State v. Letter

• Decision Date: 16 April 1926
• Docket Number: No. 4.,4.
• Citation: 133 A. 46
• Parties: STATE v. LETTER et al.
• Court: New Jersey Supreme Court

133 A. 46

STATE

v. LETTER et al.

No. 4.

Supreme Court of New Jersey.

April 16, 1926.

Error to Court of Quarter Sessions, Atlantic County.

John Letter and Anthony Di Canio were convicted of robbery, and they bring error under Criminal Plocedure Act, §§ 136, 137. Affirmed as to defendant Anthony Di Canio, and as to defendant John Letter reversed, and new trial ordered.

Argued before GUMMERE, C. J., and KALISCH and CAMPBELL, JJ.

John C. Reed, of Atlantic City, for plaintiffs in error.

Louis A. Repetto, of Atlantic City, for the State.

PER CURIAM. The defendants below were convicted of robbery in Atlantic county quarter session. The case is here before us on writ of error under the 136th and 137th section of the Criminal Procedure Act (Comp. St. N. J. 1910, p. 1863). The first cause for reversal relied on in the brief filed on behalf of the plaintiffs in error is: Refusal of the trial court to allow defendant to examine jurors upon their voir dire before being sworn as jurors. There is no substance in this.

According to the record the jurors were in the box, and counsel for defendants stated to the court:

"I would like to challenge for cause if I may. Have any of you ladies or gentlemen read anything about this case, or about these young men, and if so, are your minds open and not susceptible of being prejudiced of what you have read?"

The prosecutor objected, and the court sustained the objection. This was right. In the first place there was no challenge for cause, and, moreover, such a challenge cannot be properly made to the panel in the box. A challenge for cause must be made when the juror presents himself to be sworn and before he is sworn, and such challenge must state the grounds upon which it is based.

The second ground for reversal of the judgment is that the trial judge, over objection of defendants' counsel, permitted the witness Ferreti, captain of the detective department, to testify to a conversation had by him with Di Canio at the time of his arrest, and in the absence of Letter, in which conversation Di Canio said that Letter was his partner in the holdup and was engaged with him in the robbery. This testimony was hearsay, prejudicial, and harmful to Letter, and, as was said by Chief Justice Gummore, in State v. Niesbbalski, 83 A. 179, 82 N. J. Law, 177, where the circumstances of the case are somewhat analogous to the facts under consideration, constituted reversible error. In the present case, the defendant affected by this error was Letter.

The third point relied on for reversal is that the trial judge erred in his instructions to the jury as to what constituted robbery. The court charged the jury:

"That robbery is stealing property with violence from the person or personal custody of another person. It is necessary in order to constitute the crime that the goods shall be on the person of the owner or owner's agent, or shall be in his presence and in his custody. The distinction between larceny and robbery is this: In larceny the property is taken privately and without knowledge of the owner; in robbery the property is taken forcibly with the knowledge of" the owner, but against his will."

Both definitions are incorrect. Our statute declares that, if any person shall forcibly take from the person of another money or personal goods or chattels by violence or putting in fear, this constitutes...