Goldmann, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendant, Benjamin O. Travers, and William Reeves were tried together and convicted of armed robbery by the County Court of Mercer. Only Travers appeals; he was sentenced to State Prison for a term of 12 to 15 years for robbery and 3 to 5 years on the armed charge, the terms to run consecutively. He contends, through his assigned counsel, that the verdict was against the weight of the evidence, and the court erred in that: (1) it refused to charge the jury as to defendant's intention; (2) the jury was improperly charged respecting the use of the confession of his co-defendant Reeves; (3) photographic evidence was erroneously admitted; and (4) testimony was allowed concerning two unidentified photographs which the court implied in its charge might be considered by the jury.
In summary, the evidence reveals that the robbery took place at 5:30 on the evening of December 11, 1959 at the liquor store of one Thomas DeLellis, corner of Princeton and Fountain Avenues, Trenton, New Jersey. When Reeves walked into the store, brandishing a gun, he exclaimed, "Just give me the money and nobody gets hurt." Reeves was
identified by DeLellis, who observed that the robber was a Negro, had a goatee, a mustache, and long side-burns, and was wearing a "white or cream raincoat with a rain hat." The night following the robbery, DeLellis noticed Reeves on the street, but was unable to make contact with the police in time for his apprehension. On New Year's Eve he again saw Reeves, and this time led the police to his whereabouts where he was arrested.
In a signed statement that Reeves gave to the police authorities, he detailed his part in the robbery, and implicated the appellant, alleging that Travers furnished the gun, accompanied him to the location of the liquor store and accepted part of the stolen money. Reeves knew Travers from school days and identified him from a police photograph. Both the confessional statement and the photograph were admitted into evidence but as to Reeves only.
Subsequently, Travers was arrested and indicted for armed robbery in violation of N.J.S. 2 A:141-1 and N.J.S. 2 A:151-5. At first, he denied any participation in the crime but, later, he admitted his association with Reeves as an accomplice. Detective Francis X. Nagy, who was substantiated by Lieutenant Adolph G. Miller, testified:
"* * * He [Travers] told us that he did in fact supply the gun that was used by William Reeves in the commission of this crime and he did accompany him to Princeton Avenue at the time of the crime's commission and he did share in the proceeds of the crime."
At the trial, however, appellant denied that he had made such admissions; and he categorically denied that he ever had a gun, gave a gun to Reeves, was in the vicinity of the holdup, or that he participated in any way in the crime. He did, however, admit under cross-examination that he had been previously convicted of a crime, and on this point the jury was properly instructed.
James Rivers was a witness for the prosecution. He lived at 30 Fountain Avenue, about "50 yards or more" from the
liquor store. His brother lived in a building right behind the liquor store. Rivers stated that "about 5:30" on the night of the crime, he was proceeding from his home toward the food center on Princeton Avenue with "money in my pocket" and, as he neared the corner, he was accosted by a stranger whom he identified in open court as Travers, and that Travers had asked him, "Do you have a cigarette[?]." He further testified that he observed "one more guy was sitting on my brother's stoop," and that, when he crossed the street to enter his brother's house, the fellow on the steps inquired of him: "Do Jones or Johnson live in this building[?]." In court, Rivers identified this man as Reeves. The proffered explanation given by Rivers, under cross-examination, for his sudden decision to visit his brother was:
"Q. Something happened to you in your frame of mind and you walked across the street?
A. Yes, because they looked suspicious to me at the time. If you were walking there, you would be suspicious."
Rivers remained in his brother's house about five or ten minutes and when he left the two men had disappeared.
The corroborative testimony of James T. Woodward is telling. Woodward was with the Air Force, Military Police, at the McGuire Air Force Base; he lived at 53 Sweets Avenue, Trenton. On December 11, 1959 he left work at 4:20 P.M. and, on the way home, he discharged a passenger named Francisco Vasquez at Princeton and Fountain Avenues. The time of arrival at this destination was fixed at "between 5:15 and 5:30." When he stopped his car, the engine cut off; he had run out of gasoline. His companion had a spare can of fuel in the trunk of his automobile on the other side of the street, which he proceeded to transfer to the ...