For affirmance -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall and Schettino. For reversal -- None.
The judgment is affirmed for the reasons expressed in the opinion of Judge Sullivan in the court below.
On appeal from a judgment of the Superior Court, Appellate Division, where the following opinion was filed. "Robert Murray, hereinafter referred to as defendant, and his brother, Kenneth Murray, were indicted on charges of willfully entering an automobile with intent to steal and with stealing certain items of personal property valued at $1,229. After trial by jury, they were found guilty, and judgments of conviction entered. Defendant appeals. His brother and co-defendant has not joined in the appeal.
Numerous grounds of appeal are urged by appellant, some of which are as follows. He claims that at the close of the State's case the evidence was insufficient to warrant a conviction against him. He also argues that the verdict of the jury was against the weight of the evidence. There is no merit to either of these contentions. That there had been an unlawful entry of the car and a theft of its contents was beyond question. At the close of the State's case, and also at the close of the entire case, there was undisputed evidence of Robert Murray's possession of some of the stolen property soon after the entry and theft. That, together with the other evidence in the case, made the question of this defendant's guilt a matter for the jury. State v. Dancyger, 29 N.J. 76 (1959).
The sole point requiring extended discussion is the possible prejudice to defendant from the admission into evidence of Kenneth Murray's signed confession. Kenneth Murray had been picked up by the police who were investigating the larceny. After questioning, he signed a statement admitting that he and his brother, Robert Murray, had committed the particular car entry and theft. The statement also refers to breaking into other cars during the same evening. Robert Murray was not present when the statement was taken. As a result of Kenneth Murray's confession, the police went to the home where the two brothers lived and recovered much of the stolen property. Later, on information provided by defendant Robert A. Murray that he had given some of the stolen clothing to a girl friend of his, the police and defendant went to the girl's home and recovered still more of the property.
The two brothers were tried together. It does not appear that a severance was requested. When Kenneth Murray's statement was offered in evidence, counsel for defendant Robert Murray objected because the statement implicated defendant. At that point the Assistant Prosecutor conceded that the statement was not binding on Robert Murray and was being offered against Kenneth Murray only. The court then inquired as follows: 'You are offering it to bind only the person who made it,' to which the Assistant Prosecutor replied, 'Yes, your Honor.' The statement was admitted into evidence and read to the jury, whereupon defendant's attorney asked the court to charge the jury that any reference in the statement to Robert Murray must be disregarded. The court stated that it would deal with the matter in its charge, and it did at the conclusion of the trial properly and adequately caution the jury that the statement had probative value against only the person who made it and that it 'has no evidential value whatsoever against the other, co-defendant.'
Defendant's argument is that the reference in the statement to Robert Murray should have been expunged before the statement was put in evidence. Defendant also claims prejudice to him in that part of the statement mentioning other car entries.
It is clear that in the present case the statement of Kenneth Murray was not evidential against Robert Murray. State v. Yedwab, 43 N.J. Super. 367 (App. Div. 1957); State v. Sudol, 43 N.J. Super. 481 (App. Div. 1957); Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2 d 278 (1957). The last cited case points out that in a joint trial, when a declaration or admission of a conspirator made in the absence of the co-conspirator and not in furtherance of the conspiracy is admitted in evidence, the court must be careful at the time of the admission and by its instructions to make it clear to the jury that the evidence is limited as against the declarant only. Failure to do this could be prejudicial error. Abbate v. United States, 247 F.2d 410 (5 Cir. 1957), affirmed on another issue, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2 d 729 (1959). In the present appeal however, while the court may not have directly cautioned the jury at the time the statement was introduced in evidence, the remarks of the assistant prosecutor, of counsel and of the court made in the presence of the jury clearly indicated the limited weight the statement was to have. The judge's charge at the conclusion of the case emphasized this point. Undoubtedly, the better practice would have been for the court to instruct the jury formally as soon as the statement was marked in evidence. The jury, however, from the moment the statement was produced, was aware that it was not to be used as evidence against Robert Murray. Under the circumstances, therefore, the jury was not misled or defendant's rights prejudiced. State v. Hall, 55 N.J. Super. 441 (App. Div. 1959), deals with this same question and is to the same effect.
Defendant's argument that any reference to Robert Murray should have been expunged from the statement before it was put in evidence, is without merit. There was no such request when the statement was offered. Indeed counsel for defendant stated at the time that it would be difficult to separate the references. We agree. Where two persons jointly commit a crime, it may not be feasible to take an intelligent statement from one without mentioning the other. If the reference to other defendants in a statement cannot be excised without affecting the sense thereof, the usual practice, as above noted, is to admit the entire statement with a prompt and emphatic caution to the jury as to the limited evidential effect to be given it. Delli Paoli v. United States, supra.
The reference in the statement to other crimes was not prejudicial to Robert Murray. As has been noted, the statement was not evidence against this defendant, so that anything contained therein did not affect him. Moreover, the reference to other car entries was but part and parcel of the sequence of events on the evening in question. Counsel made no objection on this score nor asked that the references be stricken until after the statement had been marked in evidence, read to the jury, and until after the state had rested its case. Cf. State v. ...