State v. Scala

• Decision Date: 24 January 1956
• Docket Number: No. A--452,A--452
• Citation: State v. Scala, 120 A.2d 128, 38 N.J.Super. 568 (N.J. Super. App. Div. 1956)
• Parties: STATE of New Jersey, plaintiff-respondent, v. Erasmus J. SCALA, defendant-appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 568

38 N.J.Super. 568

120 A.2d 128

STATE of New Jersey, plaintiff-respondent, v.Erasmus J. SCALA, defendant-appellant.

No. A--452.

Superior Court of New Jersey Appellate Division.

Argued Jan. 9, 1956.

Decided Jan. 24, 1956.

Morris Spritzer, New Brunswick, for appellant.

John B. Molineux, Asst. County Pros., New Brunswick, for respondent(Alex Eber, Middlesex County Pros., New Brunswick, attorney)

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

The defendant, Scala, on whose behalf the present appeal is prosecuted, was placed on trial in response to an indictment presented by the grand jury of Middlesex County alleging that on May 18, 1953he and one Pasquale Schibilia conspired to steal and permanently appropriate the chattels of Permacel Tape Corporation in the Township of North Brunswick, in pursuance of which unlawful confederation Schibilia between May 18, 1953 and March 16, 1954 made quantities of the chattels at the plant of the Permacel Tape Corporation available to Scala, who removed and sold them.

The defendant Schibilia had pleaded guilty to the indictment and testified in support of the charge against Scala.The latter refrained from testifying in his own defense.Indeed, no testimony whatever was introduced on his behalf.A verdict of guilty was returned by the jury.

Essentially the asserted criticism of the conviction inheres in the denial of the defendant's motion for a mistrial.A concise explanation of the testimony and of the presentation of certain exhibits will reveal the reason that occasioned the request for the mistrial.

The Permacel Tape Corporation is engaged in the manufacture of rolls of sensitive adhesive tape of various designs and sizes.Pasquale Schibilia was a janitor at the manufacturing plant.His regular period of employment was from midnight to 8 a.m.In that capacity he worked alone, and his duty was to remove litter and worthless residue from the plant and deposit it in a yard behind the building.At that time the yard was not illuminated at night.Customarily a motor truck and trailer of the Permacel company used during the daytime to transport material from the warehouse to the manufacturing department of the plant was left in the yard during the night.

The defendant Scala had been previously employed at the plant and had thus acquired not only a personal acquaintance with Schibilia but also a personal knowledge of the premises and of the operations and practices there pursued.With the opportunities so auspicious the two, both then living in the same house, developed the compact that Schibilia on mutually arranged occasions should stow a quantity of rolls of tape in the company's trailer conveniently parked in the darkness of the yard, and that Scala would during the night furtively abduct them from the trailer, thereafter sell them and reward Schibilia for his cooperating participation at the rate of ten cents a roll.There were 25 or more pillages usually made at 4 a.m. in furtherance of the object of the conspiracy.Scala 'got lots of tape there,' said Schibilia.

The management of the company discovered an unaccountable declension in its inventories and inaugurated a police investigation.Schibilia had requested his share of the proceeds of the sales, and Scala gave him a check for $175, but alas the check 'bounced,' a revolution in the confederacy thereupon ensued and Schibilia vociferated.

Able counsel advocated on behalf of the defendant that the rolls pilfered constituted worthless and useless material discarded by the company for destruction.Counsel's alluring interpretation of the activity became frail when it encountered the State's proof that the market price of a perfect roll was 75 cents and the defendant vended those he had so obtained at 50 cents a roll, and moreover that he had received from the sales which the State had identified a total sum of $1,322.The testimony of the witness Julius Silasi concerning the defendant's possession of the rolls of tape and his employment by the defendant to deliver them to the purchasers and collect the payments from the buyer materially fortified the strength of the State's case.

It seems unnecessary specifically to mention other persuasive ligaments of the incriminatory evidence.The purpose of this introductory portion of our opinion is to express the premise that there was an abundance of uncontroverted competent and legally admissible evidence to justify the jury in resolving the guilt of the defendant beyond a reasonable doubt.

However, the remarks of Mr. Justice Jacobs in State v. Orecchio, 16 N.J. 125, 129, 106 A.2d 541, 542(1954) are germane to our present considerations:

'The sound administration of criminal justice in our democracy requires that both the end and the means be just.The accused, no matter how abhorrent the offense charged nor how seemingly evident the guilt, is entitled to a fair trial surrounded by the substantive and procedural safeguards which have stood for centuries as bulwarks of liberty in English speaking countries.This, of course, does not mean that the incidental legal errors, which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair, may be invoked to upset an otherwise valid conviction; under these circumstances it would be grossly unjust to the State and its people to grant a new trial, and in recent days this court has not hesitated to dany such relief to the defendant.'

We come now to the pivotal question which implicates basically the propriety of the denial of a mistrial by the trial judge.At the inception of the trial, members of the State Police placed on the table in view of the jury three packages containing rolls of tape which had been confiscated and stored by them as exhibits in the case.There was proof that the rolls were the manufactured products of the Permacel company.Each package was marked for identification.Exhibit S--1 contained rolls of 'old tape' manufactured in 1953 and early in 1954 which 'had taken an awful beating in the interim.'The other two packages, exhibits S-2 and S-3, held rolls of tape which, although manufactured in 1953, were nevertheless orderly packed and recognized to be 'good tape.'

Counsel for the defendant arose and said:

'If Your Honor please, I have withheld objection to the line of questioning on the assumption that it is the intention of the prosecution to connect these exhibits with the defendant.I would like to be permitted to inquire if it is that intention, so that I either can frame, or withhold an objection.'

The assistant prosecutor replied:

'Your Honor, of course it is the intention and expectation of the State to definitely tie up all of these exhibits with the defendant, Scala.'

Concluding the colloquy, counsel for the defendant stated:

'I will then reserve the right to move to strike the testimony in the event of the failure of the prosecutor to make such connection.'

At another stage of the trial while a witness was being interrogated concerning the exhibits, counsel for the defendant iterated his objection and the assistant prosecutor again announced:

'If your Honor please, of course we are going to tie this defendant up.I can't put all the witnesses on at once.'

At the conclusion of the introduction of the evidence, and in the absence of the jury from the court room, the assistant prosecutor was obliged to acknowledge his inability to associate exhibits S--2 and S--3 with the defendant as he had previously represented.He explained that in making his representation he had relied on the information imparted by the office file only to discover that now the memory of the witness from whom the requisite testimony was to be elicited had weakened.Counsel for the defendant thereupon addressed to the court a motion for the declaration of a mistrial.

In denying the mistrial, the court stated:

'There is no question, of course, in the Court's mind, but that the State felt that the exhibits offered, S 2 and S 3, could be tied up.They find now that this cannot be done.S 1, however, does remain, of course, properly tied up with the defendant.

'The statement made by counsel for the defendant, of course, is likewise so, in that he reserved the right to exclude S 1, S 2 and S, 3, if they were not connected.S 2 and S 3 evidently cannot be connected.

'While it is true that the two larger cartons containing tape were before the jury, the Court feels that the defendant would not be prejudiced, if they are presently removed from the court room, before the jury returns, and upon a proper instruction from the Court directing that they leave from their deliberations entirely anything in connection with S 2 and S 3, and base it solely on S, 1, would, as a matter of fact, make the question--narrow the scope of the fact for the consideration of the jury.And I feel that a proper instruction from the Court to the jury, explaining the situation, and directing that the testimony in connection therewith be expunged, and directing that they give no consideration to that, would clarify the situation and would not be prejudicial to the defendant.'

A subsequent motion to strike the testimony of all of the witnesses relative to exhibits S-2 and S-3 was granted.

We peruse the record to ascertain the subsequent eventualities at the trial which are of definite pertinency to the consequential effect of the denial of a mistrial, and we note that counsel for the defendant in his summation to the jury stated:

'* * * Remaining on this...