For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Proctor, J. Wachenfeld, J., concurring in result.
The defendant was tried in the Essex County Court upon an indictment charging him with (1) willfully entering the room of Estelle Grossbardt with intent to steal in violation of N.J.S.A. 2 A:94-1, and (2) stealing her platinum diamond ring valued at $2,750 in violation of N.J.S.A. 2 A:119-2. The jury was unable to reach a verdict on the first count and as to that count a mistrial was declared. The jury rendered a verdict of guilty on the second count and judgment was entered thereon. On defendant's appeal the Appellate Division reversed the conviction, one judge dissenting. 51 N.J. Super. 150 (1958). The State appeals from that judgment. N.J. Const., Art. VI, § 5, par. 1; R.R. 1:2-1(b).
The State proved at the trial that Mrs. Estelle Grossbardt, accompanied by her two children, ten and two years of age, and a governess, spent the summer of 1956 at the Goldman Hotel in West Orange, New Jersey. Her husband joined them on weekends. Mrs. Grossbardt, her children and her husband occupied the same room while the governess occupied a separate room. Mrs. Grossbardt's room was located on the ground floor of the hotel. Access to the room was
off a central corridor which in one direction led to the main lobby at the front of the hotel, and in the other direction to a side entrance door opening into the parking lot and in the rear of the corridor to a door opening into the swimming pool area. Because it was necessary to provide her children with access to the room the door was always left unlocked except when Mrs. Grossbardt retired for the night. She kept her jewelry in an unlocked jewel box on the top of the dresser in her room.
On Sunday evening, July 29, 1956, Mrs. Grossbardt attended a social function at the hotel and wore some of her jewelry, including the ring mentioned in the indictment and a gold charm bracelet. She returned to her room sometime after midnight, placed the jewelry in her jewel box and retired. The following day, July 30, Mrs. Grossbardt left the room at about 9 A.M., and her husband remained there until about 11 A.M., when he returned to the city, leaving the room unlocked. Mrs. Grossbardt had no further occasion to open her jewel box until 7 P.M. on Tuesday, July 31. At that time she discovered that her diamond ring, her charm bracelet and other articles of her jewelry were missing. She immediately notified the proprietors of the hotel and they in turn notified the West Orange police. The police made an investigation the same evening and sent out a teletype message containing a description of the missing jewelry. The missing charm bracelet was pawned at the Lincoln Square Pawn Brokers in New York City on Monday, July 30, 1956, between 3:30 P.M. and 4:30 P.M. The pawn broker's slip showed that the bracelet was pawned for $50 in the name of "Max Doreshorne." The State's handwriting expert identified the handwriting on the pawn slip as that of the defendant. His opinion was based upon a comparison of admittedly genuine signatures of the defendant with the handwriting on the pawn slip.
The defendant was employed from November 1955 up to the time of the trial as a salesman by a New York City company engaged in the wholesaling of pipes and smokers'
articles. His duties were to call on retailers and solicit orders. On July 30, 1956, the date of the alleged theft, the defendant had taken orders from three customers in Newark and one in East Orange. The Goldman Hotel is within a half-hour's driving distance from the shops of the customers. There was no proof as to the time or times of day when these orders were taken.
On Tuesday, July 31, 1956, at about 1 P.M., the defendant called at a jewelry store in Poughkeepsie, New York, owned by Morris White and his wife Rae. He showed Mrs. White a platinum diamond ring and told her that he found it in the street in Poughkeepsie and asked whether the stone was "glass or is it a diamond?" Mrs. White took the ring to the back of the store and handed it to her husband. Mr. White became suspicious and instructed her to call the police. The defendant told the police officers that he was a salesman and had been calling on his customers in Poughkeepsie; that he had found the ring that morning in the gutter of the street in that city and had taken it to White's jewelry store to determine whether it was of any value. The ring was retained by the police and later identified by Mrs. Grossbardt. This is the ring mentioned in the indictment.
Maclyn Goldman, one of the proprietors of the hotel, testified that shortly after the theft he identified a person in a photograph shown him by the police as a man who had been at the hotel on several occasions prior to the date of the alleged theft. It was stipulated that the person in this photograph was the defendant. While Goldman was unable to conclude with certainty after looking at the defendant in the courtroom that the defendant had visited the hotel, he was definite in his statement that he had seen the person in the photograph at the hotel. He testified on cross-examination:
"I cannot say that Mr. Dancyger was the man there, but I do say that the person on the photograph that was shown to me was definitely there on several occasions before, as I have heretofore stated.
Q. And since you got the picture you have looked at Mr. Dancyger? A. I have looked at him several times.
Q. And you are not certain? A. I am not certain he is the man that I saw, but he bears a very strong resemblance to the man I saw."
Herbert Fine, the hotel's social director, testified to having seen defendant in the hotel lobby sometime after 8 P.M. on a Saturday evening between July 15 and July 30, 1956. On weekends during the summer months there were often as many as 600 to 650 guests at the hotel and between 150 and 170 employees.
At the conclusion of the State's case the defendant moved to dismiss both counts of the indictment. The court denied the motions ruling that "while the case is purely circumstantial, a prima facie case has been established on both counts."
The defendant did not take the stand. The only witness called on his behalf was his wife. She testified that during the months of June and July 1956 the defendant spent every Saturday evening with her and had never spent a Saturday evening during this period at the Goldman Hotel. Upon the completion of her testimony, the defendant rested and moved for a judgment of acquittal, which motion was denied. The court charged the jury that the case was one founded in circumstantial evidence and instructed them that they could ...