Sullivan, Carton and Halpern. Halpern, J.A.D.
Defendant appeals from a conviction after a jury trial on a charge of breaking and entering a Bridgeton liquor store with intent to steal, contrary to N.J.S.A. 2 A:94-1.
The State's proofs were to the effect that during the early hours of January 1, 1967 a burglar alarm sounded at the city hall from a burglar alarm system connected with the liquor store. The members of the Bridgeton police dispatched to investigate came upon defendant and one Cole in or near the store premises when they arrived at the scene. Officer Heath testified that while he was looking through the window of the door of the store he observed a man, later identified as Cole, climbing through a hole made in the store ceiling; that he fired two shots at Cole, but Cole escaped through the hole. Cole was later apprehended and ultimately pled guilty to the charge of breaking and entry and was confined to jail awaiting sentence when defendant's trial commenced.
So far as defendant's involvement in the transaction was concerned, the thrust of the evidence was that a window on the second floor of the building was found broken, and that defendant had sustained injuries when he escaped through the broken window, leaving a trail of blood, and that he staggered from the side of the building to the street, where he was apprehended and found to be bleeding profusely from the head and a cut on the left arm. His story to the police was that he had just been mugged.
The State's proofs were sufficient to sustain the jury's guilty verdict. The narrow issue presented is whether what occurred at the trial comported with due process and whether the verdict reached was the result of a fair trial.
A number of errors occurred at the trial which so deeply affected the fundamental rights of the defendant as to require a new trial:
(1) Cole, the only witness for the defense, completely exonerated defendant from any implication in the breaking and entry. This was the situation when the prosecutor finished his cross-examination of Cole and the court questioned the witness:
Q. Did you ever tell Detective Gauntt that Mr. Johnny Lee Lemon went upstairs to warn you that the cops were coming at the Bridgeton Liquor Store while you were breaking through the ceiling?
Q. What did you tell Mr. Gauntt with respect to Johnny Lee Lemon?
A. Nothing I can remember, because Johnny Lemon really wasn't ...