On appeal from Municipal Court of the City of Newark.
The opinion of the court was delivered by Waugh, J.c.c.
Defendant Otha Brandon was charged by complaint dated May 27, 1954, that he "did at 261 Prince Street commit an act of malicious mischief in that he did remove certain plumbing and sanitary fixtures, coal range and other fixtures," in violation of N.J.S. 2 A:170-36.
N.J.S. 2 A:170-36 provides:
"Any person who maliciously destroys, defaces, damages or injures property, may, where the damage does not exceed the sum of $200, be adjudged a disorderly person."
Upon trial at the Municipal Court of the City of Newark, he was convicted. Upon appeal to the County Court, the following facts developed at the trial before me:
A person by the name of Lucille Harris rented certain premises in the City of Newark from one Isaac Hendler, father of the complaining witness in the case. Mrs. Harris, while she was tenant, made a deal for the sale of her goods and chattels to the defendant Otha Brandon, whereupon Brandon entered into a lease with Hendler (S-2 in evidence) to take possession of the property as tenant. Thereafter, a renewal lease (S-1 in evidence) was entered into between landlord and tenant.
Both Mrs. Harris and defendant Brandon had some very fuzzy notion about title to or ownership of certain plumbing fixtures installed by Mrs. Harris, including pipes installed along the walls and sold by her to defendant Brandon. It is clear, however, that leases S-1 and S-2 in evidence and the prior lease between Mrs. Harris and Hendler provided that "all improvements made upon the premises should belong to the landlord." Defendant denied any injury to the landlord's freehold. He did not even admit to removing the fixtures. However, I find beyond reasonable doubt that defendant Brandon did in fact remove the fixtures before his term ended, and in so doing damaged the freehold owned by Mr. Hendler.
It is just as clear, however, that Brandon removed the fixtures in the mistaken belief that having "purchased"
them from Mrs. Harris, he was entitled to them. The removal was "unlawful" in that it was without legal cause or excuse. See State v. Orecchio , 27 N.J. Super. 484 (App. Div. 1953), at page 489, affirmed 16 N.J. 125 (1954).
I find further from the facts that the amount of damages done to the freehold, including walls and plumbing, was $195 without taking into consideration the value of the fixtures removed. It is clear that the value of such fixtures exceeded the sum of $5 and brought the actual damage to the property belonging to the father of complaining witness well above the $200 limitation as provided in N.J.S. 2 A:170-36.
Defendant urges firstly that he actually is charged with larceny and that unless he waives indictment and jury trial under N.J.S. 2 A:8-21, he may not be tried before the magistrate; secondly, that the State is attempting to split one criminal offense, namely, the act of the removal of the fixtures and resultant damage to the freehold, into two parts by charging malicious mischief by way of damage to the freehold to the extent of $195, bringing him within the $200 limitation of N.J.S. 2 A:170-36, thus leaving open a possible charge of larceny or other complaint for the ...