Goldmann, Conford and Freund. The opinion of the court was delivered by Freund, J.A.D.
A joint trial in the Middlesex County Court resulted in the conviction of three co-defendants on two counts: breaking and entering with intent to steal, N.J.S. 2 A:94-1, and larceny of the goods and money of L. Adler & Sons, Inc., N.J.S. 2 A:119-2. Separate indictments charged each of the defendants on both counts. On a pretrial motion by the State, and over the objections of counsel for all three defendants, the indictments were consolidated for trial. At the conclusion of the prosecutor's opening statement, in which reference was made to a verbal statement given by one of the accused admitting the participation of all three defendants, motions for severance of trial were made by counsel but denied by the trial judge. The trial court declined to grant motions for acquittal made at the close of the State's case and renewed at the conclusion of the entire case. The jury found each defendant guilty of a high misdemeanor in breaking and entering and of a misdemeanor in larceny of the property removed. Defendant Kenneth V. Hall, having received consecutive sentences to the Bordentown Reformatory on each of the two counts, is the sole appellant.
Breaking and entering and larceny were committed in North Brunswick, Middlesex County, some time after 6:30 P.M. on January 15, 1958 at the Adler corporation building, used as a combination service station, garage, and farm implement and garden equipment dispensary. Stolen were two chain saws, four tires, an electric paint sprayer, a heavy duty drill, a number of wrenches, and between $20 and $30 in silver coin. The State proved that Hall and the other two defendants, John A. Fitzgerald and Edward C. Smith,
Jr., were apprehended at 12:25 A.M. that night (actually the morning of January 16, 1958), 45 miles from the scene and in a truck found to contain part of the stolen property and a .32 automatic, loaded pistol in the glove compartment. The truck was stopped on Route 69, Washington Township, Warren County, by two state troopers on routine patrol. It was owned by Edward C. Smith, Sr., and operated by his son, the defendant Smith, both of Little Ferry, Bergen County. Fitzgerald, also of Little Ferry, occupied the middle seat in the cab of the truck, and Hall, of Newark, was on Fitzgerald's right. Two of the four tires found in the rear of the truck were in "Adler" wrappings, and the two chain saws were new. Hall had about $20 in silver in his pockets; he first told one of the officers he had the coins because he worked in a gas station, but then said, "I took it out of my piggy bank." The paint sprayer, drill, and wrenches were not in the truck and have never been located.
Smith had brought the truck to a stop as soon as practicable after observing a signal from the police car. And after the arresting officers had inspected the truck, the youths re-entered it and, without attempting to escape, followed the patrol car three miles to the police barracks in Washington Township.
In the two to three early-morning hours they remained at the barracks, each was questioned individually. Fitzgerald "denied everything." Hall gave the police a signed statement, received in evidence over objection, that he happened to have been at a gasoline station in Hackensack on the night of January 15 and had been invited by the defendant Smith, whom he knew only slightly, to go for a ride. It recites that Smith "said he had some junk in the car and was supposed to give it to someone down there" near Annandale. "He did not tell me anything. He just asked me if I wanted to go for a ride." Hall denied ever having seen the gun before and said he had fallen asleep "a couple of times" and therefore was unable to say which route they had taken in the alleged journey from Hackensack.
Smith gave an unsigned statement, also read into evidence over objection. According to him, "Hall came into the truck with a bag in his hand," and when the troopers stopped the truck, Hall said, "'I have got my gun with me.'" Smith denied his involvement with the crime, explaining that he was transporting the merchandise to Annandale for $25 as he had agreed with an undisclosed man who, unable to rent a truck for himself that night, had approached him at the Hackensack gas station. This person had told him to deliver "this stuff" to a red truck which he was to meet at a diner near Annandale. The police made an unsuccessful three-hour search for the red truck in the rendezvous area. There was testimony that the diner closed at 9:00 P.M. in the winter time.
At about 4 o'clock that morning, the defendants were taken to the Warren County jail in Belvidere. The warden testified that when Hall came into the prison, he had a "wrapped up hand. He had some stitches in. I took him to the doctor * * *. He told me he got it in Hackensack down in the garage." Entrance to the Adler building had been effected by breaking a glass window.
Some time after noon on January 16 Fitzgerald was questioned further, first by Trooper Charles A. Place alone and then by Place and Trooper-Investigator Alvin Hammond in the presence of the warden. The officers and warden all testified, over objection, that Fitzgerald admitted to them at this time that he, Hall, and Smith had broken into the Adler service station. After conferring with Hall, however, Fitzgerald refused to sign a statement to this effect. When Fitzgerald repeated his admission of their guilt in Hall's presence, Hall denied it emphatically.
Detective Joseph Skelly of the State Police also testified that he had a conversation with Hall on the morning of January 16. When Skelly asked Hall who did he expect would believe the story about his being with Smith just for the ride, Hall replied:
"Well, there's twelve people on the jury. There's twelve minds, and one of the jerks might believe me."
Neither Hall nor Smith testified at the trial. The only witness for the defense was Fitzgerald who proceeded to deny their guilt. He claimed that his verbal confession at the county jail had been extracted by violence and threats. The voluntary nature of the confession was the subject of rebuttal testimony offered by the State.
Hall appeals from his resultant conviction on two principal grounds: all of the evidence against him was circumstantial and not of sufficient weight to justify submission of the case to the jury as against his motions for acquittal; and the oral statements given the police by Fitzgerald and Smith implicating him in the crimes, received in evidence, were inadmissible hearsay as to him, and the trial judge, having already denied the motions for severance, was bound to, but did not give instructions adequate to prevent the jury's considering the statements as bearing upon his guilt.
As to the first point, Hall contends that, apart from the highly inculpatory statements of Smith and Fitzgerald, the only competent evidence the State had proved against him is that he was in the company of the other two defendants on a truck ride which, so far as he was concerned, involved nothing more than a trip for the purpose of Smith's delivering the contents to some one near Annandale. The argument is that he was not in possession of the articles found in the truck, that the State did not place the defendants any closer to the scene of the crime than 45 miles, and that there was no identification of the money found on his person with the coins taken from the Adler building.
The test for passing upon motions for acquittal, even where the evidence is wholly circumstantial, has recently been stated to be "whether the evidence, viewed in its entirety and giving the State the benefit of all legitimate inferences therefrom, was such that the jury ...