Sullivan, Foley and Lewis. The opinion of the court was delivered by Sullivan, S.j.a.d. Foley, J.A.D. (dissenting).
Defendant and one William Rose were indicted for breaking and entering into a building belonging to Fred C. McMahan and the larceny of certain items of personal property therefrom. They were tried by a jury which returned verdicts of not guilty of breaking and entering, but guilty on the charge of larceny.
The pertinent proofs of the State may be summarized as follows. Mr. McMahan owned a garage type building in which he stored numerous items of personal property. McMahan had last seen these items in the building just prior to his going on vacation in the middle of August 1966. When he returned about September 10, 1966 he found a rear window screen cut out and the front overhead door unlocked and opened. A number of the items of personal property stored in the building were missing. Chris Meeth Jr. testified as a witness for the State that in the latter part of August 1966 defendant and Rose came to the service station which he operated and sold him items of personal property later identified as being some of the items missing from McMahan's building. According to Meeth, defendant and Rose told him that the items they were selling came "from their father's or grandfather's garage" -- that he had passed away and they were cleaning out the garage. John R. Blewett also testified as a witness for the State. He identified defendant and Rose as the two men who in the early part of September 1966 came to his place of business and sold him a quantity of scrap, copper, and brass, later identified as part of the items missing from the McMahan building. According to Blewett, he asked defendant and Rose where they got the "stuff" and they said that "their father" had died and that they were cleaning out the garage.
On this appeal, defendant makes three contentions. First, it is argued that the jury verdict was inconsistent and therefore necessarily represented mistake, prejudice, partiality or compromise on the part of the jury. Second, defendant contends that the prosecutor erroneously caused defendant to be indicted for breaking and entering and larceny when, in fact, the only possible indictment under the evidence should have been for receiving stolen goods. Third, defendant argues that the trial court prejudiced defendant's right to a fair trial by failing to specifically tell the jury that mere possession does not constitute larceny, counsel for defendant having requested such a charge.
As to the first point, we do not agree that the jury verdict was necessarily inconsistent. In State v. Dancyger, 29 N.J. 76, 92-93 (1959), where the jury did not find the defendant guilty of breaking and entering, but found him guilty of the larceny, the Supreme Court held that such a verdict was not inconsistent and did not demonstrate that the jury compromised on the issue of liability. In the instant case, the jury was charged that the State had to prove beyond a reasonable doubt that defendant and Rose broke into McMahan's garage. Since the proofs showed that the overhead door of the garage was found open, the jury may not have been satisfied that the actual breaking had been committed by these two, even though it was satisfied that they entered the garage and stole some of the personal property therein. It does not appear that the verdict prejudiced the defendant in any way.
Next, defendant argues that the only possible indictment under the evidence should have been for receiving stolen goods. We do not agree. This State follows the general rule that the unexplained and exclusive possession of stolen property shortly after the theft justifies an inference that the possessor is the thief. State v. Dancyger, supra, pp. 85-86. In the instant case, while the State was not able to produce evidence as to the exact date on which the larceny took place, it was proved that it had to have been committed after
August 15 and some time prior to the end of August, when defendant sold some of the stolen items to Chris Meeth Jr., an interval of some 14 days. In our opinion, considering the nature of the stolen goods (a chain saw, a welder, a Quarter Midget automobile, a minibike, snow blower, electric can opener, assorted hand tools, an electric drill, scrap copper wire with the insulation burned off and brass valves and faucets) and defendant's false explanation to Meeth and Blewett of how the goods came to be in his possession, together with the relatively short period of time involved, a jury could have properly inferred that defendant had committed the larceny.
As to defendant's third point, after the jury had been charged, counsel for defendant stated that there were no objections, but he would like to have included a reference to the fact that mere possession did not constitute larceny. To this the court answered that it had charged the jury as to the elements of larceny and that the requested instruction was unnecessary.
We see no error. The court, after reading the provisions of the larceny statute to the jury, charged as to the elements of the crime, including the necessity for proving a felonious or wrongful taking with the intent to deprive the owner of his property, the court adding: "Fraudulent intent is a necessary element of larceny." Defendant's requested charge may have been correct as an abstract principle of law, but when viewed against the background of the State's proofs it was not accurate. As heretofore noted, possession of stolen property under certain circumstances is evidence from which a jury may properly infer that the possessor committed the larceny.
The dissent filed herein finds prejudice to defendant amounting to "plain error" in that the trial judge did not charge the jury that mere possession of stolen property was not evidence of larceny unless the interval of time separating the theft from the possession was so short as ...