Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Defendant was convicted of the crimes of breaking and entering and of stealing $4,682. He was sentenced to State Prison for consecutive terms of three and a half to five years on each conviction. He appeals from the conviction and sentences imposed.
On Friday, September 28, 1956, at about 8:30 P.M., the cause for respondent (Mr. Warren W. Wilentz , Prose-Milton Saltzman secured his business premises, the Raritan Lumber Company, for the night. The building, which is devoted to use in the business as an office and warehouse, faces upon Route 18 in East Brunswick. The rear property line of the premises is contiguous to the Old Bridge Turnpike. Saltzman returned on Saturday, September 29, and found that the safe used in the business for the safe-keeping of money, records, etc., had been moved from its usual location in the office of the building to the warehouse portion of the building. The safe had been forced open. The money, approximately $4,600, which had been placed in the safe the evening before, was missing. The business records were strewn about on the floor. Further investigation disclosed that an overhead door at the rear of the building had been forced open. The premises are protected along the rear property line by a cyclone-type fence, surmounted with three strands of barbed wire. One three-strand section of the barbed wire had been severed. Wooden planks were on the ground on both sides of the fence near the place where the wires had been cut. Saltzman called the police.
Three persons were arrested and separately indicted on two counts, i.e. , breaking and entering with intent to steal, and stealing $4,682, each count relating to the premises and property of the Raritan Lumber Company. Two of these
persons, Donald Tremper and Herbert Flanagan, pleaded non vult to the charges and each was sentenced, prior to defendant's trial, to State Prison for a concurrent term of seven to ten years on each count of the indictment. They were called as witnesses for the State at Baechlor's trial.
Tremper testified as follows: He drove the automobile used for transportation to and from the scene. He and Baechlor had visited the premises a few days prior to the robbery for the purpose of "casing" the layout. They posed as customers during this preliminary inspection. While there, Tremper observed a small Mosler safe. After the inspection he discussed the prospects of success with Baechlor. The gist of this discussion was that the safe was a difficult one to break and that access to the premises presented problems. Two or three days later Tremper, Baechlor and Flanagan decided to break into the building. Tremper chauffeured the other two to a place on the roadway near the rear fenced-in portion of the premises at about 8 P.M. The building was still occupied. They bided their time at a nearby roadside diner and returned to the rear of the building at about 9 P.M. Tremper left Baechlor and Flanagan there and returned for them at about 9:40 P.M. Baechlor then told him that he and Flanagan had opened the safe and taken a few hundred dollars from it. Tremper received $26 of the proceeds.
Flanagan, who was called as a witness for the State, had a lapse of memory on the stand. He recalled that he entered the Lumber Company, probably from the rear, but did not recall how this was accomplished. He recalled that some one entered with him and helped him open the safe, but he did not recall who that was. He did not recall their earlier arrival, later return to the scene, or waiting at a diner during the interim. He did not recall how much money was discovered in the safe. He could not identify a crowbar, found at the site, as having been brought there by him, although he did recall bringing two bars upon the premises. He did not recall moving a typewriter which was located atop the safe. He did not recall whether, upon
leaving the premises, he climbed a fence. He recalled that Tremper was waiting in a car for him after the safe robbery and that he and an unidentified third person left with Tremper. Thereupon, the prosecutor's examination proceeded as follows:
"Q. The person that was with you that you don't recall who it was, other than Donald Tremper who was driving the car? A. That is right.
Q. Do you recall whether he was a stranger to you or not? A. I don't think he was a stranger.
Q. You don't think he was a stranger? You had seen him before and knew him before? A. Yes.
Q. Where did you meet him on September 28? A. He was brought over to me by Tremper.
Q. He was brought over by Tremper? A. That is right.
Q. Did you know this person? A. What do you mean by knowing him? He might have been an acquaintance of mine.
Q. Was he an acquaintance? A. I had been out with the party on a previous occasion.
Q. Where did you go with him? A. Where did I go?
Q. Yes. You had been out with him on a previous occasion? A. I went out on another job with him, another safe job.
Q. Was it a safe job that you went out on with him? A. Yes.
Q. In other words, you had done a safe job with this other person and you did this safe job with this person? A. That is right.
Q. And you don't recall who it is? A. No.
Q. Do you recall being questioned by Trooper Alvin Hammond of the State Police? Do you recall being questioned by this gentleman? A. I recall speaking to this man, but I was under the impression he was one of the troopers that came to my house.
Q. Yes, he is a trooper. Do you recall speaking to him? Do you recall telling him about this safe job that you had been on?
Mr. Manzione: I have to object to this. This man has given no testimony injurious to the prosecutor's case. All he is saying is he doesn't recall, and similar statements. Now, if he is attempting to impeach his own witness by prior inconsistent statements, I think the matter is objectionable. If he had given injurious testimony, I think it would be otherwise.
The Court: I will allow the question.
By Mr. Kolodziej: Q. You spoke with Trooper Hammond?
The Court: He said he did.
Q. Did you tell Trooper Hammond the person that was with you that night? A. I don't recall that, either.
Q. You don't recall? Did you tell Trooper Hammond that Mr. Baechlor was with you? A. No, I don't recall saying that.
Q. I beg your pardon? A. I don't recall saying that.
Q. Could you have told him that? Is it possible that you told him that? A. I have to clarify that statement.
Q. All right, go ahead. A. I was questioned on twenty safe jobs, by I would say a conservative thirty police, and what I have said or might have said I don't recall what was said in all them conversations, referring to all these safe jobs.
Q. On how many of these twenty safe jobs was this other person whom you can't remember the name of, with you? A. I didn't quite get that.
Q. You said you were questioned about twenty safe jobs. Did you commit the twenty safe jobs? A. I don't feel inclined to answer that.
Q. On how may safe jobs was this other person?
Mr. Manzione: I have to object. My client is on trial for a specific instance here. The prosecutor is fishing all over the place. What this man has done in the past certainly has no bearing on my client's position here today."
The prosecutor thereupon voluntarily discontinued this line of examination.
The entire cross-examination of this witness follows:
"Q. Do you recognize the man who was with you that night in this courtroom today? A. I don't recall who was with me."
Trooper Hammond was called and testified concerning the condition of the premises when he arrived on the scene on Monday, October 1, 1956. He recounted his interview with Flanagan, over objection of defense counsel. Flanagan, he testified, told him that he, Baechlor and Tremper did the job. Flanagan was taken to the scene and indicated to the trooper how the entrance had been accomplished. The court properly charged the jury that this testimony was admitted for the sole purpose of neutralizing Flanagan's testimony.
Defendant first asserts that it was prejudicial error to permit Flanagan to testify that a person whose name he did not remember had been with him on another safe robbery. His point is "that there is no question that the unnamed person referred to by Flanagan was already identified by Tremper as the defendant Baechlor," and that this testimony by Flanagan permitted the State to place the defendant's character in issue before defendant had elected to
introduce testimony as to his character. He cites as authority State v. Samurine , 47 N.J. Super. 172 (App. Div. 1957), reversed on other grounds 27 N.J. 322 (1958), and State v. D'Ippolito , 19 N.J. 540 (1955).
There is no doubt that in a criminal case the State cannot offer evidence of the character or reputation of the defendant unless defendant first raises that issue. State v. D'Ippolito, supra , 19 N.J. at page 546, and cases cited.
In the Samurine case, the State's witness, a lawyer, and the person from whom it was alleged defendant had obtained money under false pretense, twice referred to Samurine's criminal past as a factor in moving him to consult the prosecutor. This court found that these references "were gratuitous if not deliberate, coming as they did from the mouth of a lawyer," and that neither the striking of these remarks from the record nor the cautionary instruction by the trial court to the jury would cure their possible prejudicial influence.
In the D'Ippolito case the issue of defendant's character was raised by the prosecutor in his summation to the jury. The prosecutor commented on defendant's failure to call witnesses to testify as to his good character. The Supreme Court reversed the conviction. It found that the prosecutor, in commenting as he did, was attempting to do indirectly ...