Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The grand jury of Passaic County indicted Alan Yedwab, Otto Stillwachs and Michael Fava for conspiracy to cheat and defraud the Niagara Fire Insurance Company of New York by means of a simulated burglary at Yedwab's home. They were tried together after denial of motions for severance. Yedwab alone testified in his defense at the trial; the other two did not take the witness stand. Yedwab and Stillwachs were convicted and now appeal. Fava was acquitted.
Yedwab seeks a reversal contending that (1) his motion for a judgment of acquittal, made at the close of the State's
case, should have been granted; (2) statements of Fava uttered to a third person out of his presence were erroneously admitted against him, and (3) it was error not to grant him a separate trial.
Stillwachs' appeal is predicated solely upon the ground that the Fava declarations referred to were not admissible against him.
The clearest sequence for treatment of the various questions raised seems to be to take up first Yedwab's motion for a judgment of acquittal. In doing so, regard must be had for the principle that when such a motion is made the propriety of its denial is reviewed on appeal solely on the state of proof as it affected him at the time the trial court was called upon to rule. The fact that the defendant later testified in his own behalf and in doing so strengthened the case of the prosecution, cannot be considered. State v. Fox , 12 N.J. Super. 132 (App. Div. 1951), and see State v. Pearson , 39 N.J. Super. 50, 57 (App. Div. 1956).
Prior to and at the time of the events to be discussed, Yedwab operated an insurance agency in Paterson, New Jersey. He lived on the first floor of a two and a half story frame dwelling at 379 East 29th Street in that city; tenants occupied the other two floors. As agent for the Niagara Fire Insurance Company he had written a policy of insurance which protected him to the extent of $13,745 against loss by burglary at his home of jewelry, furs, furniture, clothes and sundry personal effects. The policy in force at the time in question ran from January 25, 1953 to January 25, 1956; it was a renewal of an earlier one. "Burglary" is defined therein as
"the felonious abstraction of the insured property from within a building or room by any person or persons making felonious entry therein by actual force and violence of which there shall be visible marks made upon the exterior of such premises at the place of entry by tools, explosives, electricity or chemicals."
The main case of the State shows that Stillwachs maintained a garage at 566 East 22nd Street, Paterson. It is
apparent (without regard to his two statements to the police) that he and Yedwab were acquainted. Fava's connection with Stillwachs is not clear but he was in and about the garage and drove Stillwachs' car on the occasions referred to in the evidence. There is no proof that he knew or had ever spoken to Yedwab.
On May 23, 1954 Stillwachs gave one of his two statements to the police. It was admitted in evidence against him alone and the jury properly instructed as to that limitation. It says:
"Sometime during November 1953 Allen [ sic ] Yedwab and myself discussed I believe at his home a program an arrange [ sic ] to larcentate his home. The purpose was to obtain legal compensation for a theft loss. After arrangements had been made with Mr. Yedwab and myself the date for the larceny was arranged for New Year's Eve while Mr. Yedwab had arranged to be away from the premises with his family. On New Year's Eve before midnight I and Michael Fave [ sic ] removed a pane of glass from the front door and entered into the foyer, removed a door by removing three hinge pins and then entered into the living quarters. We proceeded into the bedroom and removing about 4 suits, suede jacket, 2 fur jackets, a wire recorder, a set of women's golf clubs and golf bag, 2 lamps. We then left by the front door and got into my car which was parked next door and I drove to my garage on East 22nd Street and left the car there with all the articles in it. I took another car and went home alone. I kept the stuff about a month in the office upstairs and I then returned it to Mr. Yedwab except the lamps which I broke up and destroyed. * * *"
This highly inculpatory revelation by Stillwachs undoubtedly accounts for the restricted nature of the attack upon his conviction. However, it cannot be resorted to in any way against Yedwab. The basis upon which his guilt could have been adjudged must be found elsewhere in the record.
Yedwab and his wife left home at about 7 or 7:30 P.M. on New Year's Eve, December 31, 1953. Their daughter went out for the evening also. Between 2 and 2:30 A.M. the daughter and her escort were passing on their way to another destination and she noticed that the porch light was out. So she stopped and went in. On doing so, she
discovered that the entrance doors to the house and their apartment had been opened and the place ransacked. The police arrived shortly thereafter, surveyed the situation and began their investigation. Efforts to reach Yedwab and ...