On error to the Essex County Court of Quarter Sessions.
For the plaintiff in error, Kessler & Kessler (Samuel I. Kessler and William L. Vieser, of counsel).
For the state, Duane E. Minard, Jr., Prosecutor of the Pleas, and C. William Caruso, Assistant Prosecutor of the Pleas.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
HEHER, J. Plaintiff in error was convicted upon an indictment charging the breaking and entering, by night and by day, of the dwelling house of one Boorse, in the Town of Upper Montclair, with intent to steal, & c., and the larceny and receiving of goods and chattels of the householder.
Pursuant to R.S. 2:195-16, the entire record of the trial proceedings has been returned with the writ of error and the bill of exceptions.
The accused did not offer himself as a witness; and error is assigned upon the charge of the court in that regard. The instruction follows:
"The defendant chose not to take the witness stand. A defendant in a criminal proceeding may testify in his own behalf if he so desires, though he cannot be compelled to be a witness against himself, but when the accused is upon trial and the evidence tends to establish facts, which, if true, would be conclusive of his guilt of the charge against him and he can disprove them by his own oath as a witness if the facts be not true, then his silence would justify a strong inference that he could not deny the charge."
This was an application of the doctrine first enunciated in the case of Parker v. State, 61 N.J.L. 308; Affirmed, 62 Id. 801. There, this specific adverse inference was declared to be "natural and irresistible;" the accused's failure to take the witness stand in such circumstances was deemed a "plain and forcible * * * indication of guilt" which the law did not oblige the judge to ignore in his instructions to the jury. The principle still pervades our jurisprudence, but the formula of its expression has been modified. Our court of last resort considers it more accurate to say that "if facts are testified to which concern the acts of the defendant which he could by his oath deny, his failure to testify in his own behalf raises a strong presumption that he cannot truthfully deny them." State v. Kisik, 99 Id. 385; State v. Boccadoro, 105 Id. 352. But it is said that the rule obtains only where the evidence against the accused is direct, as distinguished from circumstantial, and "there are direct accusations against the accused which if true would be conclusive of his guilt, and which he could by his own oath truthfully deny," and such is not the case here.
There are cases which seemingly distinguish, as respects the pertinency of this doctrine, between "direct evidence of guilty acts" which the ...