards the "beef house," while the two defendants went towards Commerce Place. Officer Zirkel waited about ten minutes, then crossed the tracks towards the "beef house," when suddenly he came upon the defendants in the dark, whereupon he directed his flashlight at them. At that time Zirkel was traversing the tracks towards Chestnut Street and the two defendants were proceeding down the tracks in the direction of the "Port" alongside the "beef house" on the far side of the tracks. Zirkel informed them they were under arrest and discovered that the defendant Ligori had a jimmy in his left hand; he observed a sledge hammer, a chisel and a mismated pair of canvas gloves on the ground about three feet from Salernitano's feet, and black gloves at Ligori's feet. Salernitano informed Zirkel that he had a flashlight in his pocket, which was delivered to Zirkel later.
After Zirkel had sent for the patrol wagon, he returned to the scene of the apprehension of the defendants and recovered the other articles which he had previously observed on the ground.
Defendant Ligori informed the police that they could locate their automobile in a parking lot on Commerce Place,
which was about 1,000 feet from the "beef house." Upon an examination thereof, Detective Matiunas and Officer Zirkel discovered a small cold chisel, two small crowbars and a white and yellow canvas glove. Prior to examining the automobile Detective Matiunas engaged in conversation with the defendant Ligori, who stated that he was at the scene of his arrest as the result of a rendezvous with a "colored girl" whom he had met at a tavern and had selected the back of the "beef house" as the place of assignation.
After Officer Zirkel and Detective Matiunas had returned to headquarters from their investigation of the automobile they again questioned the defendants, whereupon they gave conflicting stories as to their activities of the evening. The defendant Ligori stated that the tools found in his car were kept there in the event it was ever necessary to change a tire, but Ligori changed this story several days later when he said that he had been unable to get a plumber and that he was trying to repair his boiler. The white and yellow canvas glove found in the automobile matched the odd glove found at the scene of the defendants' arrest.
Detective Matiunas, who testified as an expert on burglar's tools, expressed the opinion that the tools found upon the defendants and at the scene of their arrest were "burglar's tools" conceding, however, that they could be used for other purposes. Although the articles found in the automobile were not admitted in evidence, on the ground that they were not set forth in the indictment, Detective Matiunas was permitted to ...