Collester, Lynch and Michels. The opinion of the court was delivered by Collester, P.J.A.D.
Defendant was indicted for breaking and entering with intent to steal and larceny. At the conclusion of his trial the jury was unable to agree upon a verdict and was discharged by the trial judge. Thereafter, defendant moved pursuant to R. 3:18-2 for a judgment of acquittal, which was granted by the court. The State appeals. We withheld our decision to await the opinion rendered by our Supreme Court in State v. Sims, 65 N.J. 359 (1974). See discussion infra.
The State charged that at about 2 A.M. on January 10, 1972 defendant broke a window and entered the office of the Somerset Hotel in Somerville where he pried open a cash box and escaped with $132.70. The testimony of the State's witnesses can be summarized as follows.
Robert Radcliff, the hotel night watchman, testified that while making his rounds he heard the window being broken in the hotel office. When Radcliff reached the lobby he saw defendant come out of the office with his face covered by a blue pea jacket he was wearing. The witness said he attempted to grab the jacket but was pushed aside and defendant ran out of the hotel. Radcliff telephoned the police and told them defendant was wearing a blue pea jacket, striped trousers, and a "sort of white tassel cap with little red rings around it."
Radcliff further testified that a short time before the crime was committed he saw defendant talking with a police officer outside of the hotel and thereafter observed him staring into one of the hotel windows. He said he knew defendant, who was nicknamed "Woody," because defendant had formerly lived at the hotel.
When Radcliff reported the crime to police headquarters three police officers were directed by radio to investigate.
Officers Apgar and Tocci went to the hotel where they questioned Radcliff. Apgar left in his patrol car to search the area. He was joined by Officer Jones in another car. The two officers apprehended defendant six blocks from the hotel. Jones testified that defendant's trouser pockets bulged with money and a search revealed that he had $144.65 on his person. The money consisted of $17.65 in coins and $127 in bills of various denominations. Defendant told Jones, "Some of this money is mine." The officers took defendant to the hotel where he was identified by Radcliff as the man who had committed the break-in.
Officer Jones further testified that while on patrol at about 1 A.M., prior to the commission of the crime, he observed defendant near the rear of the hotel building. Since the hotel was closed the officer ordered defendant to come over to the patrol car. Jones said defendant, who wore glasses and had a beard, was wearing a blue pea jacket, a dark-colored knitted cap with a tassel, and dark trousers. The officer patted down defendant for weapons and found nothing on his person but a wallet. After questioning defendant and checking his driver's license for identification Jones released him and told defendant not to hang aroung the hotel.
Officer Tocci testified that when he and Officer Apgar arrived at the hotel to begin their investigation Radcliff gave them a description of the clothes the man who committed the crime was wearing, and said that he saw the man's face. None of the officers could recall whether defendant wore striped or solid colored pants -- only that they were dark-colored.
Defendant did not testify or call any witnesses in his defense. At the conclusion of the testimony the trial judge denied a motion for acquittal "without prejudice to assert a similar motion, under R. 3:18-2." The case was then submitted to the jury. After deliberating three hours the jury informed the court it could not agree upon a verdict, whereupon it was discharged.
Eight days thereafter defendant moved for a judgment of acquittal under authority of R. 3:18-2. The motion was granted by the trial judge on the ground that there was insufficient evidence upon which to base a conviction. In so ruling the judge said that the watchman's statement to the police that he had seen defendant's face should not be given any weight in view of his contrary testimony; that if the watchman's testimony was true, the individual whom he saw coming out of the hotel office could not have been defendant because he would not have had an opportunity to change his pants and hat before he was arrested by the police; ...