Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
Defendant appeals from a conviction by a jury on an indictment charging him with the crime of breaking and entering Whitey's Tavern in Scotch Plains with intent to steal, in violation of N.J.S. 2A:94-1. This was the third trial of the indictment. Defendant's conviction on the first trial was reversed on appeal. 89 N.J. Super. 139 (App. Div. 1965). The second trial ended in a mistrial due to the failure of the jury to agree upon a verdict.
The tavern was broken into and ransacked during the early morning hours of January 25, 1963. Plainfield police officers in response to a radio call, apprehended two juveniles, Robert Auer, age 16, and Silvestre Guimmaries, age 17, who were riding in an automobile in the vicinity of the tavern at 5:30 A.M. Defendant was picked up by Scotch Plains police officers at about 6:30 A.M. while he was walking on Route 22 about a mile from Whitey's Tavern and two or three blocks from his home.
The State sought to establish defendant's guilt of the crime through the testimony of the two juveniles. Auer testified that he and Guimmaries met defendant at the Wagon Wheel restaurant in Scotch Plains at about 11:30 P.M. on the night preceding the crime. He said defendant asked them
to help him out -- that they were going to "pull a job." Thereafter the two juveniles and defendant drove in Guimmaries' car to a parking lot across the street from Whitey's Tavern where they waited until all the persons left the tavern for the night. Auer testified that he and the defendant left their wallets in the car together with defendant's eyeglasses so that they would not get lost during the burglary. While Guimmaries waited in the car defendant and Auer broke into the tavern. Once inside they broke open various coin boxes and cash registers, filled a paper bag with money, and helped themselves to drinks. They fled from the building upon hearing someone enter. Auer said he joined Guimmaries in the car and they drove away. Shortly thereafter they were stopped by the police. Guimmaries' testimony substantially corroborated that given by Auer.
Defendant did not take the stand in his own defense. However, his version of the facts is revealed through verbal statements made by him to police officers. He told them that he had met Auer and Guimmaries early in the evening at which time Auer stole his wallet and eyeglasses. He also told the officers he had gone to New Brunswick and had been driven back to Scotch Plains by a friend named Bergman, and that he had been picked up by the police after he had walked a short distance from the place where Bergman had let him out of the car. He denied any participation in the crime.
The crucial issue raised by defendant on this appeal is whether the trial court committed prejudicial error in permitting the State to introduce testimony by a police officer indicating that defendant's wallet and eyeglasses had been found by the police in Guimmaries' car after the crime had been committed. Prior to the trial the court had granted defendant's motion to suppress such articles as evidence on the ground that they had been obtained by means of an unlawful search and seizure.
During the cross-examination of Auer, the following occurred:
"Q. (by defense counsel): Did you mention Louis Wade's name when you were questioned by the Plainfield police?
Q. When did you first implicate Mr. Wade in ...