Lynch, Allcorn and Furman. Furman, J.s.c., Temporarily Assigned (dissenting).
[133 NJSuper Page 170] Defendant appeals his convictions of the offenses of (1) breaking and entering with intent to steal and (2) larceny, entered upon jury verdicts.
Initially, our review of the record satisfies us that there was sufficient proof the guilt of defendant to justify the verdicts of the jury on both charges. Contrary to the assertion of defendant, those proofs included considerable evidence other than and in addition to the evidence of defendant's statement that he was in possession of the stolen property. There was error neither in the denial of defendant's motions for judgment of acquittal nor in the denial of his motion for a new trial.
The defendant takes exception also to the failure of the trial judge to charge the jury that "evidence of mere possession of the stolen property was not evidence of larceny unless the time interval between theft and possession was so short as to permit a reasonable man to conclude that defendant was the thief. * * *" It is significant that trial counsel made no request whatever for such an instruction, nor did he take exception to the omission of such an instruction from the charge as given. Equally worthy of note is the fact that the trial judge did not charge the basic proposition as to the permissible inference arising from recent possession of the stolen property.
It has long been an accepted principle that "unexplained and exclusive possession of stolen property shortly after the theft justifies an inference that the possessor is the thief." That principle was so stated more recently in State v. Dancyger, 29 N.J. 76, 85 (1959), cert. den. 360 U.S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255 (1959), and was there further explicated by the accompanying comment that "the shorter the period between the theft and the possession the stronger this inference becomes." Id. In Dancyger, this principle was enunciated as a proper yardstick to be applied by the court in passing upon motions for acquittal addressed to the sufficiency of the evidence at the close of the State's case and at the end of the entire case.
Quite obviously, the principle is nothing more nor less than a statement of elementary logic which anyone, judge or juror, would apply as a matter of common sense in evaluating
this single piece of circumstantial evidence in the setting of all the other evidence in the case. Thus, the principle is not a rule of law in the sense that the trial judge is required to specially instruct the jury with respect thereto in a case in which there is evidence of recent possession by defendant, any more than the trial court is required to specially instruct the jury concerning the inference that may be drawn from any other piece or segment of evidence in the case, circumstantial or direct. In any event, even assuming it to be appropriate for the trial judge to specially instruct a jury as to the inference that may be drawn from recent possession of stolen property, there is no obligation on the judge to so charge in the absence of a request therefor.
Additionally, it should be noted that defendant does not claim any error by virtue of the failure of the judge to instruct the jury on the inference itself. His assertion of error goes only to the failure to charge that "mere possession of the stolen property was not evidence of larceny unless the time interval between theft and possession was so short as to permit a reasonable man to conclude the defendant was the thief." In effect, defendant thus seeks to avail himself of the benefits of a qualifying integral part (the time lapse) of the principle without subjecting himself to the risk of the likely prejudicial effect of an instruction setting forth the fundamental principle and inference itself. At the same time, defendant would place upon the trial judge the obligation of giving this incomplete and distorted instruction on his own motion.
It is significant that neither defendant who advances the contention nor the dissent which endorses it, has supplied a single supporting authority other than a dissenting opinion in State v. Thomas, 103 N.J. Super. 154 (App. Div. 1968). Of further significance is the fact that the majority in Thomas rejected the contention out of hand, despite the fact that counsel for defendant had there requested such a charge of the trial court -- unlike the present case where no request
was made, no objection was taken, and the contention is raised as plain error. In our view, the contention is without substance or merit.
Equally devoid of merit is defendant's contention that the trial judge erred in the definition of "breaking" contained in the charge, as supplemented. So far as concerns the sentences imposed (three to five years incarceration on the breaking and entering charge and a concurrent two to three year term on the larceny charge), they were eminently reasonable and well warranted when viewed in the light of the nature of the offenses of ...