State v. Simon

• Decision Date: 13 June 1904
• Citation: 58 A. 107,71 N.J.L. 142
• Parties: STATE v. SIMON. SAME v. KREYER.
• Court: New Jersey Supreme Court

58 A. 107

71 N.J.L. 142

STATE

v. SIMON.

SAME

v. KREYER.

Supreme Court of New Jersey.

June 13, 1904.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Passaic County.

Jacob L. Simon and Frederick L. Kreyer were convicted of receiving stolen goods, and bring error. Affirmed.

Argued June term, 1903, before GUMMERE, C. J., and DIXON, PITNEY, and HENDRICKSON, JJ.

Z. M. Ward. Vivian M. Lewis, and John M. Ward, for plaintiffs in error.

Eugene Emley, for the State.

HENDRICKSON, J. The defendants were convicted in the Passaic quarter sessions of the crime of unlawfully receiving stolen goods, knowing them to have been stolen, and they bring error. They were indicted separately, but the offense charged grew out of a single transaction, and the two indictments by consent were tried together. The entire record has been brought up, pursuant to section 136 of the criminal procedure act (P. L. 1898, p. 915).

A brief statement of the facts may be desirable before discussing the exceptions. The silk mill of J. B. Ryer, Son & Co., of the city of Paterson, was broken and entered on May 23, 1902, and there were stolen therefrom silk and cotton goods of the proprietors, valued at $300. The evidence upon the trial tended to prove that three individuals, Wilson, Kelly, and Jackson, were implicated in the theft. It showed that two days before this the parties named took possession of a barn in the suburbs of the city, rented by them a few days before for one month. They came there with a horse and wagon the night of the burglary about 9:30 o'clock. Later they went away, returning between 2 and 3 o'clock of the following morning with a load of goods. These were carried into the barn, which stood in the rear of the house occupied by a lady from whom they had rented it. The same morning, about 9 o'clock, they drove away, and returned later with three boxes, and carried them into the barn. The day after this, which was Sunday, the defendants, Simon and Kreyer, came to the barn, and were there in company with Wilson and Jackson. Two women who occupied the house testified that the defendants remained in the barn with the others about two hours that Sunday afternoon, and that during the time they heard the movement of boxes and the noise of hammering. On the Monday morning following, Wilson, Kelly, and Jackson were heard at the barn hammering and nailing, and soon after this they loaded two boxes containing the goods, and carried them to Lyndhurst, a station of the Delaware, Lackawanna & Western Railroad outside the city, and there one of the party shipped the boxes by express to one Levy at Stanhope, N. J. The boxes were overtaken and recovered by detectives at Newark, N. J., before their delivery to Levy.

The first error alleged arises upon the admission of the contents of a paper which was not produced, and the absence of which was not accounted for. The lady of the house was permitted to testify, over objection, that the next morning after the burglary she found a note attached to the key hanging on her door, requesting the inmates to feed and water the horse. It is a sufficient answer to this allegation of error to say that, if the admission was error at all, it was in no wise injurious to the defendants. It was the proof of a circumstance connected with the res gestæ, which tended alone to prove that the parties who occupied the stable were guilty of the theft. This was a proper element of proof at the trial, but, aside from this circumstance, the evidence clearly established the larceny, and there was no attempt to disprove it.

The evidence had no tendency to incriminate the defendants who were on trial for the offense of receiving only. A plaintiff in error cannot rely upon an erroneous ruling which does him no injury for a reversal of the judgment. Freeman v. Bartlett, 47 N. J. Law, 33; Humphries v. Woodstown, 48 N. J. Law, 588, 7 Atl. 301; N. J. Traction Co. v. Brabban, 57 N. J. Law, 691, 32 Atl. 217. Where it clearly appears that testimony which was illegally admitted on the trial of a criminal cause could not have injuriously affected the defendant, the admission of such illegal testimony does not constitute a ground for reversal. Genz v. State, 59 N. J. Law, 488, 37 Atl. 69, 59 Am. St. Rep. 619; Bodee v. State, 57 N. J. Law, 140, 30 Atl. 681.

Nor was it error to permit evidence to be given as to the conduct of Jackson at the barn the day before the defendants were there. This evidence was offered in support of the charge that the goods were stolen, and was relevant and lawful for that purpose.

Error is also assigned upon the admission of evidence that Jackson and Wilson were seen, about four days after the burglary, going into the place of business of the defendant Kreyer, where they remained three-quarters of an hour. The indictments against Simon and Kreyer were tried together, and this evidence was, we think, admissible as showing the probable relations of the defendant Kreyer with the perpetrators of the burglary, and as part of the res gestæ. 24 Am. & Eng. Ency. of Law (2d Ed.) 662.

At the close of the state's case motion was made to strike out the first count of the indictment, which was for larceny, the second count being for the offense of unlawfully receiving stolen goods. This was refused, and the refusal is assigned for error. The motion was irregular, and was properly refused. The appropriate motion would have been to have the judge direct the jury to acquit on the first count for want of...