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State v. Bowden

Decided: July 5, 1960.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LLEWELLYN J. BOWDEN, DEFENDANT-APPELLANT. (DOCKET NO. A-112-59); THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. ROY G. DUFFY, DEFENDANT-APPELLANT. (DOCKET NO. A-138-59)



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

Conford

By these appeals defendants bring in question their convictions in the Essex County Court after trial by jury on an indictment for armed robbery. The general factual background follows:

The Triumph Savings & Loan Association in the City of Newark was held up on April 11, 1958 by two armed and masked bandits who took, at gun-point, some $800 from the cash drawers of tellers Beard and Ulrich. As the two gunmen were making their escape, the bank manager, rushing out of the premises, enlisted the aid of four young men who happened to be outside, and the five gave chase. They saw the bandits enter an automobile and drive off. One of them observed the license plate number, and that information was relayed to the police. The car was thereby identified

as registered in the name of the wife of the defendant Bowden. Bowden was apprehended driving the car that same evening by New York State police at Leeds, New York, near Albany. He was returned to New Jersey the following day and was held in the custody of the Newark police until his arraignment the following Wednesday, April 16, 1958. The day before, Tuesday, April 15, 1958, he had given a detailed confession, implicating Duffy as well, and was taken by the police to the campus of Upsala College in East Orange to point out the spot where he had hidden the proceeds of the robbery. There a paper bag containing about $350 was found buried under a tree. On the trip back to police headquarters Bowden showed the police the sewer into which he said he had thrown the two guns, and they were retrieved therefrom later in the day.

Defendant Duffy was arrested on April 12, 1958, the day after the robbery, by F.B.I. agents. He was released after questioning, picked up again Monday evening, April 14, 1958, again released, and immediately thereafter arrested by the Newark police and questioned that night. The following day, Tuesday, April 15, 1958, Duffy also gave a full confession, and that afternoon the police went to his home, where his wife gave them a posted and sealed envelope addressed to himself containing several hundred dollars. He, too, was arraigned on Wednesday, April 16, 1958. Both suspects pleaded not guilty.

At their trial both defendants claimed that their confessions had been coerced by police brutality and that the implicating details were untrue. Both denied participation in the robbery.

Bowden's story was that about a week before the holdup he had been in a Newark bar with two friends and had engaged in conversation with an unidentified woman. There was some sort of commotion in the bar, the woman and some companions of hers ran out, and he picked up her handbag, which had been left on the bar, intending to return it at some later time. His inspection of its contents, however,

revealed a substantial amount of money and the two weapons. He buried the money, and, on the advice of another friend, threw the weapons into the sewer. All three friends testified on his behalf, corroborating these events. On the day of the crime itself, he said, he had spent the morning with Duffy, and had then gone to see another friend, one Albert Berman, who was a student at Upsala. Although Berman had already given the police a statement in which he denied having seen Bowden that day, nevertheless at trial he said that the statement had been coerced by police pressure and that in fact Bowden had been with him at the very time the holdup was taking place. Bowden testified that the reason he had left Newark was his fear of being questioned concerning the purloined handbag.

Duffy claimed that the money in the self-addressed envelope represented the proceeds of an income tax rebate check which he had cashed. He had no specific alibi.

After a lengthy collateral attack on the confessions, they were ruled admissible, and the investigating police testified to various oral admissions made to them by the defendants.

On this appeal, both defendants attack the sufficiency of the indictment and urge various alleged prejudicial trial errors, including the ruling on admissibility of their confessions.

I.

The defendants first contend that their convictions are a nullity because the indictment on which they were based was fatally defective in its complete failure to specify the ownership of the stolen property. They argue that since this omitted allegation constitutes an essential element of the crime of robbery, it was error for the court to have allowed the indictment to be amended in this regard.

The first count of the original indictment read as follows:

"The Grand Jurors of the State of New Jersey, for the County of Essex, upon their oath present that Llewellyn Bowden and Roy

G. Duffy, on the 11th day of April, 1958, at the City of Newark, in the County of Essex aforesaid and within the jurisdiction of this court, did forcibly take from the person of Stella Beard money to the value of $825.00, by violence and putting the said Stella Beard in fear, contrary to the provisions of N.J.S. 2 A:141-1, against the peace of this State, the government and dignity of the same."

Defendants' pretrial motion to quash the indictment was denied, and the State's offer at that time to amend it to allege ownership of the money in the Triumph Federal Savings & Loan Association was also denied, the court ruling that amendment was not necessary since the proffered allegation was not essential. It did, however, permit the amendment later in the proceedings.

Defendants are correct in their assertion that one of the elements of the crime of robbery is the taking of property which belongs to someone other than the thief. State v. Cottone , 52 N.J. Super. 316, 323 (App. Div. 1958). The same is true of the crime of larceny, State v. Cohen , 105 N.J.L. 529, 536-7 (Sup. Ct. 1929); State v. Trunfio , 58 N.J. Super. 445, 448 (App. Div. 1959); State v. Davis , 61 N.J. Super. 536 (App. Div. 1960), which is a necessary component of robbery, the latter being defined as larceny from the person of another accomplished with the element of force or fear. State v. Hoag , 35 N.J. Super. 555, 559 (App. Div. 1955), affirmed 21 N.J. 496 (1956), affirmed 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2 d 1375 (1958); State v. McDonald , 89 N.J.L. 421, 423 (Sup. Ct. 1916), affirmed 91 N.J.L. 233, 236 (E. & A. 1918). The statute covering robbery, however, makes no specific reference to the element of ownership of the stolen goods being in one other than the thief, or, indeed, to the subject of ownership at all, the offense being stated as "forcibly tak[ing] from the person of another, money or personal goods and chattels, of any value whatsoever, by violence or putting him in fear * * *." N.J.S. 2 A:141-1. Compare also N.J.S. 2 A:119-1, defining larceny from the person without reference to the ownership of the goods stolen, with N.J.S. 2 A:119-2,

the general statute covering stealing, which does expressly refer to "the property of another."

As has been pointed out in our cases, the essence of the crimes of larceny and robbery (as regards their "taking" aspect) "is not that the property belonged to a specific person, but rather that it was the property of someone other than the thief." State v. Trunfio, supra (58 N.J. Super. , at p. 448). And see, generally, 77 C.J.S. Robbery , ยง 38, p. 475. The question before us, therefore, is as to whether the original indictment, following as it did the statutory language, was sufficient to negate ownership of the stolen property in defendants.

There is no New Jersey case precisely in point. Distinguishable are those cases in which there was a variance between the ownership proved at trial and that alleged in the indictment, the rule there evolved being that the variance is immaterial at least so long as the person alleged to be the owner in the indictment had the right to possession as against the thief. See, e.g., State v. Cottone, supra; State v. Trunfio, supra; State v. Davis, supra. State v. Cohen, supra , the continuing validity of which was questioned in Trunfio , is the only case in which the indictment was held to be defective, but there the alleged owner was actually a stranger to the goods. There is no doubt that under these authorities Stella Beard was properly designable as the owner for purposes of the indictment. See also State v. Butler , 27 N.J. 560, 590 et seq. (1958).

It is not argued by defendants that the statute, N.J.S. 2 A:141-1, in any way changes the substance of the commonlaw offense of robbery. Hence the negation of ownership of the stolen goods in the thief is implicit in the statutory formulation of the crime. In order for goods to be taken "from the person of another" that person obviously must have possession of them. And the element of the crime inferred from the statutory language, thus, is the existence in the individual from whose person the goods are taken, as against the thief, of a right to possession thereof.

If implicit in the statutory statement of the elements of the crime, it would seem, absent any showing of prejudice by these defendants, that negation of ownership by defendants is likewise sufficiently implicit in the indictment, which adopts the statutory language. Defendants cannot and do not urge that the property stolen from the bank tellers belonged to them. Nor do they argue that the failure to specify ownership resulted in their being insufficiently apprised of the crime with which they were charged or in any other way prejudiced in making their defense. Neither do they contend that the amended indictment varied the crime or subjected them to any new or different penal liability. Cf. State v. Grothmann , 13 N.J. 90, 95 (1953); R.R. 3:4-3; R.R. 3:4-5.

Pertinent to this problem is the language of the court in State v. Morano , 134 N.J.L. 295, 296-7 (E. & A. 1946), where it was stated:

"Certainty of description of the offense charged is a prime requisite of an indictment. This requirement that the alleged criminal act be laid in certain and identifiable form is grounded in the accused's right to such specification of the accusation as may be needful for the preparation of his defense and the interposition of a plea of autrefois convict or autrefois acquit in the event of a further prosecution for the same offense. The accused has a constitutional right 'to be informed of the nature and cause of the accusation' levelled against him. State Constitution, Art. I, par. 8. It is a corollary of this principle that an offense may be charged in the words of the statute , if the statute describes it in terms that in themselves import with certainty the elements of the offense, and thus the allegation satisfies the accused's fundamental rights. The statutory language need be supplemented only where necessary to particularize and identify the offense that would be indefinite and uncertain because of the generality of the statutory language" (emphasis ours).

There can be no question that the indictment here, following the statutory language, did sufficiently identify and particularize the crime with which defendants were charged. Proper solicitude for the observance of all the constitutional and statutory rights of defendants in criminal proceedings

does not require going to the extremity of voiding an indictment plainly specifying the crime charged, merely because one element, factually undenied, is stated by unambiguous implication, and in haec verba of the statutory specification of the offense.

It may well be preferable for a robbery indictment to expressly negate ownership in the accused. But where the defendants can show no respect in which that failure has prejudiced their substantive rights, there appears no compelling reason, dictated by any of the considerations of fairness to criminal defendants, which would warrant invalidating the indictment at the expense of the State's interest. If there was any defect here at all, ...


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