State v. Rosenberg

• Decision Date: 19 July 1922
• Docket Number: No. 11.,11.
• Citation: 118 A. 207
• Parties: STATE v. ROSENBERG.
• Court: New Jersey Supreme Court

118 A. 207

STATE

v. ROSENBERG.

No. 11.

Supreme Court of New Jersey.

July 19, 1922.

Error to Court of Quarter Sessions, Monmouth County.

Jacob Rosenberg was convicted of burglary, grand larceny, and receiving stolen goods, and he brings error. Reversed.

Argued November term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Andrew J. C. Stokes, of Freehold, for plaintiff in error.

Charles F. Sexton, of Long Branch, for the State.

KALISCH, J. The plaintiff in error, as disclosed by the record brought here, was convicted in the Monmouth county quarter sessions of "breaking and entering, with intent, etc., as he stands charged in the indictment," on an indictment which contained five counts, the first of which charged a breaking and entering a dwelling house, by night, with intent to steal; the second, a breaking and entering a dwelling house, by day, with intent to steal; the third, entering without breaking a dwelling house, with intent to steal; the fourth, grand larceny; and the fifth, receiving stolen goods, knowing them to have been stolen.

Before entering upon a consideration of the points raised and argued in the brief for the plaintiff in error, it will not be out of place to point out here that the verdict, as it appears from the record, is uncertain in its finding. As already observed, there were two counts in the indictment which charged breaking and entering a dwelling house, with intent to steal-one, by night, which was burglary; the other, by day, which was not. The verdict, therefore, which was "guilty of breaking and entering with intent, etc., as he stands charged in the indictment," leaves it uncertain upon which count of the indictment the jury based its verdict. While it is true that no point is made of this as a ground for reversal, nevertheless we think the matter is of sufficient importance to call attention to it, in order to prevent laxity in receiving and recording verdicts. Care should be taken that the verdict of the jury shall be responsive to the charge in the indictment of which the defendant is found guilty.

As we are only concerned with reviewing a record upon assignments of errors, or specified causes for reversal, duly assigned, presented, and argued, and since we have reached a result upon grounds properly presented and argued which necessitates awarding a new trial, we take occasion to point out that the first count of the indictment charges the common-law crime of burglary, and that under the decision of this court in Conners v. State, 45 N. J. Law, 346, the plaintiff in error was entitled to a special panel of jurors and to 20 challenges, as provided by statute, which statutory right was denied him by the court below. Although this action of the trial court was assigned as error, it was not relied on and argued in the brief of counsel of plaintiff in error, and hence the assignment will be considered to have been abandoned.

The first ground for reversal urged by counsel of plaintiff in error is that, against his objection, the trial judge improperly permitted the state to introduce testimony tending to establish that the plaintiff in error committed a crime other than that charged against him in the indictment. The crime of which the plaintiff in error was indicted, according to one Lerner, who was jointly indicted with the plaintiff in error, and who testified as a witness for the state, a severance having been granted before the...