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State v. Witcher

Decided: December 11, 1959.


Goldmann, Conford and Haneman. The opinion of the court was delivered by Haneman, J.A.D.


Defendant appeals from two judgments of conviction entered by the County Court upon jury verdicts finding him guilty upon two accusations: (1) charging the receipt of stolen property contrary to N.J.S. 2 A:139-1, and (2) charging the carrying of a concealed weapon, to wit, a "billy," contrary to N.J.S. 2 A:151-41(b).

It should be noted preliminarily that the consideration of this appeal is not facilitated by the truncated appendix. While the abbreviated transcript of the testimony and the two paragraphs of an approximately 13-page charge furnished by defendant were supplemented by an appendix filed by the State, some troublesome omissions still exist. Also, the necessity of piecing together the entire testimony and complete charge by reference to separate appendices makes the court's labors more burdensome and tends to confusion. We deprecate this conduct of appellant, particularly when the county has been put to the expense of providing free a complete trial transcript.

It has recently become quite evident that some counsel do not faithfully and conscientiously comply with R.R. 1:7, made applicable to the Appellate Division by R.R. 2:7. We

do not impose costs on the present defendant since his is an appeal in forma pauperis. Gargano v. Venezio , 37 N.J. Super. 129 (App. Div. 1955). Nor will we grant plaintiff's motion for dismissal. However, lest leniency be considered condonation, let all counsel be warned that more stringent sanctions may be imposed in the future for similar breach of the rules.

On August 11, 1958 defendant was interviewed by Lt. Boulais and Sergeant Burgum, officers of the Hackensack Police Department, at 256 High Street, Hackensack. At their request, defendant drove a Cadillac automobile, then in his possession, to police headquarters, accompanied by the sergeant. Upon arrival, the two police officers examined the car. They discovered a sawed-off weighted end of a billiard cue approximately 17 inches in length under the front seat. The Cadillac was found to have been recently stolen from the sales lot of Lincoln Auto Sales.

Defendant gave an oral statement to the police which, when reduced to writing, he refused to sign because of his objection to the statement that the "billy" was found under the front seat and that it was described as a "concealed weapon." Having waived his right to indictment, defendant was charged by the two accusations above set forth. The testimony at the trial was as follows: A Herman Kraemer testified that he traded as Lincoln Auto Sales. In April 1958 the Cadillac owned by him, and later found in defendant's possession, was stolen from Kraemer's sales lot. Lt. Boulais testified to the discovery of the car in defendant's possession and the discovery of the instrument above described, which he stated was, in his opinion, a "billy or what is commonly known as a club," under the front seat of the car. Sergeant Burgum corroborated Boulais' testimony that he discovered the car in defendant's possession and that he found a "billy" under the front seat. Detective Aletta of the Hackensack Police Department identified the Cadillac found in defendant's possession as being the car stolen from Kraemer in April 1958.

Defendant testified that some time in June 1958 a James Brockington, a social friend, stated he was about to go on a vacation and requested him to take charge of the Cadillac in question. Defendant being willing, Brockington turned over to him the car and the New Jersey registration therefor. Brockington told him that the car belonged to his nephew, Julius C. O'Neil, the registered owner. Defendant admitted that he had seen O'Neil only once and that was when possession of the car was given to him. He did not know O'Neil's immediate family. He had seen neither Brockington nor O'Neil for over two and one-half months.

He admitted that the sawed-off cue stick was discovered in the car but denied that it was found under the front seat. He testified that it was found upon the floor in the front of the car where it had lain since he had received the car from Brockington.

Upon direct examination defendant admitted that he had been convicted of the commission of a crime, to wit, armed robbery. Upon cross-examination the State elicited that he had likewise been convicted as follows: riding in a stolen automobile; breaking, entry and larceny; twice for desertion; armed robbery and carrying a concealed weapon, and had pleaded guilty to a violation of the federal law dealing with marijuana; violating his parole; and of armed robbery. After trial the jury returned a verdict of guilty on both accusations.

Defendant appeals from the judgment of conviction upon the grounds that the trial court committed error in that: (1) he permitted extensive and unnecessary cross-examination of the defendant concerning his criminal record; (2) he charged the jury that possession of stolen property within one year after the stealing is sufficient evidence to "justify" the jury in bringing in a guilty verdict; (3) he permitted testimony by police officers which characterized the sawed-off billiard cue as a "billy"; (4) the verdicts ...

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