Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant Bozeyowski appeals his conviction for the crime of receiving stolen goods.
The Essex County grand jury returned an indictment in three counts respectively charging defendant and one Pierson with (1) entering the warehouse building of George Rapp, Inc., with intent to steal, contrary to N.J.S. 2A:94-1; (2) larceny of beer worth $800, a Ford truck worth $1,000, and a Chevrolet truck worth $1,000, all of a total value of $2,800, the property of George Rapp, Inc., contrary to N.J.S. 2A:119-2; and (3) knowingly receiving the Ford and Chevrolet trucks, total value $2,000, the property of the corporation, contrary to N.J.S. 2A:139-1.
On the first day of trial, and before the opening statements of counsel, the State moved to amend counts 2 and 3. Count 2 was to be amended to state the value of the beer as $1,679, and the total value of the stolen property as $3,679. The third count was to include the beer, valued at $1,679, the total value of the stolen property received being changed to $3,679. Counsel for both defendants specifically stated that they had no objection to the motion. The motion was thereupon granted and the counts amended.
The jury found Pierson guilty on counts 1 and 2 and acquitted him on count 3. Defendant was acquitted on counts 1 and 2 and convicted on count 3.
During the night of November 23-24, 1960, the warehouse of George Rapp, Inc., a beer distributor, was entered and a large number of cases of bottled and canned beer taken. Also stolen were two company trucks, a Ford and a Chevrolet. Newark police officers Bossert and Buttros testified that while cruising in their patrol car that night they received a call at 1:10 A.M. assigning them to investigate suspicious persons at Fourth Avenue and Fifth Street, Newark,
unloading a truck which might contain stolen beer. They proceeded to the area and saw two men lifting beer cases on top of an open rack-body truck alongside the Venetian Tavern. The patrolmen parked their car some 20-25 feet behind the truck and got out. Both positively identified the two men as Bozeyowski and Pierson. When the men saw the officers they put down the cases, got off the truck, and proceeded to walk away nonchalantly. Bossert called to them to come back, but they increased their pace and when they got to the corner about 20 feet away, turned the corner and ran. Bossert followed in immediate pursuit and apprehended defendant after a brief chase. Pierson had disappeared, but was soon picked up by another policeman.
That the Rapp warehouse was unlawfully broken into and entered is not disputed and was testified to in detail. John Captor, president of the Rapp company, testified that about 450 cases of beer were missing from the warehouse, as were the Ford and Chevrolet trucks which were kept parked in front. When he went to the precinct station he was shown and identified the two missing trucks. He again identified the trucks from photographs at the trial. Bossert had previously identified one of the photographs as the Chevrolet truck on top of which he saw defendant and Pierson, and photographs of the Ford truck as the truck found parked on Fourth Avenue. Captor testified that when he went to the police station garage he found 238 cases of beer on the trucks and the floor. He then went to the Venetian Tavern and saw 179 cases of beer in the cellar. He said that about two or three days later another 30 cases were found in a side room in the tavern cellar, but an objection to this testimony was sustained. The total of 447 cases -- brands handled by Rapp -- was returned to the company. Captor admitted he could not positively identify the cases of beer in the cellar as Rapp's.
There was testimony concerning an alleged out-of-court oral confession made by Pierson, but the court gave limiting
instructions to the jury that this statement had no evidential value as against defendant and could not be considered evidence of his guilt.
Defendant moved at the close of the State's case to dismiss the indictment. The motion was denied.
Bozeyowski took the stand on his own behalf and testified that he had spent the day, from about 11 A.M. to shortly after midnight, drinking at the Ritz Tavern in Newark. By the end of the evening he felt "dizzy and woozy." He and Pierson then went in Pierson's car to the Venetian Tavern, allegedly in search of work and to look for women. As they were about to enter the bar he noticed a truck with a group of men, and then saw the police car pull up. When the men started to run, he ran also. He explained that he did so because he was on parole and knew he had no business being at a bar at that hour of the night and in his condition.
Shortly after the trial defendant moved for an order setting aside the verdict and granting a new trial. The only grounds assigned were that the verdict was "based upon passion, prejudice and compromise and was contrary to the weight of the evidence." The motion was denied. Thereafter the County Court judge sentenced Bozeyowski to a 3-5-year State Prison term. The court granted his motion to vacate the sentence and resentenced him to serve a 2-3-year term. Defendant then appealed.
Defendant's first contention is that having been indicted jointly with Pierson for both larceny and receiving, it was error to convict him of receiving stolen goods at the same time that Pierson was convicted of larceny. This contention was not advanced on the motion for a new trial. The theory behind defendant's argument is that since the indictment charged him and Pierson with acting in concert, each man was in fact the alter ego of the other. Convicting Pierson of larceny and defendant for receiving the same goods was therefore tantamount to convicting defendant of receiving
the very property he was guilty of stealing. Defendant contends that the only verdicts possible were: both guilty of larceny, both guilty of receiving, or one guilty of either larceny or receiving and the other not guilty.
The State readily agrees that a person cannot be convicted of stealing and receiving the same goods. State v. Shelbrick , 33 N.J. Super. 7, 10 (App. Div. 1954). But such is not the case here. As the trial judge pointed out on the motion for a new trial, the question whether defendant and Pierson were together all night was one of fact for the jury to decide. He also pointed out that there was no direct evidence that defendant was involved in the larceny.
An indictment charging both larceny and receiving is not improper. State v. Friedman , 98 N.J.L. 577 (E. & A. 1923). Defendant relies on the Shelbrick case in support of his first point. That case merely holds that the same person cannot be guilty of both larceny and receiving. The court went on to say, however, that the two offenses may be asserted in separate counts of an indictment, citing State v. Friedman , above, even though convictions on both counts would be repugnant. Further, that where the two offenses are joined and there is a jury question as to whether the defendant is the thief or the receiver, "the proper practice is for the court to charge the jury that they should specify the particular offense if a verdict of guilty is found." (33 N.J. Super. , at page 10.) And see State v. Coggin , 30 N.J. 129, 131 (1959). This was done, and the jury then proceeded to find defendant guilty only of the crime of receiving.
In United States v. LeFanti , 255 F. 210 (D.C.N.J. 1919), affirmed 259 F. 460 (3 Cir. 1919), the defendant was jointly indicted with thieves for receiving stolen goods. He argued that because he was jointly indicted, his conviction should be set aside. The court held it to be well settled that "where two or more are jointly indicted for having received ...