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State v. Jones

Decided: October 2, 1959.

STATE OF NEW JERSEY, RESPONDENT,
v.
IVORY JONES, APPELLANT



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

Goldmann

On January 2, 1957 the Monmouth County grand jury returned three indictments respectively charging (1) appellant Jones, Eddie Gainor, Robert Majors and Dorothy Maddox with robbery by forcibly taking $169 from John Brakefield on November 1, 1956; (2) Jones, Gainor and Majors with robbery by forcibly taking $85 from Everett Kennedy on October 31, 1956; and (3) Jones, Gainor and Charles McKay (in four counts) with (a) armed robbery of $500 from Laura Letson on October 23, 1956; (b) robbing her of that amount; (c) assaulting her with intent to rob; and (d) atrocious assault and battery upon her.

The indictments were tried together, Jones being represented by court-assigned counsel. The jury found Jones guilty on the first indictment, not guilty on the second, and guilty under only the third and fourth counts of the third indictment. Gainor was found guilty on the first two indictments and not guilty on the third. The charges against Majors were dismissed. We do not know what disposition was made of those against Maddox or McKay.

Jones was sentenced to State Prison on February 21, 1957 to serve a term of 12-15 years on the first indictment and 10-12 years on the third, the sentences to run consecutively.

On April 8, 1957 he filed a notice of appeal with the Monmouth County Clerk, who at once mailed a conformed copy to the Superior Court Clerk. The latter did not docket and file the notice because of nonpayment of the requisite fee. On May 1, 1957 Jones wrote the County Court judge who had presided at his trial, advising that he was not going to pursue his appeal but would seek a further hearing before him. He said he had secured the services of the attorney who represented him at the trial. Jones then wrote the Superior Court Clerk on May 3, 1957, stating that he desired to discontinue his appeal (never perfected), and on May 29 moved for a new trial. The county judge conducted a hearing on July 30 and denied the application. Two days later

Jones filed a notice of appeal from the refusal to grant him a new trial. Leave to appeal as an indigent and application for assignment of counsel were denied August 19, 1957. Nothing further happened until September 10, 1958, more than a year later, when Jones wrote the deputy attorney general about securing assigned counsel and a transcript. The matter eventually came to the attention of the Supreme Court which directed that Jones be permitted to file a notice of appeal as an indigent. He did so. His appeal is addressed solely to the County Court judgment of conviction on February 21, 1957.

Without question, the appeal is entirely out of time and ought not to be considered. However, we have obtained a copy of the transcript of the trial and will dispose of the matter on the merits in order to bring it to a finality.

Defendant first argues that the State failed to make out a prima facie case of guilt. A reading of the entire record shows how baseless the contention is. The prosecution clearly established a strong prima facie case, including the positive identification of Jones as the leader of the holdup party on each of the two occasions for which he was convicted -- the Brakefield robbery as well as the atrocious assault and battery upon Mrs. Letson and the assault with intent to rob her. The verdict comported with the proofs. The jury discharged its duty with unusual care, finding Jones not guilty whenever there was doubt, and guilty where the evidence clearly pointed to his having committed the crimes charged. It did the same in the case of Gainor.

Defendant next maintains that the trial judge erred in failing to instruct the jury regarding the distinction it should draw between convictions for disorderly persons offenses and those imposed for other offenses, when considering Jones' criminal past -- and this despite a request so to charge. The claim is that R.R. 3:7-7 was violated. It was not. The rule allows parties to submit written requests to charge at the close of the evidence. Here the request in question was orally and informally made during

the course of the trial; there was none in writing after the defense had rested. Even were the request properly made, the trial judge was not obliged to deliver the charge in the exact language requested.

Defendant has misquoted the charge in his brief. He asserts that the trial judge instructed the jury that all of defendant's criminal record had been allowed in evidence for the purpose of testing credibility. The transcript is to the contrary. In the course of the trial defense counsel, and then the prosecutor, questioned Jones about his convictions of crimes committed in this State and elsewhere. The judge was careful to limit the prosecutor's cross-examination to convictions involving offenses of a more serious nature; there was no inquiry into disorderly persons acts. Cf. State v. Block , 119 N.J.L. 277, 282 (Sup. Ct. 1938). An FBI report ...


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