Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
Following the reversal of their previous convictions (State v. Wines , 47 N.J. Super. 235 (App. Div. 1957)) defendants were again convicted, and again they appeal.
They contend the verdict was against the weight of the evidence. No purpose would be served by recounting the details of the evidence. Suffice it to say that we have examined it carefully within the scope of our review, and find that the issues were those of fact and credibility, and that the verdict finds adequate support in the evidence.
The more serious questions arise out of the following facts.
When the indictment was handed up it charged, in the first count, that the defendants "did forcibly take from the person of Herman Smith * * * $362 * * * by violence and putting the said Herman Smith in fear, the said Harry Wines and Anthony Palumbo then and there being armed with, and having in their possession, a certain firearm, contrary to the provisions of N.J.S. 2 A:151-41 and 2 A:141-1 * * *." N.J.S. 2 A:151-41 is the concealed weapon statute; N.J.S. 2 A:141-1 the robbery statute. The statute that empowers the court to give an additional sentence for committing robbery while armed is N.J.S. 2 A:151-5, but that number did not appear anywhere in the indictment. There was a second count with which we need not concern ourselves, because it was dismissed on the State's motion during the second trial.
In spite of the reference to N.J.S. 2 A:151-41, the indictment did not contain words which charged the crime of carrying a concealed weapon. State v. Quinn , 108 N.J.L. 467 (Sup. Ct. 1932). Nevertheless, the trial judge, in the first trial, treated it as if it did. He charged the jury:
"Count number one charges that on April 20, 1955, in the town of Guttenberg these two defendants did commit the crime of armed robbery against one Herman Smith, charging, as it says here in the formal words of the charging part, that these men 'in the County of Hudson aforesaid and within the jurisdiction of this Court, did forcibly take from the person of Herman Smith, cash, lawful money, in the amount of $362.00 by violence and putting the said Herman Smith in fear, the said Harry Wines and Anthony Palumbo then and there being armed with, and having in their possession, a certain firearm, contrary to the provisions' of the law.
Now the crime of robbery is a felony, so if the facts satisfy you beyond a reasonable doubt * * * that one of the men had a gun and the other man participated, whether he had a gun or not they are both principals. So, in the first count the indictment charges them both with robbery while armed. It also charges them with violation of section 2A:151-4. That section of the statute makes it a misdemeanor to carry a concealed weapon. There is some proof that Wines did. Whether you accept that proof is your burden and you will have to do that according to the evidence and according to the rules of law which I will give you. But I wish to call your attention to the fact that the first count charges armed robbery against both of them. On that count you will find Wines guilty or not guilty and you will find Palumbo guilty or not guilty. You don't have to find both guilty or both not guilty. There are two men separately on trial before you and you must bring in a verdict against or for each of them. In the first count the charge is armed robbery against each of them and the charge of carrying concealed weapons against each of them, but I direct that you bring in no verdict against Palumbo for carrying a concealed weapon. By that I am not inferentially asking you to bring in a verdict against Wines for carrying a concealed weapon. That is for you to determine from all the proofs in the case."
The jury thereafter returned its verdict as follows:
THE FOREMAN: We, the jury, find the defendants, Harry Wines and Anthony Palumbo guilty of the charges made by the State.
THE COURT: Now you say, Mr. Foreman, you find the defendants guilty of the charges ...