Price, Sullivan and Herbert. The opinion of the court was delivered by Sullivan, J.A.D.
Defendant was indicted for the robbery of $50 from the person of William Morgan and pleaded "not guilty." At his first trial the jury, after some 2 1/2 hours deliberation, reported that it could not agree on a verdict. The court then asked the jury if further deliberations would avail and was told by the foreman that "We are so far apart that present deliberation would be of no avail." The court thereupon declared a mistrial.
At defendant's second trial he made a motion to "dismiss the indictment" on the ground of double jeopardy, contending that at the first trial the court should not have declared a mistrial when it did, but should have instructed the jury to continue its deliberations. The motion was denied. At the conclusion of the second trial the jury returned a verdict of "guilty." Defendant was sentenced to serve five to seven years in State Prison.
Briefly, the State's case as established by the testimony of Morgan and corroborated as to some of the details by other witnesses, was that Morgan worked as a night attendant at a tavern in Newark and that on March 21, 1960, defendant went to the tavern after closing hours and knocked on the window to attract Morgan's attention, and through the window exhibited a note purportedly written by the owner of the tavern concerning a package in the cloak room. Morgan had known defendant since 1947. When Morgan opened the door defendant put his hand in his pocket, said he was "not kidding," and ordered Morgan into the cellar and locked the cellar door. Morgan then heard defendant walk across the floor and the "ding" of the cash register. Morgan was released from the cellar about an hour later when his shouting and banging were heard by a passerby who opened the cellar door. Morgan then ascertained that $50 of his employer's money which he had put in the cash register was missing. The police were called and were told by Morgan that defendant had committed the robbery.
Defendant's story was that on the date in question he had met Morgan in a cafeteria about two o'clock in the morning and that Morgan had invited him to the tavern for a few drinks. They went there and Morgan gave defendant a couple of "double shots." Then Morgan asked defendant for the loan of $50, saying he had to go to court that day on a conspiracy charge and needed the money "to get his trial postponed." Morgan showed defendant a paper purporting to indicate that Morgan had to appear in court on March 21. Defendant, however, said he did not have any money. Approximately an hour and a half later defendant left the premises. He denied locking Morgan in the cellar or taking any money from the register. Defendant has a long criminal record, the details of which were elicited on his cross-examination.
In summation defendant's assigned counsel suggested to the jury that Morgan, the State's witness, had taken the $50 and had blamed defendant to conceal his own embezzlement. Counsel frankly admitted that his client was a "bad man" but argued that he was not so stupid as to commit a robbery for which he was bound to be apprehended. Counsel then told the jury:
"You can see that he has been experienced in the world of crime and how unfortunate are the many others with him who have turned to crime as a way of life. You can say that he has been in and out of jail. These fellows apparently think that it's all right to do anything if you can get away with it and then when you can't get away with it, you get a stretch and you get a nice soft time and you get a bed and they let you out until you do something else and get caught again.
Now, when you take a man like that, who has turned to crime as a way of life, and there is no proof that he is insane; there is no proof that this man is abnormal mentally. You heard him testify. He is a pretty suave individual. Do you think that this man would be so stupid, so insane, when there are so many ripe victims around -- these women, your wives and mine, our sisters, ourselves, walking a public street and all of a sudden, 3 o'clock in the morning clonk on the head, we are left to die or bleed to death and we don't even
know who struck us. Do you think this man would be that stupid as to come into a joint -- a saloon, where he was well-known to Mr. Morgan * * *."
As heretofore noted the jury returned a verdict of "guilty."
On his appeal defendant raises several points. We need consider ...