State v. Travers

• Decision Date: 19 October 1961
• Docket Number: No. A--123,A--123
• Citation: 174 A.2d 747,70 N.J.Super. 32
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Benjamin TRAVERS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 32

70 N.J.Super. 32

174 A.2d 747

STATE of New Jersey, Plaintiff-Respondent, v. Benjamin TRAVERS, Defendant-Appellant.

No. A--123.

Superior Court of New Jersey Appellate Division.

Argued Sept. 8, 1961.

Decided Oct. 19, 1961.

Richard M. Kohn, Trenton, for defendant-appellant.

Joseph P. Merlino, Legal Asst., Trenton, for plaintiff-respondent (Stanley E. Rutkowski, Mercer County Pros., Trenton, attorney).

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court was delivered by

LEWIS, J.A.D.

Defendant, Benjamin O. Travers, and William Reeves were tried together and convicted of armed robbery by the County Court of Mercer. Only Travers appeals; he was sentenced to State Prison for a term of 12 to 15 years for robbery and 3 to 5 years on the armed charge, the terms to run consecutively. He contends, through his assigned counsel, that the verdict was against the wright of the evidence, and the court erred in that: (1) it refused to charge the jury as to defendant's intention; (2) the jury was improperly charged respecting the use of the confession of his co-defendant Reeves; (3) photographic evidence was erroneously admitted; and (4) testimony was allowed concerning two unidentified photographs which the court implied in its charge might be considered by the jury.

In summary, the evidence reveals that the robbery took place at 5:30 on the evening of December 11, 1959 at the liquor store of one Thomas DeLellis, corner of Princeton and Fountain Avenues, Trenton, New Jersey. When Reeves walked into the store, brandishing a gun, he exclaimed, 'Just give me the money and nobody gets hurt.' Reeves was identified by DeLellis, who observed that the robber was a Negro, had a goatee, a mustache, and long sideburns, and was wearing a 'white or cream raincoat with a rain hat.' The night following the robbery, DeLellis noticed Reeves on the street, but was unable to make contact with the police in time for his apprehension. On New Year's Eve he again saw Reeves, and this time led the police to his whereabouts where he was arrested.

In a signed statement that Reeves gave to the police authorities, he detailed his part in the robbery, and implicated the appellant, alleging that Travers furnished the gun, accompanied him to the location of the liquor store and accepted part of the stolen money. Reeves knew Travers from school days and identified him from a police photograph. Both the confessional statement and the photograph were admitted into evidence but as to Reeves only.

Subsequently, Travers was arrested and indicted for armed robbery in violation of N.J.S. 2A:141--1, N.J.S.A. and N.J.S. 2A:151--5, N.J.S.A. At first, he denied any participation in the crime, but, later, he admitted his association with Reeves as an accomplice. Detective Francis X. Nagy, who was substantiated by Lieutenant Adolph G. Miller, testified:

'* * * He (Travers) told us that he did in fact supply the gun that was used by William Reeves in the commission of this crime and he did accompany him to Princeton Avenue at the time of the crime's commission and he did share in the proceeds of the crime.'

At the trial, however, appellant denied that he had made such admissions; and he categorically denied that he ever had a gun, gave a gun to Reeves, was in the vicinity of the holdup, or that he participated in any way in the crime. He did, however, admit under cross-examination that he had been previously convicted of a crime, and on this point the jury was properly instructed.

James Rivers was a witness for the prosecution. He lived at 30 Fountain Avenue, about '50 yards or more' from the liquor store. His brother lived in a building right behind the liquor store. Rivers stated that 'about 5:30' on the night of the crime, he was proceeding from his home toward the food center on Princeton Avenue with 'money in my pocket' and, as he neared the corner, he was accosted by a stranger whom he identified in open court as Travers, and that Travers had asked him, 'Do you have a cigarette(?).' He further testified that he observed 'one more guy was sitting on my brother's stoop,' and that, when he crossed the street to enter his brother's house, the fellow on the steps inquired of him: 'Do Jones or Johnson live in this building(?).' In court, Rivers identified this man as Reeves. The proffered explanation given by Rivers, under cross-examination, for his sudden decision to visit his brother was:

'Q. Something happened to you in your frame of mind and you walked across the street? A. Yes, because they looked suspicious to me at the time. If you were walking there, you would be suspicious.'

Rivers remained in his brother's house about five or ten minutes and when he left the two men had disappeared.

The corroborative testimony of James T. Woodward is telling. Woodward was with the Air Force, Military Police, at the McGuire Air Force Base; he lived at 53 Sweets Avenue, Trenton. On December 11, 1959 he left work at 4:20 P.M. and, on the way home, he discharged a passenger named Francisco Vasquez at Princeton and Fountain Avenues. The time of arrival at this destination was fixed at 'between 5:15 and 5:30.' When he stopped his car, the engine cut off; he had run out of gasoline. His companion had a spare can of fuel in the trunk of his automobile on the other side of the street, which he proceeded to transfer to the Woodward car. During the 10 or 15 minutes interval that Woodward was obliged to remain at this location, he observed two Negro men walking down Fountain Avenue 'from the front of the whiskey store toward the rear.' He further testified:

'And while I was unlocking the gas tank the two fellows come by and stopped right at the rear of the car, which we were at the rear, and in the whiskey store it's a sign about so big and so high (illustrating). The two fellows peeped over the sign, looking in at the fellow inside the whiskey store.'

Woodward said that he was suspicious and, after starting his vehicle, he proceeded to alarm the police and within 5 or 10 minutes he encountered a patrol car and directed it to the location of DeLellis' liquor store. The robbery had been completed when the police arrived. This time element synchronizes with the statement of DeLellis, who said that the police appeared immediately after the robbery--'as I was talking to the police department, the cruiser car was just pulling up.'

The testimony of Woodward evidenced utmost caution and frankness. His memory was clear and his factual narration was convincing as to what he did observe on the eventful evening of December 11. He hesitated, however, to 'pinpoint' identification of Reeves and Travers in open court as they were at that time dressed differently and clean-shaven. It is significant that his description of the outward appearances of the two strangers he saw at the site of the crime corresponded in substance to the description of the two men described and unequivocally identified by Rivers. Within minutes, there was an observation by Rivers and Woodward of two Negro men in the area of the liquor store, under circumstances that aroused suspicion. The consistency of their testimony lends weight to the verity of the testimony of Rivers, who, by reason of his face to face conversation with Travers (albeit only a crisp question, 'Do you have a cigarette', and answer, 'No'), was able to identify Travers before the jury, notwithstanding defendant's changed appearance. The fact that Woodward refrained from making a positive identification did not invalidate his testimony in this regard. A qualified or limited identification is a circumstance that the jury may take into account with the remaining evidence in determining whether or not there is sufficient proof to constitute a fact question resolvable by the jury. See State v. Cerce, 22 N.J. 236, 244, 125 A.2d 689 (1956); State v. Smith, 32 N.J. 501, 522, 161 A.2d 520 (1960), certiorari denied 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961); State v. Buffa, 51 N.J.Super. 218, 235, 143 A.2d 833 (App.Div.1958), affirmed 31 N.J. 378, 157 A.2d 694 (1960), certiorari denied 364 U.S. 916, 81 S.Ct. 279, 5 L.Ed.2d 228 (1960).

The State's case was not based solely upon circumstantial evidence. The admissions of Travers in response to the interrogations of the police officials, although subsequently denied by him, were tantamount to direct and positive evidence competent for the jury to consider and evaluate along with the issues of credibility. Apropos of the testimony of witnesses Miller and Nagy and the admissions made to them by the accused, we note the decision of our Supreme Court in State v. Kociolek, 23 N.J. 400, 421, 129 A.2d 417, 428 (1957), holding that the county judge erred in refusing to charge a request that the jury 'should receive, weigh and consider such evidence (out-of-court statements) with caution.' A cautionary instruction as to Travers' admissions was not included in the jury charge, and the record does not reveal that counsel requested such an admonition. We do not perceive that this omission, in view of the overall factual case made out by the prosecution, is 'plain error' under R.R. 1:5--1(a).

Circumstantial evidence may support a conviction. State v. Smith, supra. On a motion for acquittal the test is whether the proofs are such as would permit a jury to conclude that no reasonable hypothesis consistent with innocence may be drawn therefrom. See State v. Bulna, 46 N.J.Super. 313, 318, 134 A.2d 738 (App.Div.1957), affirmed on other grounds 27 N.J. 93, 141 A.2d 529 (1958). In a later case before the same court, State v. Dancyger, 29 N.J. 76, 84, 148 A.2d 155, 159 (1959), the evidence presented by the State was wholly circumstantial and it was there pointed out that such proofs may not only be sufficient but may also be 'more certain, satisfying and persuasive than direct evidence,' quoting language from State v. O'Connor, 134 N.J.L. 536, 539, 49 A.2d 45 (Sup.Ct.1946). In view of the...