State v. Jones, A--274

• Citation: 57 N.J.Super. 260,154 A.2d 640
• Decision Date: 02 October 1959
• Docket Number: No. A--274,A--274
• Parties: STATE of New Jersey, Respondent, v. Ivory JONES, Appellant.
• Court: New Jersey Superior Court – Appellate Division

Page 260

57 N.J.Super. 260

154 A.2d 640

STATE of New Jersey, Respondent, v. Ivory JONES, Appellant.

No. A--274.

Superior Court of New Jersey

Appellate Division.

Submitted Sept. 28, 1959.

Decided Oct. 2, 1959.

Vincent P. Keuper, Monmouth County Pros., Asbury Park, for respondent (Solomon Lautman, First Asst. Pros., Asbury Park, of counsel and on the brief).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

On January 2, 1957 the Monmouth County grand jury returned three indictments respectively charging (1) appellant Jones, Eddie Gainor, Robert Majors and Dorothy Maddox with robbery by forcibly taking $169 from John Brakefield on November 1, 1956; (2) Jones, Gainer and Majors with robbery by forcibly taking $85 from Everett Kennedy on October 31, 1956; and (3) Jones, Gainor and Charles McKay (in four counts) with (a) armed robbery of $500 from Laura Letson on October 23, 1956; (b) robbing her of that amount; nc) assaulting her with intent to rob; and (d) atrocious assault and battery upon her.

The indictments were tried together, Jones being represented by court-assigned counsel. The jury found Jones guilty on the first indictment, not guilty on the second, and guilty under only the third and fourth counts of the third indictment. Gainor was found guilty on the first two indictments and not guilty on the third. The charges against Majors were dismissed. We do not know what disposition was made of those against Maddox or McKay.

Jones was sentenced to State Prison on February 21, 1957 to serve a term of 12--15 years on the first indictment and 10--12 years on the third, the sentences to run consecutively.

On April 8, 1957 he filed a notice of appeal with the Monmouth County Clerk, who at once mailed a conformed copy to the Superior Court Clerk. The latter did not docket and file the notice because of non-payment of the requisite fee. On May 1, 1957 Jones wrote the County Court judge who had presided at his trial, advising that he was not going to pursue his appeal but would seek a further hearing before him. He said he had secured the services of the attorney who represented him at the trial. Jones then wrote the Superior Court Clerk on May 3, 1957, stating that he desired to discontinue his appeal (never perfected), and on May 29 moved for a new trial. The county judge conducted a hearing on July 30 and denied the application. Two days later Jones filed a notice of appeal from the refusal to grant him a new trial. Leave to appeal as an indigent and application for assignment of counsel were denied August 19, 1957. Nothing further happened until September 10, 1958, more than a year later, when Jones wrote the deputy attorney general about securing assigned counsel and a transcript. The matter eventually came to the attention of the Supreme Court which directed that Jones be permitted to file a notice of appeal as an indigent. He did so. His appeal is addressed solely to the County Court judgment of conviction on February 21, 1957.

Without question, the appeal is entirely out of time and ought not to be considered. However, we have obtained a copy of the transcript of the trial and will dispose of the matter on the merits in order to bring it to a finality.

Defendant first argues that the State failed to make out a Prima facie case of guilt. A reading of the entire record shows how baseless the contention is. The prosecution clearly established a strong Prima facie case, including the positive identification of Jones as the leader of the holdup party on each of the two occasions for which he was convicted--the Brakefield robbery as well as the atrocious assault and battery upon Mrs. Letson and the assault with intent to rob her. The verdict comported with the proofs. The jury discharged its duty with unusual care, finding Jones not guilty whenever there was doubt, and guilty where the evidence clearly pointed to his having committed the crimes charged. It did the same in the case of Gainor.

Defendant next maintains that the trial judge erred in failing to instruct the jury regarding the distinction it should draw between convictions for disorderly persons offenses and those imposed for other offenses, when considering Jones' criminal past--and this despite a request so to charge. The claim is that R.R. 3:7--7 was violated. It was not. The rule allows parties to submit written requests to charge at the close of the evidence. Here the request in question was orally and informally made during the course of the trial; there was none in writing after the defense had rested. Even were the request properly made, the trial judge was not obliged to deliver the charge in the exact language requested.

Defendant has misquoted the charge in his brief. He asserts that the trial judge instructed the jury that All of defendant's criminal record had been allowed in evidence for the purpose of testing credibility. The transcript is to the contrary. In the course of the trial defense counsel, and then the prosecutor, questioned Jones about his convictions of crimes committed in this State and elsewhere. The judge was careful to limit the prosecutor's cross-examination to convictions involving offenses of a more serious nature; there was no inquiry into disorderly persons acts. Cf. State v. Block, 119 N.J.L. 277, 282, 196 A. 225 (Sup.Ct.1938). An FBI report was allowed in evidence, after defense counsel had examined it and said he had no objection to its admission. And when the time came to charge the jury the judge said:

'There has been a great deal of discussion here with respect to the criminal record of the defendant Ivory Jones, and it was at the defendant's insistence that said record is in evidence and may be taken with you to the jury room. I instruct you now that regardless of what may be on said F.B.I. investigation, the only thing that you are to concern yourselves with and consider are proper convictions of misdemeanors, and I charge you that the criminal record of the defendant Jones as to prior conviction was allowed to be introduced by the court for the purpose of testing the defendant's credibility, and I charge you that the fact, however, that he was convicted at former times of other offenses is no proof that he is guilty of the offense or offenses with which he is now charged. Such evidence of proper former convictions was admitted for the purpose of aiding you in determining the weigh and credit to be given to this defendant's testimony. The law assumes that a witness who has been convicted of a crime is not as worthy of belief as a witness who has never been convicted of crime, and the fact of conviction is one that you may take into consideration in weighing his testimony.' (Italics ours.)

This charge does not, as defendant claims, run counter to what was said by our Supreme Court in State v. Cooper, 10 N.J. 532, 555--556, 92 A.2d 786 (1952). The State has the unquestioned right to prove prior convictions of misdemeanors and high misdemeanors to affect a defendant's credibility, and may inquire of him to that end. N.J.S. 2A:81--12, N.J.S.A.; State v. Cooper.

Finally, defendant contends he was denied his constitutional right to compulsory process. N.J.Const.1947, Art. I, par. 10. He claims that the court failed to secure two witnesses for...