Goldmann, Freund and Foley.
Defendant appeals as an indigent from a County Court judgment of conviction based on a jury verdict finding him guilty of entering with intent to steal (N.J.S. 2A:94-1) and stealing (N.J.S. 2A:119-2).
Defendant stood trial on two indictments returned by the Essex County grand jury. The first, No. 947-61, charged him and two others, Fitts and Wilcher, with stealing a certain truck. The second, No. 946-61, was in three counts, charging defendant, Fitts and Wilcher with (1) willfully entering the store of one Smith with intent to steal; (2) stealing a quantity of meat therein belonging to Smith; and (3) knowingly receiving the meat (N.J.S. 2A:139-1). Fitts and Wilcher pleaded guilty to the entering and larceny charges in the latter indictment prior to the trial. Their testimony at the trial on behalf of the State completely implicated defendant as the man who had driven the truck, broken into and entered the Smith building, and helped steal the meat. Defendant did not take the stand in his own behalf, nor offer any evidence. The jury returned a verdict of not guilty on indictment No. 947-61. As to the other indictment, the jury at first found defendant guilty of all three counts, but after the trial judge noted that if it found defendant guilty of larceny it could not find him guilty of receiving, the jury was polled and unanimously found defendant
guilty of entering with intent to steal and stealing, and not guilty of receiving. The trial judge imposed a sentence of 3-5 years in State Prison on the entering charge and suspended sentence on the larceny count.
Defendant first argues that the court's charge on defendant's failure to testify in his own behalf was "unduly prejudicial." The contention has no merit whatever. The charge fully conformed with the rule laid down in State v. Corby , 28 N.J. 106 (1958), and Rule 23(4) of the Uniform Rules of Evidence , enacted into law by L. 1960, c. 52, § 17 (N.J.S. 2A:84A-17(4)). As hereinbefore noted, there was direct evidence of defendant's active participation in the crimes of entering and larceny, as charged in the first two counts of the indictment. If this evidence was untrue, defendant could have disproved it by his own testimony. He did not see fit to do so. Under the circumstances, the trial judge was amply justified in charging the jury as he did -- that defendant's failure to testify in his own behalf "raises a permissible inference that he could not truthfully deny those facts." The judge went on to say that defendant was entitled to have the jury consider all the facts in evidence, and even if he did not under oath deny such facts as incriminated or tended to incriminate him, he was entitled to the presumption of innocence unless and until the jury agreed upon a verdict of guilty after considering all the evidence.
Defendant next argues that the trial court's failure to direct a verdict of acquittal on the receiving count was erroneous and served to prejudice defendant's right to a clear and appropriate jury charge. After the State rested, defendant moved for acquittal on both indictments. The court held that the State had established a prima facie case, and that the matter should go to a jury. Since the jury acquitted defendant on the indictment charging theft of the truck, the only question is whether the trial court's refusal to grant acquittal on the second indictment, and particularly the third count charging defendant with receiving stolen goods, was erroneous. We find there was evidence sufficient to support the
crimes charged in the three counts of the second indictment, and that the matter was properly submitted for jury resolution.
Defendant claims that acquittal on the receiving count should have been granted because the charge of receiving was "grossly misleading and confusing." We find that the trial judge carefully defined the crimes charged in each of the counts and the essential elements of each. He instructed the jury that it should consider each of the counts separately, and then said:
"Now, with respect to the third count, if you find that this man was there, that he did enter this building, that he stole this meat, then, of course, the third count which charges him with receiving it is repugnant, because if he stole it, surely he had it. * * *
Now, it might very well be that you will find from the evidence that he did not enter the building or that he did not steal it, but that he received it, and you heard the testimony. So that if you come to the conclusion that the State has failed in the first two counts but if you find it established beyond a reasonable doubt that he did receive that meat, you may find him guilty on that count. * * *."
It would have been helpful had the judge told the jury that if it found defendant guilty on the larceny count, it could not find him guilty of receiving. This might have avoided the verdict which the jury ...