For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
[49 NJ Page 493] Defendant was found guilty in the Camden County Court after a trial by jury of grand larceny, robbery, and atrocious assault and battery. The sentences entered on the record show terms of one to three years (suspended) for the grand larceny, two to three years (suspended) for the robbery, and ten to fifteen years for the atrocious assault and
battery (to be consecutive to a prior sentence). The Appellate Division, with the State conceding the point, set aside the conviction for grand larceny because the State had failed to prove the value of the property (an automobile) stolen. The court, with the State again offering no objection, vacated the sentence of ten to fifteen years for atrocious assault and battery and remanded for resentencing because the term given illegally exceeded the statutory maximum. N.J.S.A. 2A:90-1 and N.J.S.A. 2A:85-6. Before argument of defendant's appeal in the Appellate Division, the trial judge by letter had informed the prosecutor and the court that: "The sentence for Robbery has been mistakenly made under the Atrocious Assault and Battery indictment and the sentence should be corrected." The Appellate Division held that the trial judge under R.R. 3:7-13(a) could "increase or decrease" any sentence within 20 days of the appellate mandate, and therefore the court did not consider whether the trial judge could correct the mistake by which the sentence for the robbery conviction was entered for the atrocious assault and battery conviction. The Appellate Division otherwise affirmed the convictions for robbery and atrocious assault and battery finding no reversible error. Defendant petitioned for certification, and we agreed to hear the appeal.
The State's first witness, Norman Nicolai, testified that on October 25, 1963 he was working alone in a gasoline service station in Collingswood. At about 10:00 A.M. a man came to the station and inquired about the price of snow tires. After some five minutes discussion of price and inspection of tires, and while the two men were in the station's office with Nicolai sitting at a desk and the man standing beside him, the man suddenly struck Nicolai on the head. Nicolai then grabbed the man's hands and said: "My God, man, you don't have to hit me, I'll give you the money." The man said: "I'll kill you, you'll get the cops." He then struck Nicolai some 14 or 15 times with a hammer. Nicolai then got under the desk, took the hammer from his assailant, and threw it across the room. While under the desk he emptied his pockets of money
(about $29) and tossed it on the floor at the man. When he got out from underneath the desk, his assailant struck him on the head with a large glass ashtray. Nicolai then managed to get out of the office, and ran through the garage to the outside. The man followed him out, unsuccessfully attempted to take an automobile, and then ran away. Although Nicolai did not see the man take the money, it was gone when Nicolai with the help of a passerby returned to the office.
In court Nicolai identified defendant as his assailant. He also testified that he had identified defendant as the assailant on the morning following the attack when defendant was brought to the hospital where Nicolai was receiving treatment for his injuries.
Mrs. Frances McGrath testified that shortly after 10:00 A.M. on October 25 she was at the home of Mrs. Winifred Traveline in Collingswood, about one block from the gasoline station. Mrs. Traveline's automobile was parked in the driveway with the keys in the ignition. Mrs. McGrath, on coming out of the house, saw a strange man at the car; the man got in and drove away despite her efforts to stop him. The man had blood and grease on his face and clothes.
In court Mrs. McGrath identified defendant as the man who took the car. She also said that on the afternoon of October 25 she identified defendant as the thief from a photograph shown to her by Detective Conroy of the Collingswood police. That evening she was taken to the police station with Mrs. Traveline and identified defendant who was then sitting in a room with Detective Conroy.
Mrs. Traveline confirmed the testimony of Mrs. McGrath about the theft of her car and in court identified defendant as the thief.
Detective Conroy testified that on October 25 he arrived at the gas station at about 10:15 A.M. in response to a call and began an investigation. After receiving descriptions of the culprit from the two women and a police officer who had spoken to Nicolai, Detective Conroy returned to police headquarters, obtained a photograph of defendant, and took this
to Mrs. McGrath. He said that she identified the photograph as showing the automobile thief. As a result of this information, he arrested defendant at his home. Conroy said that the shirt defendant was then wearing had small stains on the sleeve and tail.
That evening Detective Conroy took the two women to police headquarters. They stood in the hall looking through a one-way glass in an office door while he and defendant sat in the office. Conroy said that the two women identified defendant as the man who took the car.
Also that evening at the hospital Detective Conroy showed a photograph of defendant to Nicolai who identified it as showing his assailant. Conroy also testified that the next morning he took defendant to Nicolai's hospital ...