Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.
Defendant appeals from a judgment of conviction for armed robbery, N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5, following a jury verdict of guilty.
On October 20, 1967, at about 1 P.M., Paul Caruso, the operator of a grocery and luncheonette at 399 South Orange Avenue, Newark, heard screams coming from his living quarters in back of the store. Just before this his married daughter, Pauline Testa, employed by him in the store, had left it to use the bathroom in the rear apartment. Caruso rushed to the rear of the store and upon opening the door to the living quarters was confronted by defendant, who had a gun in his hand. As he approached the intruder a bullet
from the gun was discharged into the ceiling. Following this there was a struggle between the two men in the course of which Caruso was struck over the head with the gun barrel. His attacker later made his escape through the store and into the street. Caruso's subsequent search revealed that approximately $700 in cash and other items of personal property were missing. The indictment was for robbery of $300. Defendant did not take the stand, but adduced testimony that he had been at home at the time of the alleged robbery.
There were two entrances to the living quarters, one from the store and the other from the rear yard. The one from the store was located where it could normally be observed by the owner. The one in the rear was protected by a double lock and a burglar alarm. Presumably, the intruder gained entrance through the store.
Defendant raises two points: (1) the trial judge erroneously denied his motion for acquittal, and (2) he committed plain error in the charge.
N.J.S.A. 2A:141-1, provides that any person who forcibly takes from the person of another money or personal goods and chattels of any value whatever by violence or putting him in fear, is guilty of a high misdemeanor. Thus, force or intimidation is a necessary element of the crime and must precede or be concomitant with the taking. 46 Am. Jur., Robbery , §§ 14, 19, at. 145, 148 (1943); 77 C.J.S. Robbery , §§ 10, 11, at 455-457 (1952). The property stolen need not have been in contact with the person from whom it was taken at the time it was stolen, and if taken by fear it must be the result of such demonstration or threat as to create reasonable apprehension on the part of the victim that, if the theft were resisted, force would be used. State v. McDonald , 89 N.J.L. 421 (Sup. Ct. 1916), affirmed 91 N.J.L. 233 (E. & A. 1918). While a secret or sudden taking of property from the owner without putting him in fear and without open violence is deemed larceny, if there be a struggle to keep it or any violence or
disruption, the taking is robbery. 2 Schlosser, Criminal Laws of New Jersey (rev. ed) § 2146, at 1064 (1953).
Defendant urges that proof of the force or intimidation necessary to support the charge of robbery was lacking. The gist of his argument is that the assaults neither preceded nor were concomitant with his taking of the property.
From our review of the record we are fully satisfied of the propriety of the denial of defendant's motion for acquittal.
When Mrs. Testa unexpectedly went to the rear apartment, the intruder came at her from the rear, striking her on the back of the head, knocking her to the floor and striking her again while she lay there. When, upon his appearing to walk away from her, she got up and attempted to walk towards the front of the store to get help, he blocked her way, facing her with the gun in his hand. She described what then transpired as follows: "He said, 'Don't scream and I won't shoot. I don't want to hurt you any more.' And then I begged with him to let me go into the bathroom to leave me alone. He could take whatever he ...