Kilkenny, Halpern and Lane. The opinion of the court was delivered by Halpern, J.A.D.
[113 NJSuper Page 349] After a trial by jury, defendant was convicted of receiving a stolen I.B.M. electric typewriter.
He was sentenced to a suspended State Prison term of 2-3 years, placed on probation for 3 years, and fined $500. He appeals from the judgment of conviction.
The jury could find from the State's proofs that on January 8, 1967 the offices of the C.R. Bard Co. in Bridge-water Township, Somerset County, were burglarized and approximately $5,000 worth of office equipment was stolen, including the typewriter later found in defendant's possession.
Defendant admitted possession of the typewriter but denied knowing it had been stolen. In explaining how he obtained possession he testified:
Q Mr. Brown, would you kindly tell this Court and jury specifically how you acquired this IBM typewriter.
A Well, I was coming down Old York Road up in Bradley Gardens. It was in the early hours of the morning and there was a fellow with a flat tire there. There was two fellows and they had these machines in the car and they didn't want to leave them on Old York Road overnight in their car. They asked me to hold them until the next day.
I gave them my room where I was living and the address. I dropped them off at the diner and I haven't seen them from that day to this.
When the men did not return within two months he concluded the machines must have been stolen, so he stored them at his father's home in Point Pleasant. He admittedly loaned the typewriter in question to his daughter during Christmas of 1967.
The issues presented on this appeal revolve around the testimony of his former wife, Columbia Brown. She testified that she married defendant in 1945 and that two children were born of the marriage, Marion and Robert. They separated in 1959 and had not lived together since that date. Prior to December 1967 when defendant visited with Robert at her home, she overheard defendant tell Robert that one Dominick Angelone had some typewriters which defendant was to sell or get rid of. About Christmas of 1967 she saw defendant give, or loan, the typewriter in question to her daughter Marion. On March 4, 1968 a judgment nisi
for divorce from defendant was entered, final judgment being entered on June 5, 1968. The trial in the instant case commenced on June 9, 1969.
Columbia's testimony as to the conversation was admitted over the objection of defendant. He contends the court erred because (1) under New Jersey Evidence Rule 23(2) Columbia was not competent to testify against him because they were still married when she overheard the conversation with Robert, and (2) New Jersey Evidence Rule 28 prevents her from disclosing a communication made in confidence by him at her home. ...