Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
Thomas Sullivan (hereinafter "defendant") was found guilty by a jury in the Monmouth County Court of assault with intent to rob. He was sentenced to the Bordentown Reformatory for an indeterminate term. Defendant appeals from this judgment of conviction, contending that the trial court erred in denying his motions for a judgment of acquittal at the end of the State's case and at the close of the entire case, and improperly charged the jury as to the meaning of "accessory" and "intent."
The indictment charged that defendant and one Frank Picciotti did unlawfully and feloniously make an assault upon James Bova, with intent to steal, contrary to the provisions of N.J.S. 2A:90-2.
The evidence discloses these facts. James Bova, a 74-year old bartender at Bova's Bar in Long Branch, a corporate-owned tavern, left the bar by taxi for his home about 4:45 A.M. on May 13, 1961. He arrived at his residence at 263 West End Avenue, Long Branch, about 5 A.M. After leaving the taxi at the curb, Bova walked along the sidewalk on the left or west side of his house to enter by the side door. As he passed what he described as a "Christmas tree" located alongside his house, he was suddenly jumped upon by two young
men who were facially masked by handkerchiefs from chin to nose. Bova was knocked to the ground and started calling for help. The taxi driver, John H. Kinsey, who had driven his taxi into a driveway across the street from Bova's home to make a call into his office, heard Bova and asked, "Mr. Bova, what's the trouble?" Kinsey started to back out of the driveway, saw two figures standing over Bova, and started to blow his horn. Thereupon, the two assailants ran down the alley and went to the rear of Bova's house. Bova arose from the ground and fired two shots in the air. He went into his house and phoned the police who arrived shortly thereafter and talked with him.
Meanwhile Kinsey, upon seeing the assailants flee, put his cab in reverse and backed down West End Avenue in a westerly direction toward Westwood Avenue. He could see two figures run through the field behind Bova's house and the adjoining houses toward Wooley Avenue. Kinsey then lost sight of the two figures but continued to back up. As he came onto Westwood Avenue, he saw a car come out of Wooley Avenue and head south along Westwood Avenue. He took notice of the driver and wrote down the license number. Kinsey drove north towards the high school to see if he could see anyone running and, when he didn't, returned to Mr. Bova's house and thence to the cab office.
Approximately 15 minutes later, Kinsey was standing outside the cab office and looking in the direction of the Rockwell Diner when he saw driven up in front of the diner a car similar to the one which earlier had come out of Wooley Avenue. He called the police from a nearby police call box, then drove his cab toward the diner. Before reaching it, the car pulled away. Defendant was driving the car and the license number was the same as that previously noted. Kinsey followed the car until it was parked in front of defendant's house. He notified police headquarters and police were dispatched to the scene. Later, at police headquarters, Kinsey identified the car and defendant as its driver. He did not identify defendant as one of the two figures whom he had
seen standing over Bova or running through the field behind Bova's house.
Several policemen went to defendant's house and there inspected the car reported to them by Kinsey. Some garden type dirt was found in the front and rear of the car. They were informed by defendant, who answered their knock on the door, that he was the owner of the car. Defendant invited the officers inside and they interrogated him as to his whereabouts that evening and were told that he had been out riding because he could not sleep and had just arrived home after having been at the Rockwell Diner.
Captain Purcell of the detective bureau soon joined the other officers at defendant's house. Defendant's younger brother Curt, 16-years old, and their mother Carmella were also present. Since the weather had been foggy and somewhat damp, and the field behind Bova's house somewhat muddy, the officers requested to see defendant's shoes and clothes and defendant voluntarily produced them. Upon their inspection, the police found them to be clean and dry. They also checked the shoes and clothing of defendant's brother Curt and discovered that shoes, admittedly his, were muddy and the legs of his pants, from the knees down, were damp. Both defendant, who was 19 years old, and his brother Curt denied any participation in the crime.
Defendant and Curt were taken to police headquarters and defendant's car was impounded. Bova was then brought to headquarters about 8 A.M. and there identified defendant and his brother as his assailants.
Curt Sullivan subsequently admitted to the police and testified at the trial as a witness for the State that he was one of Bova's assailants. In his testimony he referred to this assault as a robbery. Curt was not indicted because of his age. Curt had given a statement to the police after his arrest, as a result of which the codefendant, Frank Picciotti, was apprehended and subsequently indicted. At the trial, however, Curt denied that either Picciotti or the defendant was the other assailant. He claimed that it was some person,
known to him only as "Al," whom he had met for the first time at the diner only a few hours before the assault. The State claimed surprise and sought to neutralize Curt's testimony, but offered no further evidence implicating Picciotti, who denied all participation in the crime. Picciotti's motion for a judgment of acquittal at the close of the State's case was denied, but upon its renewal at the end of the entire case was granted.
Defendant's motion for a judgment of acquittal at the end of the State's case on the ground that there was no evidence supporting the charge of an intent to steal was denied. We refrain from deciding the propriety of that ruling because, for other reasons hereinafter stated, we are reversing the judgment of conviction and remanding the case for a new trial. A reversal for lack of sufficient evidence of guilt does not ordinarily warrant an appellate judgment of acquittal. See State v. Croland , 31 N.J. 380, 384 (1960). The preferred practice is the grant of new trial. Ibid. For aught we know, the State may produce at that new trial stronger and better proof of the intent to steal or rob, which may clearly satisfy the test for sufficiency of proof as most recently laid down in State v. Fiorello , 36 N.J. 80, 89-90 (1961).
Defendant testified concerning his movements during the evening hours immediately preceding the assault upon Bova. He left his house at 7:45 P.M. on May 12 and went to the Rockwell Diner. He met one Russell Ullery and drove him up to town to pick up Russell's girl friend who was arriving by bus from New York. After picking up the girl, all three returned to the diner. Later, Thomas Ullery arrived at the diner and he and defendant drove down to the boardwalk and then took a ride. When they came to the Rockwell Diner again at about 2:25 A.M., Donald Ullery asked defendant to drive him to Toms River, where his ...