Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[35 NJSuper Page 569] Defendant was tried and convicted in the Essex County Court before a judge sitting without a jury (defendant had waived trial by jury) of the crime of receiving stolen property, in violation of N.J.S. 2 A:139-1, formerly N.J.S.A. 2:164-1. The indictment charged that on January 2, 1954, at Newark, defendant "did knowingly receive and have 1 safe of the value of $100.00, the goods and chattels of Economy Faucet Company, a corporation, before then stolen, * * *." Soon after conviction the court sentenced defendant to State Prison for a minimum term of
18 months and a maximum term of 4 years. He now appeals, claiming that (1) to sustain a conviction based entirely upon circumstantial evidence, the evidence must be consistent with defendant's guilt and inconsistent with any rational theory of innocence; the circumstantial evidence on which the State's case is based is as fairly consistent with defendant's innocence as it is with his guilt; (2) the verdict was against the weight of the evidence; (3) the court should have granted defendant's motion for judgment of acquittal at the close of the State's case; and (4) there was no proof of knowledge by defendant that the safe was stolen.
The State produced three witnesses to establish the crime: Crane, Caliendo and Scarpa. Crane, an officer of the Economy Faucet Company, identified the safe as the one stolen from the company premises sometime between December 31, 1953 and January 2, 1954. Caliendo and Scarpa testified they had stolen the safe and that shortly after the theft, between 12:30 and 1:00 A.M. on January 2, 1954, they transported it in their car to defendant's home, where all three opened it down in the basement.
Their testimony was to the effect that they rode around for some time after stealing the safe and eventually and without prearrangement went to Vitale's home and rang the doorbell until he came to the door some 15 minutes later. They told Vitale they had found the safe "down in the dumps" earlier that day and asked him to help them open it. He didn't believe their story and, in fact, asked if the safe were stolen. He said he "didn't want to get into trouble in nothing," he didn't "want to get involved." Caliendo and Scarpa had to repeat their story about finding the safe on the dumps four or five times; finally defendant, though still suspicious as to how they had obtained the safe, consented to their bringing it down into the cellar. All three carried the safe. Defendant provided the tools to break it open and he assisted in forcing the safe door. All three then examined the contents and found nothing of value. They then put everything back into the safe, replaced and closed the door, and carried the safe upstairs and out to the car. Repeating
earlier testimony, Caliendo stated that defendant was not sure whether the safe was stolen or found on the dumps; that he did not want to get into any trouble, and so defendant wiped the fingerprints off the safe before it was taken away. Caliendo and Scarpa subsequently threw the safe into the Passaic River, from which it was later recovered by the police.
Counsel for defendant cross-examined only Crane. At the close of the State's case he moved for judgment of acquittal on the ground that the State had failed to prove knowledge by defendant of the fact that the safe was stolen property, or that defendant had actually received or had possession of such property. The motion was denied. Defendant failed to take the stand or to offer any evidence in his own behalf. The court then found him guilty as charged and subsequently sentenced him to a term in State Prison.
Defendant first argues there must be specific evidence of knowledge that the article was stolen before there may be a conviction for receiving stolen property. His contention is that the conviction was based entirely on circumstantial evidence, and that to sustain it the evidence "must be consistent with the guilt of the defendant and inconsistent with any rational theory of innocence," citing State v. Donohue , 2 N.J. 381 (1949); State v. Elliott , 23 N.J. Super. 311 (App. Div. 1952); State v. Jusiak , 16 N.J. Super. 177 (App. Div. 1951); and State v. Fox , 12 N.J. Super. 132 (App. Div. 1951). The State counters with the argument that (1) the circumstances under which defendant received and had possession of the stolen safe are not only consistent with the theory of his guilt but also not fairly consistent with any theory of innocence; and (2) under the statute, N.J.S. 2 A:139-1, the court was permitted to find defendant guilty on the basis that he had possession of the article less than one year from its theft and failed to submit proof that would exculpate him under any of the five exceptions set forth in the statute and mentioned hereafter.
The judgment of conviction must be affirmed. The State adduced evidence bearing upon defendant's knowledge that the safe had been stolen which can be classified as direct,
rather than circumstantial. And if the evidence bearing upon knowledge be regarded as circumstantial, that evidence was not consistent with any rational theory of innocence.
Initially, it is to be observed that there can be no question that the safe was stolen; the fact is admitted. This distinguishes the present case from State v. Fox , 12 N.J. Super. 132 (App. Div. 1951), upon which defendant relies, for the court there found that the proofs were consistent with the hypothesis that the ...