State v. DiRienzoState v. DiRienzo
The opinion of the court was delivered by
Thе defendant Joseph DiRienzo was convicted by a jury in the Essex County Court under two indictments consolidated for trial charging him with illegally receiving stolen goods. N. J. S. 2A :139—1. He was sentenced to two terms of from three to five years, to be served consecutively. He appealed, and before argument in the Appellate Division we certified the matter on our own motion.
At the trial, the evidence introduced by the State showed the following: On Tuesday, July 25, 1967, two apartments in the same building in Chatham, New Jersey were broken into, and among the items taken were a gold wrist watch belonging to Mrs. Charles Tiley and a rare coin collection belonging to Mr. Herbert Reese. The following Sunday
On the following day, armed with a second search warrant, the police found in the defendant’s apartment a bag with the inscription, Bank of Lebanon, Pennsylvania, a Seagram’s Crown Eoyal bag, and a brown envelope with Mr. Tiley’s initials on it, all of which belonged to Mr. and Mrs. Tiley. The brown envelope was found on the dresser; the other items were in a cardboard box among some clothing.
On the defendant’s behalf, Fichólas Melillo testified that the defendant allowed him to stay at the apartment on the night of Friday, July 28. .Melillo said that the next day in Newark he bought a bag with the stolen items in it from a drug addict for $35.00. He testified that he returned to defendant’s apartment with the bag, was let in by the superintendent, and placed the watch on the dresser and the rest of the things in a box. The superintendent testified that he had let Melillo into the apartment on that Saturday on the defendant’s prior instructions. He did not notice whether Melillo was carrying anything when he entered the apartment.
Mrs. DiEienzo, defendant’s wife, testified that on Friday, July 28, she and her husband went for a long automobile ride and stayed in a motel overnight in the Dеlaware Water Gap area. She said they returned to the apartment on Saturday about 10 :00 p. M.; that Melillo came to the door of the apartment after she had gone to bed, and told her husband that he had left some things there and he would pick them
In his charge, the trial judge instructed the jury that the State bore the burden of proving beyond a reasonable doubt that the goods were received by defеndant, that they had been stolen, and that the defendant at the time he received them knew the goods had been stolen. He then read, nearly verbatim, the Receiving Stolen Property statute which is reproduced in the margin.
1
In explaining the effect of the statute, the judge said: “The statute in the respect that I have just alluded to merely authorizes you to convict under
I
Defendant contends that the State failed to prove possession of the goods, an essential element of the crime, properly defined by the trial judge in his charge as “intentional control and dominion” over the goods. See
State v. Lobato,
7
N. J.
137, 148-149 (1951). This is to be distinguished from the State’s burden of proving guilty knowledge,
i. e.,
that the defendant possessed the goods knowing them to have been
In the present case, when the police arrived at the defendant’s apartment, Mrs. DiRienzo was wearing the stolen wrist watch, and some of the stolen coins were in defendant’s dresser. This would certainly support a jury finding that the defendant had intentional control and dominion over the goods. See State v. Bozeyowski, 77 N. J. Super. 49, 58 (App. Div. 1962), certiorari denied, 374 U. S. 851, 83 S. Ct. 1916, 10 L. Ed. 2d 1071 (1963).
II
Defendant has launched a broad-based attack on the constitutionality of N. J. S. 2A :139-1. He contends that in authorizing a jury to infer guilty knowledge from the mere fact of possession of stolen goods, the statute contravenes due process of law and violates the fifth amendment’s protection against compulsory self-incrimination. 3 The constitutional argument breaks down into four related parts.
A. The first argument is based on the United States Supreme Court case of
Tot v. United States,
319
U. S.
463, 63
S. Ct.
1241, 87
L. Ed. 1519
(1943). In
Tot,
the Court held unconstitutional a statutory presumption that a gun in the possession of a defendant who had a prior record of a crime of violence, had been illegally received by him in interstate commerce, and that such receipt occurred аfter July 30, 1938, the effective date of the statute. In holding that there was no rational connection between possession of a gun by a defendant with a prior criminal record, and the
“Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts. * * * It is not too much to say that the presumptions created by the law are violent, and inconsistent with any argument drawn from experience.” 319 U. S. at 467-468, 63 S. Ct. at 1245, 87 L. Ed. at 1524-1525.
The Court recognized that there was no reasonable ground for the presumption that the gun was received in interstate rather than intrastate commerce, or that its acquisition occurred after the effective date of the statute. 319 U. S. at 468, 63 S. Ct. 1241, 87 L. Ed. at 1525.
The Court in Tot cited with approval a number of cases which sustained statutory presumptions which accorded with common experience, e. g., Hawes v. Georgia, 258 U. S. 1, 42 S. Ct. 204, 66 L. Ed. 431 (1921) (fact of still on defendant’s property provided prima facie evidence of defendant’s knowledge of its existence); Yee Hem v. United States, 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. 904 (1925) (possession of opium gave rise to presumption that defendant knew it had been illegally imported)
The “rational connection” requirement set forth in
Tot
is illuminated by the two Supreme Court cases of
United States v. Gainey,
380
U. S.
63, 85
S. Ct.
754, 13
L. Ed. 2d
658 (1965) and
United States v. Romano,
382
U. S.
136, 86
S. Ct.
279, 15
L. Ed. 2d
(1965), both involving prosecutions of defendants arrested at the sites of illegal stills under the federal statute requiring the registration of alcohol-distilling apparatus. In
Gainey,
the Court upheld the constitutionality of
In holding that there was a rational connection in common experience between the fact proved, presence at the still, and the ultimate fact presumed, participating in the business, the Court noted:
“The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.”
In
Romano, supra,
the defendant who was apprehended at the site of an illegal still was prosecuted under
“Presence tells us only that the defendant was there and very likely played a part in the illicit scheme. But presence tells us nothing about what the defendant’s specific function was and carries no legitimate, rational or reasonable inference that he was engaged in one of the specialized functions connected with possession, rather than in one of the supply, delivery, or operational activities having nothing to do with possession.” Id.
Thus in Gainey, the inference of participating in the operation of an illegal still from defendant’s presence at the site was held to accord with cоmmon experience. Persons who are present at such a site are more than likely engaged in some activity related to the operation of the still. A legislature could constitutionally recognize that the fact of defendant’s presence ordinarily has probative worth in the determination of guilt. In Romano, an inference of specific acts of possession and control from mere presence was held to lack an adequate foundation in common experience. It was at least equally likely that the defendant was engaged in some other aspect of the still’s operation.
Similarly, in the recent case of United States v. Adams, 293 F. Supp. 776 (S. D. N. Y. 1968), distinguishing Yee Hem, supra, an inference that a defendant possessing marijuana knew it to be illegally imported was held to be arbitrarjq on the ground that it was common experience that much (or most) marijuana was homegrown, and thus it was at least equally likely that the defendant would have no knowledge of illegal importation.
With regard to the present ease, we cannot say that it is contrary to common experience to recognize, as the Legislature recognized, that the unexplained possession of stolen goods within a limited time from their theft more than likely carries with it the knowledge that the goods were stolen. Stolen goods from two thefts were found in DiRienzo’s apartment five days after they had been stolen. In light of all the facts and circumstances in this case, the jury could properly accord the defendant’s recent possession its natural probative worth in their determination of guilty knowledge. Such an inference is not strained or аrbitrary and meets the rational connection test as set forth in Tot.
Jt has long been held in the absence of a statutory provision such as ours that possession of recently stolen property permits an inference that the possessor knew that the property had been stolen, unless the possession is satisfactorily accounted for. Aron v. United States, 382 F. 2d 965 (8th Cir. 1967); United States v. Lefkowitz, 284 F. 2d 310 (2d Cir. 1960); Pearson v. United States, 192 F. 2d 681 (6th Cir. 1951); see Wilson v. United States, 162 U. S. 613, 16 S. Ct. 895, 40 L. Ed. 1090 (1896); State v. Dancyger, 29 N. J. 76, certiorari denied, 360 U. S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255 (1959); Commonwealth v. Wilbur, 353 Mass. 376, 231 N. E. 2d 919 (1967), certiorari denied, 390 U. S. 1010, 88 S. Ct. 1260, 20 L. Ed. 2d 161 (1968); Anglin v. State, 244 Md. 652, 224 A. 2d 668 (1966). Use of the inference is a factually sound and necessary evidentiary rule. In order to prove a state of mind, the defendant’s thought processes cannot be laid bare; inevitably the jury will have to glean conclusions' from the surrounding circumstances. Without the inference it would be difficult, if not impossible, to convict knowing possessors or fences of stolen goods absent an admission of guilty knowledge, an event not likely to occur.
To put the entire controversy surrounding the inference in its proper context, it must be remembered that all of evidence is a process of inferring one thing from another, circumscribed only by the outer limits of relevance or prejudiciality. “Evidence is always a relative term; it signifiеs a relation between two facts, the
‘factum
probandum/ or proposition to be established, and the
‘factum probans’,
or material evi
N. J. S. 2A :139-1 has been upheld against constitutional attack by the courts of this state on several occasions. State v. Todaro, 131 N. J. L. 430 (E. & A. 1944), appeal dismissed, 323 U. S. 667, 65 S. Ct. 73, 89 L. Ed. 542 (1944); State v. Lisena, 131 N. J. L. 39 (E. & A. 1943); State v. Giordano, 121 N. J. L. 469 (Sup. Ct. 1939); Stale v. Laster, 69 N. J. Super. 504 (App. Div. 1961). The defendant’s appeal to the United States Supreme Court in Todaro, supra, was dismissed for lack of a substantial federal question, the only cases referred to by the Court being Tot and Wilson, supra.
A recent decision of the Supreme Court of Fevada, however, applying the rational connection test set forth in Tot, has. held a statute similar to ours unconstitutionally arbitrary. Carter v. State, 415 P. 2d 325 (Nev. 1966). 4 In Carter, the court held that “[t] hough possession is relevant and admissible evidence, it does not necessarily point to guilt. * * * Clearly, the statutory presumption of guilt frоm possession is arbitrary and cannot satisfy due process requirements, nor may it be said, in these circumstances, that the presumption meets the burden cast upon the state to prove the defendant’s guilt beyond a reasonable doubt.” Id. at 327; cf. Payne v. State, 435 P. 2d 424 (Okl. Cr. 1968).
We cannot agree with the court in
Carter,
interpreting
Tot,
that for an inference not to be arbitrary it must
necessarily
point to guilt. Indeed, as we quoted above, the United
The
Carter
court apparently believed that use of the inference would constitute a lowering of the State’s burden of persuasiоn in violation of due process. The defendant’s guilty knowledge is an element of the crime in the present case; thus it must be proved by the State beyond a reasonable doubt. Since we have held that the inference of guilty knowledge is sufficient if it more likely than not comports with common experience, does this reduce the burden of persuasion below a “reasonable doubt” standard? The crux of the matter is that it would, only if the jury were
compelled
to draw the inference and convict on the basis of possession alone; that is, if the burden of proof of guilty knowledge were taken from the State. See
United States v. Allegrucci,
258
F. 2d
70
(3d Cir.
1958);
Balman v. United States,
94
F. 2d
197
(8th Cir.
1938). But the inference is permissive only. The jury is free to accept or reject the inference, since according to the statute, possession of stolen goods merely “аuthorizes” conviction. The statute recognizes only an inference of “probable reasoning, as to which the court may lay down logical tests for the guidance of the jury, but can impose no positive binding rule.” 1
Wharton, Criminal Evidence
§ 193, at 203
(11th ed.
1935); see
State v. Corby,
28
N. J.
106, 114 (1958). Thus the burdens of proof and persuasion remain with the State, and the defendant’s possession has the effect simply of one circumstance to be considered by the jury in deciding whether the State has proved
In Gainey, supra, in referring to similar language of jury authorization, the United States Supreme Court said:
“Even if it be found that the defendant had been present at the still, and that his presence remained unexplained, the jury could nonetheless acquit him if it found that the Government had not рroved his guilt beyond a reasonable doubt.” 380 U. S. at 70, 85 S. Ct. at 759, 13 L. Ed. 2d at 664.
As in Gainey, even if the jury found in this ease that the defendant possessed the stolen goods, and that such possession remained unaccounted for, the jury could nonetheless acquit him if it found that the State had not proved his guilt beyond a reasonable doubt. ~
B. It is also argued that N. J. S. 2A :139-1 is unconstitutional on its face because it restricts the trial court’s powers over the judicial proceeding. Of course, if the effect of our statute is to prevent the trial judge from granting a motion for a judgment of acquittal, even though the facts in the case are such that no jury could reasonably base a conviction on them, then the protections inherent in a trial by jury are emptied of substance. Ko defendant should be subjected to a jury which can do more than speculatе on the evidence before it. We do not, however, construe the provision in N. J. S. 2A :139-1 that unexplained possession of stolen property “shall be deemed sufficient evidence to authorize conviction” as in any way curtailing the judge’s traditional power. As was said in Gainey in interpreting similar language in the federal statute:
“The language permits the judge to submit the ease to the jury on. the basis of the accused’s presence alone, and to this extent it constitutes congressional recognition that the fact of presence does have probative worth in the determination of guilt. But where the only evidence is of presence the statute does not require the judge to submit the case to the jury, nor does it preclude the grant of a judgment notwithstanding the verdict.” 380 U. S. at 68, 85 S. Ct. at 758, 13 L. Ed. 2d at 663.
C. Defendant contends that by reading to the jury the five defenses which are specifically contained in the statute, the judge thereby unfairly narrowed the area оf available defenses (see
N. J. S.
2A:139-1, reproduced in footnote 1), and shifted the burden of persuasion to the defendant. We have no doubt that if the jury were to be given the impression that the only way a defendant can be acquitted is if he comes within one of the five specific categories, the defendant could be prejudiced. See
State v. Laster, supra,
69
N. J. Super.,
at 510, holding that “the statute in no way prohibits an accused from asserting any defense he chooses.” In the present case, however, the jury was not misled. Besides giving proper instructions that all elements of the crime, including guilty knowledge, must be proved beyond a reasonable doubt (see footnote 2,
supra),
the trial judge emphasized more than once in his charge that if the testimony of Melillo were to be believed, this would constitute a сomplete defense. Melillo’s testimony provided the basis for the defendant’s exculpatory claim that he did not receive and have knowing possession of the stolen goods. Thus the jury could not have been given the impression that only the five defenses specified in the statute would qualify
As for placing a burden on the dеfendant, which we have discussed above, the fact that the judge explained to the jury that the authorized inference and the specific defenses could be disregarded, if they so chose (based on their evaluation of all the evidence), while at the same time stating that all elements of the crime, identity of the goods, possession, and guilty knowledge, had to be proved by the State beyond a reasonable doubt, made it clear to the jury that no part of the burden had shifted to the defendant.
D. Defendant contends further that the use of N. J. S. 2A :139-1 in the present case contravenes his fifth amendment privilege against compulsory self-incrimination. This argument has two facets: Pirst, whether on its face, the statute compels a defendant to take the stand to explain his possession of the stolen goods; and secоnd, in the present case, whether the judge in his charge adversely commented on the defendant’s failure to testify. There is no doubt that the fifth amendment protects a defendant against compulsory self-incrimination, Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1963), and forbids comment by the judge and prosecutor on a defendant’s failure to testify. Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
The pertinent part of
N. J. S. 2A
:139-1 requires that “the accused show” the various defenses “to the satisfaction of the jury.” This language does not require that the defendant must
personally
explain his possession of stolen goods to the jury. The inference of guilt arising from the unexplained possession may be met by evidence other than that of the
The question remains whether the judge’s charge in the present case unfairly commented upon the defendant’s failure to testify. In facing a similar situation, the United States Supreme Court in Gainey said: “[I]n the context of the instructions as a whole, we do not consider that the single phrase ‘unless the defendant by the evidence in the case and by proven facts and circumstances explains such presence to the satisfaction of the jury’ can be fairly understood as a comment on the petitioner’s failure to testify. Cf. Bruno v. United States, 308 U. S. 287, 60 S. Ct. 198, 84 L. Ed. 257. The judge’s overall reference was carefully directed to the evidence as a whole, with neither allusion nor innuendo based on the defendant’s decision not to take the stand.” 380 U. S. at 70-71, 85 S. Ct. at 759, 13 L. Ed. 2d at 664-665.
Compared to Gainey, the present ease is less vulnerable to a constitutional attack based on
Griffin, supra,
for the following reasons: Eirst, our statute, which was also read to the jury, uses the work “show” rather than “explains” to the jury’s satisfaction, carrying with it a much less personal connotation. Second, and more important, at the request of the defendant the judge carefully instructed the jury that
We are satisfied that N. J. S. 2A :139-1 neither unfairly compels an accused to take the witness stand nor, as qualified by the judge’s charge in this case, constitutes a prohibited comment on the defendant’s failure to testify.
E. Eor the reasons set forth above, we uphold the constitutionality of N. J. S. 2A :139-1 as applied in the present case. Because use of the inference may often approach a violation of the defendant’s essеntial rights, however, we think it necessary to reiterate our conclusions for the guidance of trial courts.
In considering a motion for a judgment of acquittal, the trial judge should not be fettered by the statute, but should be free to withhold a case from the jury where reasonable men could not differ as to whether the inference should be drawn. Among the considerations to he weighed is whether, in the factual context of the case, reasonable men could say that the inference permitted by the statute comports with common experience, recognizing that the Legislature has determined that ordinarily, possession within a year has probative worth in the determination of guilty knowledge. If the judge concludes that the case should be submitted to the jury, and the inference charged, he should take pains to point out the permissive nature of the inference. Since the inference is not conclusive, it is to be weighed in connection with the State’s burden of proving every element of the crime beyond a reasonable doubt. As part of this burden, the jury should be reminded that possession of stolen goods within a limited time from their theft is not, in and of itself, a crime. It is possible under our
The language used by the judge in charging the inference should make it clear that the defendant is under no compulsion to come forward personally and explain his possession, A phrase couched in impersonal terms such as “unless possession is satisfactorily accounted for” would make it clear that the inference may be rebutted by the evidence as a whole, and not by the defendant alone.
Since the defendant is not to be limited in his defense to the five specific categories in N. J. S. 2A:139—1, nothing is gained by reading them to the jury. Although it is true, in the present ease, that the judge qualified his reading of the statute to the jury so that there was no reversible error, we believe that any reference to the statute ought to be omitted. See Gainey, supra, 380 U. S., at 71, n. 7, 85 S. Ct. 754, 13 L. Ed. 2d, at 664, n. 7; cf. State v. Gardner, 51 N. J. 444, 455 (1968). The statute, preferably, should be used as an evidential guide to the judge, reminding him, and the jury through him, that while the State must prove guilty knowledge beyond a reasonable doubt, an inference of knowledge from recent possession ordinarily comports with common experience. See McCormick, Evidence (1954) § 313, pp. 654—663; Soules, Presumptions in Criminal Cases, 20 Baylor L. Rev. 277 (1968); Comment, The Constitutionality of Statutory Criminal Presumptions, 34 U. Chi. L. Rev. 141 (1966); Note, Constitutionality of Rebuttable Presumptions, 55 Colum. L. Rev. 527 (1955).
Ill
Defendant argues that error occurred as a result of the following cross-examination of defense witness Yolanda Cuomo:
“[By tlie State]
Q. I ask you, Miss Cuomo, are you a friend of the defendant?
A. Yes.
Q. You are
Have you ever told anyone you were afraid of the defendant? * * *
[Objection by defense counsel—overruled] The Witness: No.
Q. I direct your attention to your statement of July 30, 1967, and without reference to the question which relates to Mr. DiRienzo, I ask you to read that answer to yourself, first.
Have you read it? A. Yes.
Q. Now, I ask you if you at that time signed this statement bearing this answer. ‘No I have not heard them speak to each other since that time, every time Joe [the defendant] comes around I stayed away from him because he is a dangerous man and I am very much afraid of him and I dоn’t want to bother with him.’
* * * [defense counsel moved for mistrial — denied]
Q. Did you give that answer at that time? A. Yes.”
Defendant contends that the trial judge abused his discretion in not granting the motion for a mistrial or in not giving the jury a limiting instruction. We cannot agree. Generally, a motion for a mistrial should be granted only in those situations which would otherwise result in manifest injustice. In the present case, Miss Cuomo’s above testimony was admissible for a dual purpose. First, as a defense witness the credibility of her testimony was subject to impeachment, and her prior inconsistent statement could be used accordingly. State v. Salimone, 19 N. J. Super. 600, 608 (App. Div. 1952); N. J. Rule of Evidence 20. And second, it is relevant to the weight to be attributed a witness’s testimony to show that the witness may be testifying in fear of retaliation by the defendant. Haver v. Central R. R. Co., 64 N. J. L. 312 (E. & A. 1900). It is well established that “[e]very fact or circumstance tending to show the jury the witness’ relation to the case or the parties is admissible to the end of determining the weight to be given to his evidence.” State v. Spruill, 16 N. J. 73, 78 (1954). The granting of a mistrial is within the sound discretion of the trial judge, and we cannot conclude that in the circumstances of this case the judge abused this discretion.
IV
On this appeal, defendant contends for the first time that the various items which were taken by the police from his apartment and his automobile were seized in violation of his fourth amendement rights, and thus their introduction at trial was improper. Eo motion in accordance with the rule of court was made in advance of trial to suppress the evidence taken by the police, nor was any objection to the evidence as the product of an unconstitutional search made at the trial.
R.
In any event, although the issue is not properly before us, we note that the defendant’s substantive claims are without merit. The affidavit of Detective Scott supporting the search warrants was based on the statement of
1. At the time he was аpprehended, Melillo was driving an automobile which had been fraudulently obtained from a rental agency by the use of a credit card issued to Mr. Tiley, one of the victims of the Chatham burglaries.
2. Detective Scott verified Melillo’s knowledge of the burglaries in Chatham and the identification of the items stolen by a call to the Chatham police headquarters.
The facts in Detective Scott’s affidavit provide ample substantiation of Melillo’s statement. As we have held, hearsay is an adequate basis for finding probable cause and the issuance of a warrant, so long as there are facts which give the statement an appearance of trustworthiness. State v. Kasabucki, 52 N. J. 110, 116 (1968). See Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (Jan. 27, 1969); Coyne v. Watson, 282 F. Supp. 235, 236-238 (S. D. Ohio 1967), affirmed, 392 F. 2d 585, certiorari denied, 393 U. S. 951, 89 S. Ct. 372, 21 L. Ed. 2d 362 (1968).
With regard to the travel kit which was taken from the defendant’s automobile in the apartment parking lot, the only evidence in the case is that the kit was lying on the back seat of the car in the officer’s plain view. “It has long been settled that objects falling in the plain Mew of an officer who has a right to be in the position to have that Mew are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U. S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067, 1069 (1968); State v. McKnight, 52 N. J. 35, 56 (1968).
Defendant’s next contention is that the brown envelope with Mr. Tiley’s initials, the Bank of Lebanon, Pennsylvania bag, the Seagram’s Crown Royal bag and the leather travel kit all were introduced in evidence without having been specified in the indictments (although the bank bag and Seagram’s bag were mentioned in the search warrants). The indictments had mentioned only the wrist watch and the rare coins. The argument is that introducing the unspecified items into evidence at trial surprised the defendant and rendered him unablе to prepare an adequate defense. We cannot agree. There was no need for the State to indict the defendant for possession of the relatively valueless items taken by the police. As articles in evidence, they were relevant to the identification of the watch and coins as stolen property because they belonged to the owners of the watch and coins and disappeared at the same time. Moreover, the kit which was taken from defendant’s car was important in that it tended to discredit the defense’s story that DiRienzo was away on a trip at the time of the alleged delivery of the stolen goods to his apartment. See State v. Popick, 83 N. J. L. 318 (Sup. Ct. 1912); Wertheimer & Goldberg v. State, 201 Ind. 572, 169 N. E. 40, 68 A. L. R. 178 (1929). The defendant has not suggested in any way how he was hampered in the preparation of his defense by the absence of these items from the indictments. The defense was that Melillo purchased the stolen goods and placed them in the apartment for his own use. The number of items was clearly irrelevant to this defense. We find no error.
VI
Defendant contends that by sentencing him to consecutive sentences pursuant to two indictments consolidated for trial, he is in effect being punished twice for a single offense. One indictment charged him with unlawfully receiving the Tileys’ stolen wrist watch; the other concerned
YII
The remaining issues raised by the defendant are without merit and warrant little discussion. The apparent one-day disparity in the dates marked on the affidavit and the first search warrant was merely an inadvertence, as the issuing judge so certified. Examination of the record satisfies us that the trial was conducted fairly by the judge, and thе charge read as a whole set forth the controlling legal principles and factual issues to be considered by the jury. Certainly no portion of the charge amounted to plain error, the burden which the defendant must meet in view of his failure to object to the charge.
R.
The judgment of conviction is affirmed and the sentence modified in accordance with this opinion.
For affirmance — Chief Justice Weietteatjb and Justices Ebaetcis, Peoctoe, Hall, Schettieto and Haetemaet — 6.
For reversal — None.
Notes
N. J. S. 2A: 139-1.
Any person wlio receives or buys any goods or chattels, or choses in action, or other thing of value stolen from any other person or taken from him by robbery оr otherwise unlawfully or fraudulently obtained, or converted contrary to law, whether the stealing or robbery was committed either in or out of this state, and whether the property was received or bought from the thief or robber, or from another person, or who receives, harbors or conceals any thief or robber knowing him to be so, is guilty of a high misdemeanor.
Possession of such property within 1 year from the date of such stealing, robbery or unlawful or fraudulent obtaining, shall be deemed sufficient evidence to authorize conviction, unless the accused show to the satisfaction of the jury either:
a. That the property, considering the relations of the parties thereto and the circumstances thereof, was a gift to him and not received by him from a minor under the age оf 16 years; or
b. That the amount paid by him for the property represented its fair and reasonable value and that it was not received by him from a minor under the age of 16 years; or
e. That when he bought the property he knew or made inquiries sufficient to satisfy a reasonable man, that the seller was in a regular and established business for dealing in property of the description of the property purchased; or
d. That when he received or bought the property, he simultaneously with or before the z-eceipt or sale, reported the transaction to the police authorities of the municipality in which he resided at the
e. That before he received or bought the property from a minor under the age of 16 years, he first communicated with the police authorities of the municipality in which he resided and obtained their approval for the purchase, barter, exchange or receipt of possession thereof.
A literal reading of N. J. S. 2A:139-1 would seem to permit conviction without regard to proof of guilty knowledge: “possession of such property * * * shall be deemed sufficient evidence to authorize conviction * * For example, the statute on its face would authorize conviction of a police officer having possession of stolen goods in the course of his duties. This would be an absurdity. The trial judge, however, rightly read into the statute a requirement of proof of guilty knowledge without which the statute would be vulnerablе to constitutional attack. Receiving stolen goods is a crime which traditionally requires proof of the defendant’s state of mind as an element of the State’s case. This was the effect of the holding in State v. Laster, 69 N. J. Super. 504 (App. Div. 1961); see Morissette v. United States, 342 U. S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1951); State v. Hudson County News Co., 35 N. J. 284 (1961). The state of mind in a receiving stolen goods ease includes both intentional possession, discussed in I., infra, and guilty knowledge, i. e., knowledge that the goods were stolen and an intent to deprive the rightful owner of their possession. The propriety of the jury’s inference of guilty .knowledge from possession will be discussed in II., infra.
These rights are made applicable to the states by the fourteenth amendment. Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1963).
Carter overruled the decision in Cox v. State, 398 P. 2d 538 (Sup. Ct. Nev. 1965), which had upheld the Nevada statute one year earlier. Cox had relied upon several New Jersey cases. However, the Nevada court did not refer in either of its opinions to State v. Todaro, 131 N. J. L. 430 (E. & A. 1944) which the Supreme Court of the United States dismissed for lack of a substantial federal question citing Tot. 323 U. S. 667, 65 S. Ct. 73, 89 L. Ed. 542 (1944).