State v. Wines

• Decision Date: 30 January 1961
• Docket Number: No. A--73,A--73
• Citation: 65 N.J.Super. 262,167 A.2d 650
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Harry WINES, Defendant-Appellant, and Anthony Palumbo, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 262

65 N.J.Super. 262

167 A.2d 650

STATE of New Jersey, Plaintiff-Respondent, v. Harry WINES, Defendant-Appellant and Anthony Palumbo, Defendant-Appellant.

No. A--73.

Superior Court of New Jersey Appellate Division.

Argued Dec. 12, 1960.

Decided Jan. 30, 1961.

A. Donald McKenzie, Jr., Union, for appellant Harry Wines (McKenzie & Hehl, Union, attorneys).

Joseph Moritz, Jersey City, for appellant Anthony Palumbo.

Edward F. Hamill, Asst. Prosecutor, Jersey City, for respondent (Lawrence A. Whipple, Hudson County Prosecutor, Jersey City, attorney).

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Following the reversal of their previous convictions (State v. Wines, 47 N.J.Super. 235, 135 A.2d 543 (App.Div.1957) defendants were again convicted, and again they appeal.

They contend the verdict was against the weight of the evidence. No purpose would be served by recounting the details of the evidence. Suffice it to say that we have examined it carefully within the scope of our review, and find that the issues were those of fact and credibility, and that the verdict finds adequate support in the evidence.

The more serious questions arise out of the following facts.

When the indictment was handed up it charged, in the first count, that the defendants 'did forcibly take from the person of Herman Smith * * * $362 * * * by violence and putting the said Herman Smith in fear, the said Harry Wines and Anthony Palumbo then and there being armed with, and having in their possession, a certain firearm, contrary to the provisions of N.J.S. 2A:151--41 and 2A:141--1 * * *.' N.J.S. 2A:151--41, N.J.S.A. is the concealed weapon statute; N.J.S. 2A:141--1, N.J.S.A. the robbery statute. The statute that empowers the court to give an additional sentence for committing robbery while armed is N.J.S. 2A:151--5, N.J.S.A., but that number did not appear anywhere in the indictment. There was a second count with which we need not concern ourselves, because it was dismissed on the State's motion during the second trial.

In spite of the reference to N.J.S. 2A:151--41, N.J.S.A., the indictment did not contain words which charged the crime of carrying a concealed weapon. State v. Quinn, 108 N.J.L. 467, 158 A. 834 (Sup.Ct.1932). Nevertheless, the trial judge, in the first trial, treated it as if it did. He charged the jury:

'Count number one charges that on April 20, 1955, in the town of Guttenberg these two defendants did commit the crime of armed robbery against one Herman Smith, charging, as it says here in the formal words of the charging part, that these men 'in the County of Hudson aforesaid and within the jurisdiction of this Court, did forcibly take from the person of Herman Smith, cash, lawful money, in the amount of $362.00 by violence and putting the said Herman Smith in fear, the said Harry Wines and Anthony Palumbo then and there being armed with, and having in their possession, a certain firearm, contrary to the provisions' of the law.

'Now the crime of robbery is a felony, so if the facts satisfy you beyond a reasonable doubt * * * that one of the men had a gun and the other man participated, whether he had a gun or not they are both principals. So, in the first count the indictment charges them both with robbery while armed. It also charges them with violation of section 2A:151--4. That section of the statute makes it a misdemeanor to carry a concealed weapon. There is some proof that Wines did. Whether you accept that proof is your burden and you will have to do that according to the evidence and according to the rules of law which I will give you. But I wish to call your attention to the fact that the first count charges armed robbery against both of them. On that count you will find Wines guilty or not guilty and you will find Palumbo guilty or not guilty. You don't have to find both guilty or both not guilty. There are two men separately on trial before you and you must bring in a verdict against or for each of them. In the first count the charge is armed robbery against each of them and the charge of carrying concealed weapons against each of them, but I direct that you bring in no verdict against Palumbo for carrying a concealed weapon. By that I am not inferentially asking you to bring in a verdict against Wines for carrying a concealed weapon. That is for you to determine from all the proofs in the case.'

The jury thereafter returned its verdict as follows:

'* * * The Foreman: We, the jury, find the defendants, Harry Wines and Anthony Palumbo guilty of the charges made by the State.

'The Court: Now you say, Mr. Foreman, you find the defendants guilty of the charges made by the State.

'The Foreman: Yes, sir.

'The Court: You will recall when I was talking to you before you retired I stated that the first count of the indictment charged both defendants with armed robbery. Do you find both defendants guilty of armed robbery?

'The Foreman: Yes, sir.

'The Court: The first count also, by reference to the statute, charges them inferentially with carrying concealed weapons. I told you under the proofs I didn't see how you could possibly find Palumbo guilty of carrying a concealed weapon. That is what I told you but you still have a right to find him guilty.

'The Foreman: We find Harry Wines guilty of that charge, carrying a concealed weapon.

'The Court: How about Palumbo?

'The Foreman: No, he is not guilty of that charge.

'The Court: With respect to the second count, both defendants are charged with assault with intent to rob. What is your verdict on that?

'The Foreman: Both guilty.

'The Court: I understand you find both defendants, Harry Wines and Anthony Palumbo, guilty of armed robbery as charged in this indictment. I also understand you find Harry Wines guilty of carrying a concealed weapon as charged in this indictment; and I also understand you find Harry Wines and Anthony Palumbo both guilty of assault with intent to rob. Is that your verdict?

'The Foreman: Yes, sir.

'The Court: Is that your unanimous verdict?

'The Foreman: Yes.'

According to the Clerk's docket, the judge then sentenced Wines '(o)n 1st Count for a maximum term of Fifteen (15) Years and a minimum term of Ten (10) Years * * * On Carrying Concealed Weapon 1st Count for a Max term of three (3) Years and a Minimum term of One (1) Year concurrently with sentence imposed on 1st Count. * * *' On the second count (dismissed, as we have said, by the prosecutor during the second trial, pursuant to said reversal), the sentence was 5 to 7 years 'consecutively after sentence imposed on 1st Count. * * *' Palumbo received the same sentences, except, of course, upon the concealed weapon charge.

The reversal in 47 N.J.Super. 235, 135 A.2d 543, supra, was based upon error in the court's charge relating to alibi. It therefore vitiated the entire judgment of the first trial, and all of the sentences which resulted therefrom, even though the opinion made no mention of Wines's concealed weapon conviction.

On the morning of the retrial, the trial court granted the State's motion, over defendants' objection, to amend 'N.J.S. 2A:151--41' (concealed weapons) to 'N.J.S. 2A:151--5' (added penalty for robbery while armed). After the defendants were again convicted, upon the indictment as thus amended, each was sentenced 'on the First Count of the Indictment (Robbery 2A:141--1) for a minimum term of Ten (10) years and a maximum term of Fifteen (15) years, and he is sentenced on (Use of Firearms 2A:151--5) for a minimum term of Three (3) years and a maximum term of Five (5) years. These sentences to run consecutively with each other.'

Defendants contend that the court had no right to permit the amendment, because it substituted a different offense for the one which the trial court had said, in the first trial, was set forth in the indictment.

If we lay aside the trial court's misconstruction of the indictment and confine ourselves to its language, it is obvious that the Words of the indictment Described robbery (N.J.S. 2A:141--1, N.J.S.A.) while armed (N.J.S. 2A:151--5, N.J.S.A.), and that the reference to N.J.S. 2A:151--41, N.J.S.A. was erroneous. That error was a mere matter of form, and amendable. R.R. 3:4[167 A.2d 654] --3(a); State v. La Vera, 35 N.J.Super. 256, 113 A.2d 829 (App.Div.1955), certiorari denied 350 U.S. 853, 76 S.Ct. 95, 100 L.Ed. 758 (1955). Cf. State v. Tumbiolo, 28 N.J.Super. 231, 100 A.2d 496 (App.Div.1953), certification denied 14 N.J. 495, 103 A.2d 182 (1954), certiorari denied 347 U.S. 948, 74...