State v. WinesState v. Wines
Since common points for the reversal of the judgments of conviction were implicated in these appeals, they wеre argued in concert.
At the 1954 Term, the grand jury of the County of Hudson presented an indictment designated as No. 631 charging the defendants, Harry Wines and Anthony Palumbo, in the first cоunt with the commission of armed robbery on April 20, 1955 in the Town of Guttenberg in violation of
For their guilt of armed robbery each defendant was sentenced to imprisonment for the term of from 10 to 15 years; for the commission of assault, the defendant Wines was sentenced to serve a consecutive term of imprisonment of from 5 to 7 years, and the sentence of the defendant Palumbo for that alleged offense was suspended.
Oddly, one Part of this Division granted Wines leave to appeal in forma pauperis, and he forthwith filed his notice of appeal; a like petition presented by Palumbo to another Part was denied. The State challenges the right of the defendant Palumbo to prosecute his desired rеview in the absence of the requisite notice of appeal.
True, the defendant Palumbo has not filed a notice of appeal. It is recognized that his original petition for leave to appeal in forma pauperis tolled the time for filing the notice of appeal.
A further circumstance must, howеver, be heeded. The defendant Palumbo, after his allotted time for appeal had passed, nevertheless acquainted the Supreme Court with the denials of his petition and sought from that tribunal leave to appeal from his conviction in forma pauperis.
The Supreme Court, evidently recognizing the correspondence in thе grounds of appeal seemingly available alike to both Wines and Palumbo and the probably unintended discrimination
To that fair and just end and after a preliminary discussion of the subject with counsel, we, sua sponte, vacated the order of the Part denying Palumbo‘s petition for leave to appeal and extended to him the privilege therein requested. See, In re Katz, wherein a petition for certification was initially denied but subsequently reconsidered and granted, 19 N.J. 328 (1955); 21 N.J. 337 (1956); see, power to recall mandate, Yonadi v. Homestead Country Homes, Inc., 42 N.J. Super. 521 (App. Div. 1956). Consult, also, United States v. Ohio Power Co., 353 U.S. 98, 77 S.Ct. 652, 1 L.Ed.2d 683, 685 (1957). Our present review therefore encircles the convictions and sentences of both Wines and Palumbo.
It requires only a meager expenditure of words for us to announce our conclusion that the convictions of these defendants under the second count of the indictment accusing them of committing the additional crime of assault with intent to rob while armed are manifestly illegal. The record distinctly reveals that the robbery was the end result оf the single occurrence, and that the alleged assault was an integral part of the principal offense of the robbery charged in the first count. The сonvictions of both defendants of assault under the second count are reversed. State v. Hill, 44 N.J. Super. 110 (App. Div. 1957).
We note that the County Court recalled the defendants and extinguished the sentences theretofore imposed upon them for the alleged assault, but it may be pertinent to mention that the procedure supplied by
At the trial each defendant denied his participation in the robbery and declared his absence from the occurrence and scene of the crime. Each respеctively produced witnesses whose testimony was corroborative. The defense was one of alibi which generated, however credible or incrediblе, a factual inquiry essential to the determination of their guilt or innocence.
Concerning the effectual and influential availability of such a defense, the trial judge delivered to the jury the following instruction:
“* * * Now when I say the State has to prove the defendants guilty beyond a reasonable doubt, the same legal burden is on the defendants when they set up the defense of alibi. They have to prove it; but you must take that into consideration with the main duty, which is to prove they were there аnd that they did it. But with respect to the defense of alibi it is the duty of the defendants to prove it by the greater weight of the believable testimony produced here. Thеrefore, with respect to the defense of alibi you are to take the evidence of the defendants and their witnesses and carefully consider it together with all the other evidence in the case, giving to all the evidence such weight and credence as you think it is entitled to. And if it creates in your minds uncertainty as to the whereabouts of the defendants at the time of the alleged commission of the crime, and you are not satisfied beyond a reasonable doubt of their guilt, you should give them the benefit of that reasonable doubt and acquit them.”
The trial judge obviously slipped on the steps of law and logic. On the stairway of his instruction, hе placed upon the defendants the burden of establishing their defenses of alibi by proof beyond a reasonable doubt, next by the greater weight of the crеdible testimony. And then follows the word “therefore.” It is the immediate contexture of the word “therefore” that commands impressive significance in the juror‘s probable interpretation of the import of his succeeding pronouncement.
A glance at our decisions will display the manifest error in law of the court‘s instruction. Sherlock v. State, 60 N.J.L. 31 (Sup. Ct. 1897); State v. MacQueen, 69 N.J.L. 522 (Sup. Ct. 1903); State of New Jersey v. Tapack, 78 N.J.L. 208 (Sup. Ct. 1909); State v. De Geralmo, 83 N.J.L. 135 (Sup. Ct. 1912); State v. Diamond, 84 N.J.L. 17 (Sup. Ct. 1913); State v. Parks, 96 N.J.L. 360 (Sup. Ct. 1921); State v. Kaplan, 115 N.J.L. 374 (Sup. Ct. 1935). The decision in State v. Guarino, 105 N.J.L. 549 (E. & A. 1929), is particularly pertinent and informative.
Here, the instructions that the defendants incurred the obligation of proving their averments of alibi beyond a reasonable doubt and by the greater weight of the believable evidence were not only illogically discordant, but both were erroneous. Cf. J.D. Loizeaux Lumber Co. v. O‘Reilly, 104 N.J.L. 510 (E. & A. 1928). We are persuaded that the quoted passages of the court‘s charge were in any aspect plainly erroneous and such as to be fundamentally influential
The judgments of conviction here under review are reversed.