Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
After trial by jury, defendant was convicted of entry without breaking with intent to steal in violation of N.J.S. 2 A:94-1, and stealing goods having a value under $200, in violation of N.J.S. 2 A:119-2.
Defendant's appeal makes the following points. First, the evidence was insufficient to convict him and the court should have granted his motions for acquittal made at the end of the State's case and again at the end of the entire case. Second, the verdict was against the weight of the evidence. Third, certain remarks and conduct of the prosecutor and one of the State's witnesses during the trial were prejudicial to the defendant. Fourth, defendant was prejudiced by having certain portions of the testimony re-read to the jury. Fifth, conviction of defendant by an 11-man jury is void in the absence of defendant's written consent to be so tried.
The first two points may be considered together since they deal with the proposition whether there was enough evidence at the end of the State's case and at the end of the entire case to submit the issue of defendant's guilt to the jury. An examination of the record indicates that a jury question was presented both at the end of the State's case and at the end of the entire case. Actually, as far as defendant was concerned, the question of his guilt turned on whether he knowingly participated in the commission of a crime. There was no question but that Roy Hansen, defendant's companion, had unlawfully entered a tool shed on the Weehawken waterfront and had stolen some power tools. It is undisputed that defendant drove Hansen to the waterfront, the tools were put in defendant's car, and they then drove to the place where the tools were sold at which time defendant
helped to carry the tools from the car. The fact that Hansen, who testified for the State, said that he told defendant that the tools were his and also said that defendant did not know they were stolen, is not of itself conclusive. There were facts presented to the jury from which it could have properly concluded that defendant was a knowing participant in the crime. Without enumerating all of the details from which defendant's guilty knowledge could be inferred, the following are significant. The securing of the tools and their sale took place late at night and under cover of darkness. Defendant drove Hansen to the deserted Weehawken waterfront to get the tools. When a police officer chanced upon defendant parked without lights defendant said he was supposed to meet a friend there. Defendant did not remember whether he said anything to the police officer about tools, but the officer who took defendant's name and address and sent him on his way with a threat of arrest said that defendant did not tell him the purpose of the meeting. As it developed, Hansen while getting the tools was surprised by a watchman and jumped into the Hudson River to avoid detection. After the watchman left, Hansen climbed out of the river, and when defendant did not return, Hansen then walked back to the tavern in Union City from which place they had started. Hansen was "soaking wet" and "draped with mud." He met defendant there and an argument ensued, each wanting to know what had happened to the other. According to Hansen he told defendant, "'I went in the water.' I said, 'I saw the cops out there talking to you.'" Despite this, Hansen prevailed on the defendant to drive him back to the waterfront and this time Hansen got the tools.
In investigating the theft the police, who had defendant's name and address, questioned defendant as to his presence in the vicinity at the time of the theft. Defendant repeated his story about waiting for a friend, adding that his friend was going to return a watch to him. Defendant did not mention the tool incident and stated that the officer did
not ask about any tools. The officer however testified that he did question defendant about the tools and defendant denied any knowledge of them.
We feel that all of the foregoing was evidence from which a jury could properly conclude that defendant knowingly participated in the commission of the theft. The court properly denied defendant's motions for an acquittal and a new trial. State v. Dancyger , 29 N.J. 76 (1959); State v. Vitale , 35 N.J. Super. 568 (App. Div. 1955).
We have examined the alleged prejudicial remarks and conduct of the prosecutor and State's witness. Without going into detail, we find that the trial judge properly and effectively handled the trial and that defendant's rights were not prejudiced in any way. The case was vigorously presented, but within the limits of propriety. The court in its charge adequately corrected the one misstatement of applicable law made by the prosecutor.
After the jury retired to consider the case it returned and submitted the following question to the court: "According to the testimony by Hansen did he (Hansen) actually tell Ciniglio that he had to jump into the water because of the watchman's presence." When the judge told the jury that it was strictly a matter of "your recollection of the testimony," the jury asked to have that portion of the testimony read back. Thereupon the stenographer read to the jury that part of Hansen's testimony dealing with his return to Union City after climbing out of the river, and his conversation with defendant as to what had happened while he was getting the tools. The reading back of a portion of the testimony was clearly a matter of sound discretion with the trial court. State v. Richter , 21 N.J. 421 (1956). We find that the trial court acted properly under the circumstances.
The final point deals with defendant's conviction by a jury of 11 persons. This situation resulted from one of the jurors becoming ill ...