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State v. Bentley

Decided: August 21, 1957.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEWITT BENTLEY, DEFENDANT-APPELLANT



Goldmann, Knight and Waesche. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Appeal from a judgment of conviction for grand larceny.

In March 1955 the Hudson County grand jury indicted Dewitt Bentley, alias William Fischer, and John Doe (a person whose true name was unknown), charging them with the crime of grand larceny in two counts, contrary to the provisions of N.J.S. 2 A:119-2 and 2 A:139-1. Defendant and his accomplice, who is still unidentified, were alleged to have swindled a woman out of $450 by means of an old confidence game, commonly known as the "pigeon drop." Bentley was apprehended at his home in Pittsburgh, Pennsylvania, on a fugitive warrant issued by the New Jersey authorities. He resisted extradition, and after a hearing upon a writ of habeas corpus was returned to Hudson County to await trial. He was arraigned June 15, 1956, pleaded not guilty and bail was fixed at $10,000. Unable to make bail, defendant was remanded to the county jail to await trial.

In reply to the State's demand under R.R. 3:5-9(a) for a bill of particulars in the event he intended to rely upon an alibi, defendant wrote a letter to the prosecutor listing the names and addresses of over 20 persons, residents

of Washington, D.C., upon whom he would rely to establish that defense. Trial was set for October 4, 1956. On that date the court ordered the matter postponed until February 1957 and assigned counsel to defend Bentley. Counsel promptly moved that the State furnish him with a bill of particulars setting forth the time of day and specific place of the alleged crime. R.R. 3:5-9(b). Such particulars were furnished November 5, 1956, the State advising that the crime took place about 10 A.M., September 10, 1954, at Clifton Place and Summit Avenue, Jersey City, N.J. Defendant's counsel then made formal reply to the State's demand for a bill of particulars, listing three residents of Washington, D.C., upon whom Bentley would rely to establish his alibi that he was in Washington at the time of the alleged crime: Wesley S. Williams, an attorney-at-law; Mrs. Eloise Wright, with whom he claimed he was residing on September 10, 1954, and Mr. Ellis Wright, whom he said he visited immediately after leaving attorney Williams' office on that date.

Counsel for defendant then moved for an order to take the oral deposition of Mr. Williams in Washington. The order was granted December 6, 1956 and the deposition taken. Mr. Williams testified that defendant had been with him in Washington from 9:15 A.M. to 1:30 P.M. on the date of the alleged crime. He claimed that defendant had come to consult him about a criminal case then pending against his wife and another woman and that he had given defendant a receipt, noted on the back of one of his professional cards, for payment on account of counsel fee.

After a two-day trial the jury found defendant guilty on the first count of the indictment, the second count having been dismissed. The County Court judge subsequently sentenced Bentley to State Prison for a five- to seven-year term.

Defendant was given leave to appeal in forma pauperis. He argues five points: (1) denial of his constitutional right to obtain witnesses in his defense, 1947 Const., Art. I, par. 10; (2) denial of his constitutional right to the effective

assistance of counsel, under the same paragraph; (3) loss of the court's jurisdiction because he was not present at the pretrial conference, "until the end"; (4) denial of his constitutional right to reasonable bail, 1947 Const., Art. I, par. 12; and (5) prejudicial error by the trial court in permitting the State to inquire about previous arrests where no conviction resulted.

We may observe, preliminarily, that none of the points raised by defendant is supported by the inadequate record presented to this court. R.R. 1:6-1 and 1:7-1. His claim that as an indigent he was denied a stenographic transcript is a half-truth, for he never applied to the Appellate Division for one, although the County Court judge, in denying his petition for such a transcript, informed him of his right to do so, referring defendant to N.J.S. 2 A:152-17 (L. 1956, c. 134):

"* * * Where such person [convicted of any crime] appeals to the Appellate Division of the Superior Court and copies of the transcript of the proceedings in the trial court are needed therefor he may make a similar application [for such copy of the transcript of the record, testimony and proceedings at the trial as may be necessary] to such court which, being satisfied of the facts stated and the sufficiency ...


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