Conford, Kilkenny and Leonard. The opinion of the court was delivered by Kilkenny, J.A.D.
[105 NJSuper Page 320] A consolidated trial in the Cumberland County Court, before a jury, of two indictments against
defendant, one containing four counts and the other six counts, resulted in a verdict of guilty on all ten counts.
Defendant was sentenced to State Prison for consecutive terms of five to six years on the first and second counts of indictment 114-67 and concurrent terms of two to three years on each of the other four counts of this indictment. On indictment 220-66, defendant was sentenced to terms of two to three years on each of the four counts to run concurrently with the sentences under indictment 114-67. In effect, defendant has been sentenced to a term of 10 to 12 years.
Defendant appeals from the judgments of conviction. Eleven points are presented why the judgments should be reversed. One of them, in our view, mandates a reversal and remand for new trials.
The joinder for trial of the two indictments, containing in all ten counts, charging many crimes of various natures, separated in time in some instances by seven or eight months, involving some six different victims, diverse locations and different factual circumstances -- even though assigned defense counsel made no objection to the consolidation -- constituted "plain error," manifestly prejudicial to defendant. We note for the record that assigned trial counsel was not a regular member of the Public Defender's staff.
Indictment 220-66 charged defendant in the first count with breaking and entering Robinson's Gulf Station in Bridgeton on April 28, 1967 with intent to steal, in violation of N.J.S. 2 A:94-1. The second count charged that at the same time and place he stole some $17 in change, in violation of N.J.S. 2 A:119-2. The third count charged a separate breaking and entering, also on April 28, 1967, of the First Presbyterian Church, a different location in Bridgeton, with intent to steal, in violation of N.J.S. 2 A:94-1. The fourth count of this four-count indictment charged defendant with stealing $2 in change from the church, in violation of N.J.S. 2 A:119-2.
We can appreciate that the first and second counts are interrelated, so that no prejudice would result from trying them together. So, too, the third and fourth counts of this indictment 220-66 are interrelated and could be tried together without prejudice. Some argument might be made that it was not unduly prejudicial to try all four counts of this indictment at the same time, because the offenses were all committed on the same date, perhaps in close proximity in time, and in the same city of Bridgeton. The nature of the offenses is the same, namely, breaking and entering with intent to steal, coupled with larceny, in each of the two instances.
Indictments containing separate counts for breaking and entering with intent to steal and larceny are commonplace, as is their joinder for trial, when both crimes stem from the same incident and were allegedly committed by the same defendant or defendants. See State v. Fioravanti, 46 N.J. 109 (1965). There a single victim was involved. So, too, there may be a valid consolidated trial of a several-count indictment arising from the same episode, as where the defendant perpetrates a robbery and there are several victims of his criminal activity at the same time and place.
So, too, we are mindful of the rule of res inter alios acta and the exceptions thereto. Under this rule, the commission of one crime or of a series of crimes different from the one charged may tend to show that the defendant is a bad man, and thus make the inference easy that he might have committed the crime charged. The effect of such evidence, if admitted, would invariably be to prejudice the jury against the accused, and divert their minds from an impartial consideration of the evidence as to the particular crime charged. McKelvey on Evidence (5 th ed. 1944), p. 283.
A well-recognized exception to this rule of exclusion is the allowance of evidence of the commission of another crime to show motive, ...