State v. Cammarata

• Decision Date: 09 January 1934
• Docket Number: No. 42.,42.
• Citation: 169 A. 646
• Parties: STATE v. CAMMARATA et al.
• Court: New Jersey Supreme Court

169 A. 646

STATE

v. CAMMARATA et al.

No. 42.

Supreme Court of New Jersey.

Jan. 9, 1934.

Error to Court of Quarter Sessions, Mercer County.

Michael Cammarata and others.were convicted under an indictment charging burglary of a garage while in the possession of a certain offensive weapon, to wit, a sawed-off shotgun, and they bring error.

Judgment affirmed.

Argued May term, 1933, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

William A. Moore and Joseph J. Felcone, both of Trenton, for plaintiffs in error.

Erwin E. Marshall, Prosecutor of the Pleas, and Augustine V. Gribbin, both of Trenton, for the State.

PER CURIAM.

This writ of error brings up for review the conviction of the defendants below upon an indictment charging that they, "having in their possession a certain offensive weapon, to wit, a sawed-off shotgun, loaded with gunpowder and shot, did then and there by night, wilfully and maliciously break and enter the garage of August Marcello, with intent the goods and chattels of the said August Marcello, in the said garage then and there being found, feloniously to steal, take and carry away," etc.

The assignments of error and specifications of causes for reversal are identical, and will now be considered.

We think there was no error in the rulings of the trial court on the admission of evidence as to the presence of many cans or drums of alcohol in the garage into which the defendants were alleged to have broken with intent to steal, and as to the amount thereof, and as to what was done with it by the police at the time of the arrest of the defendants at the garage.

The objection was that the evidence was immaterial and irrelevant. But, the intention to steal being a material and essential element of the offense, any evidence of the contents of the garage that might be the object of theft is certainly relevant to the issue of intent to steal and material to the charge in the indictment.

The defendants argue that, inasmuch as this testimony tended to show the commission of, another offense, its admission was erroneous. But there is no merit in that contention. The defendants were being tried for a violation of section 2 of chapter 321 of P. L. 1927 (Comp. St Supp. § 52—43r(2), and, the evidence being admissible on that charge, it was immaterial whether or not the evidence tended to prove another crime. State v. Catania, 102 N. J. Law, 569, 134 A. 110. With respect to the evidence referred to in the second assignment of error, it is sufficient to point out that the question objected to by the defendants was a proper question, and the answer thereto was permitted to stand without objection by the defendants, and without any motion to strike it out as irresponsive.

We think there was no error in admitting in evidence the shotgun and shells. The indictment alleged that the defendants did break and enter, "having in their possession a certain offensive weapon, to wit, a sawed-off shot gun, loaded with gunpowder and shot." That allegation was in conformity with section 2 of chapter 321, Laws of 1927, p. 743, which reads in part as follows: "2. Any person who shall commit or attempt to commit any assault, robbery, larceny, burglary, or breaking and entering, when armed with, or having in his possession, any revolver, pistol, or other firearm, or other instrument of any kind known as a blackjack, slungshot, billy, sandclub, sandbag, bludgeon, metal knuckles, dagger, dirk, dangerous knife, stiletto, bomb or other high explosive," shall be punished, etc.

The state produced evidence from which the jury might reasonably infer that the shot gun was in the possession of the defendants. It tended to show that, when the police officers apprehended the defendants, ...