Kilkenny, Halpern and Lane. The opinion of the court was delivered by Halpern, J.A.D.
Defendant was convicted by a jury of breaking and entering Saint Agnes Church, of Atlantic Highlands, with intent to steal, in violation of N.J.S.A. 2A:94-1. His indeterminate term to the New Jersey Reformatory for males was suspended, and he was fined and placed on probation for two years. The appeal is from the judgment of conviction.
The jury could have found from the State's proofs that defendant, Jeffry McCann and Raymond Piano broke and entered Saint Agnes Church about 1 A.M., on June 4, 1969. Although nothing had been stolen, some things had been tampered with -- i.e. , a chalice cloth bag with a quarter in it and some keys were taken from the church safe and found within the church; and a smoldering candle was found in a glass holder. The police found the three intruders hiding in the basement.
By way of defense the defendant and his witnesses testified that McCann had been thrown out of his sister's home where he resided, and they had entered the church to sleep for the night. Defendant denied touching or stealing anything, but intimated that his companion, Raymond Piano (who previously had pled guilty), was running around in the church and misplaced the church property.
The narrow issue before us is whether the trial judge committed prejudicial error in his supplemental charge to the jury.
N.J.S.A. 2A:94-1 provides:
Any person who willfully or maliciously breaks and enters, or enters without breaking, any building, structure, room, ship, vessel, car, vehicle or airplane, with intent to kill, kidnap, rob, steal, commit rape, mayhem or battery, is guilty of a high misdemeanor.
In his original charge the trial judge read the indictment and the pertinent part of the statute to the jury and properly instructed them on all the elements constituting the crime charged. After deliberating for about two hours the jury inquired: "Is the intent to steal before entering presumed if they decided to steal after they got into the church?" The trial judge responded:
Well, I charge you, as I did in the main charge, that intent is to be derived not only by the oral testimony in the case but by the actions of the various people concerned. Intent is usually a secret matter and therefore is not subject to a clear exposition that at this moment I intended to do this thing, at that moment I intended to do another.
Now, to answer your question specifically I charge you that if at any time after they entered the church the specific intent to commit larceny was formed or the specific intent to steal was formed that intent will relate back to the moment of entry. In other words, this is an integrated completed crime. It had its beginning when they broke and entered or entered without breaking the church and whatever they did inside it is an integrated whole and no matter at what point during that series of events the specific intent was formed, if it was formed, that specific intent will relate back to the beginning of the acts that constitute the crime.
Appropriate objection was made to the supplemental charge. In about 45 minutes the jury returned a verdict of guilty. On defendant's motion for a new trial based on the alleged error in the supplemental charge, the trial judge, with commendable frankness said:
The provisions of N.J.S.A. 2A:94-1 make it mandatory that the statutory intent to steal must coexist with the breaking and entering, or entering without breaking, before one is guilty under the statute. The language used leaves no room for a contrary construction. No reported New Jersey decision has been called to our attention dealing with a situation where the criminal ...