Fritz, Lynch and Trautwein.
Defendant was found guilty in the Municipal Court of Swedesboro-Woolwich of a violation of N.J.S.A. 2A:119-2 (larceny). He was fined $150. After timely notice of appeal he was again found guilty after a trial de novo in the County Court. A new fine of $50 and $25 costs was imposed.
Defendant bottoms his appeal from the latter conviction on the following grounds:
(1) The court should have granted his motion to dismiss after the State had rested because there was no requisite proof of ownership of the goods in the party from whom the goods were allegedly stolen.
(2) Assuming proof of ownership and defendant's taking of the goods, the employer-employee relationship existing at the time of the taking completely dissipated an essential element in the crime charged, to wit, absence of consent by the owner of the taking of the goods.
(3) The evidence adduced was insufficient to support the verdict.
The facts are not complex. On September 14, 1970 defendant was employed by Morris Trucking Co. as a truck-driver and had been so employed for several years. Charles E. Morris, the owner of the trucking company, and his office manager, Albert B. Elwell, testified that sometime between 5:00 and 5:30 P.M. they observed defendant removing bags of material from the cab of his parked truck at the company's terminal and placing them in an automobile. The weather was clear and sunny. Defendant had been seen driving this same automobile on prior occasions. When first observed defendant was approximately 200 feet from Morris
and Elwell. They had traversed about 50 feet toward defendant when he got into the car and drove away. They entered their car and gave chase. They observed the car, later found to be registered in the name of Paschale Di Cintio, a fellow employee defendant, parked at a tavern about one-half mile away from the truck terminal. Upon examination they further observed nine 60-1b. bags of sugar in the vehicle of the value of about $7 a bag and called the police. Defendant and Di Cintio were present at the tavern premises. Defendant's own motor vehicle was also parked on the tavern premises. Defendant admitted that he had been at the tavern only a few minutes before Morris and Elwell arrived. Defendant took the stand and denied taking any goods or materials from the cab of his truck. It was uncontradicted that defendant drove the truck on the day of the alleged larceny; that Morris Trucking Co. had a contract to deliver sugar in 60-1b. bags to various supermarkets; that the brand name "Sue-Crest" was stamped on the bags of sugar found in the Di Cintio vehicle, as were a portion of the sugar bags loaded on defendant's truck on the date of the larceny; that on September 14, 1970 defendant's truck was loaded for delivery of sugar for which he signed a loading receipt; that defendant returned to the trucking terminal at the end of the day with receipts for delivery of all sugar previously loaded on his truck.
N.J.S.A. 2A:119-2, entitled "Stealing money, chattels and other articles, property and things," has been held to comprehend the common law offense of larceny. Gardner v. State , 55 N.J.L. 17 (Sup. Ct. 1892), aff'd 55 N.J.L. 652 (E. & A. 1893); 2 Schlosser, Criminal Laws of New Jersey (3d ed. 1970), § 66:2 at 218. As such it is the wrongful or fraudulent taking and carrying away by any person of the personal property of another, from any place, with a fraudulent intent to deprive the owner of his property. White v. Metropolitan Life Ins. Co. , 118 N.J.L. 149, 151 (E. & A. 1937); State v. Bullitt , 64 N.J.L. 379, 381 (Sup. Ct. 1900); Gardner v. State, supra; State v.
Davis , 38 N.J.L. 176, 177 (Sup. Ct. 1875); State v. South , 28 N.J.L. 28, 29 (Sup. Ct. 1859).
The complaint, here pertinent, charged defendant with taking, stealing and carrying away nine 60-1b. bags of sugar, of the value of approximately $65, from a Morris Trucking Co. truck. The complaint did not allege that Morris Trucking Co. was the owner of the sugar nor did the State's case so prove. The most that one can conclude from the proofs is that someone other than Morris Trucking Co. or defendant, presumably the consignor-sugar company, owned the sugar. While defendant does not attack the sufficiency of the complaint filed in the municipal court, he does contend that proof of legal ownership in Morris Trucking Co. is an essential element of the crime charged and the absence of such proof is a fatal deficiency in the State's case. Indeed, even if the complaint had alleged the goods were the property of Morris Trucking Co., defendant cannot prevail on this point. State v. Trunfio , 58 N.J. Super. 445 (App. Div. 1959), is clearly dispositive. There, defendant was charged in an indictment with the larceny of whiskey alleged to be the property of a common carrier while en route to a consignee. In response to the same argument, here present, referable to lack of ownership in the carrier, the court held that it was not necessary to state the nature of the interest held by the party from whom the goods were taken. Proof that the interest of the one from whom the goods were taken was that of a common carrier was sufficient to sustain the indictment, again underscoring the principle that the essential ...