Eastwood, Freund and Francis. The opinion of the court was delivered by Francis, J.A.D.
Appellant was indicted on two counts: The first charged him with breaking and entering the building of the Stelton Recreation Center in Raritan Township, with intent to steal money, goods and chattels of the Center, in violation of N.J.S. 2 A:94-1; the second charged him with the possession of burglary tools contrary to N.J.S. 2 A:94-3. The second count was dismissed on motion at the close of the State's case. The jury convicted appellant on the first count and he now appeals.
Motions for judgment of acquittal were made at the close of the State's proof and at the end of the entire case on the ground of failure to establish a breaking and entry with intent to steal. The denial thereof is the principal ground of appeal. Also urged is that error was committed in the admission of the alleged burglary tools which are specifically enumerated in the second count of the indictment.
The proof offered by the State showed that shortly after 2 A.M. on November 30, 1953, two police officers who were patrolling in a radio car received a call as the result of which they drove to the premises of the Stelton Recreation Center on the northeast corner of Plainfield Avenue and Route 27 in Raritan, N.J.
In the rear of the main building are a store and a house and garage, and apparently around two or three sides of the rear an eight-foot high fence had been constructed.
Upon arrival one of the officers went to the front of the building and the other walked down Plainfield Avenue toward the rear. On reaching the fence gate he shook it to discover if it was open. This shaking apparently disturbed some bottles inside, and almost immediately thereafter he saw three pairs of hands come to the top of the fence. The officer called for help as one man dropped to the street, crossed Plainfield Avenue and disappeared into a patch of trees, in spite of the warning shot fired over his head.
A second person jumped down from the fence; the officer called for him to halt and set out in pursuit. He chased
this individual, firing two warning shots and not losing sight of him at any time. About a hundred yards away from the fence the prowler stopped and gave himself up, saying, "You got me. You got me." This was O'Leary. He was dressed in a dark suit, felt hat and woolen shirt, and was wearing gloves.
O'Leary was taken back to the Center while the premises and the area within the fence and adjacent to the rear of the store building were searched.
Inspection of the rear door showed that the molding around it "had been pried loose," "there were several holes punched through the panel of the door" and "the door was ajar, partially ajar." About 10 to 15 feet away from the door they found a large crowbar and a blue barracks bag lying on the ground. The bag contained a hammer, a pinchbar, an iron bar, a cold chisel, four small chisels, five drills, a reamer, a Stilson wrench and a brace for a brace and bit. These articles were admitted in evidence over objection.
No proof was offered to show that anything was stolen or that any one had actually been inside the Center. Nor was there any evidence as to the condition of the rear entrance door before the alleged break, or whether the door ...