McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
The defendant, Charles Craig, asserts several grounds for a reversal of his conviction on an indictment charging him with having unlawfully taken a motor vehicle in violation of R.S. 2:145-6. He was jointly indicted with one Charles Williams. The court granted the State's application for a severance.
For the purpose of disposing of the issues raised by defendant's appeal, it becomes essential to discuss only three of the several grounds argued, to wit: (1) "The court improperly directed questions to defendant's attorney as to the defense of the defendant;" (2) that the court erred in ordering the defendant to take the stand during the State's case and permitting the cross-examination of defendant as to prior convictions; and (3) that the court erred in its instructions to the jury
The defendant complains that the court's action in interrogating his counsel during the trial as to the defendant's defense was erroneous and that the defendant suffered manifest wrong or injury thereby. Rule 2:7-3 provides:
"Before any evidence is offered at criminal trials, the state shall make an opening statement to the jury. Immediately thereafter,
the defendant or his attorney shall make an opening statement outlining his defense. Failure of defendant or his attorney to make such opening at that time shall bar any further opening by defendant or his attorney throughout the trial."
It is apparent from the Rule that it is not mandatory for the defendant or his attorney to make an opening statement to the jury outlining his defense. Both the State and defendant's counsel made opening statements to the jury, although no stenographic record thereof was made. Defendant did not interpose any objection to the interrogation by the court as to the defendant's defense; therefore, he is not entitled to raise the issue on appeal, unless it appears that he suffered manifest wrong or injury thereby. We find none. State v. Meola , 6 N.J. Super. 214, 219 (App. Div. 1950). While not called upon to decide the question, we are of the opinion that in view of Rule 2:7-3, it is better practice for the court to refrain from interrogating or requesting defendant or his counsel to make known his defense during the trial.
Our examination of the record discloses that the court did not order the defendant to take the stand during the State's case. The defendant's attorney voluntarily placed the defendant on the stand to testify after he objected to the admission of two written statements made by the defendant, on the ground that the determination as to their admissibility "should be reserved until the defendant has had the opportunity to testify with regard to making of the statement." The court thereupon stated that the question of admissibility was for its determination and that if the defendant desired to raise that question "he may take the stand to do so." Thereupon, the defendant took the stand for the sole purpose of testifying as to the voluntariness of the statements in question. While on the stand and under cross-examination by the State, the court permitted the State, over defendant's objection, to interrogate the defendant as to prior convictions. The defendant
contends that the court erred in admitting the challenged testimony, on the ground that the examination of the defendant was limited to evidence concerning the voluntariness of the confession, and that the evidence of defendant's prior convictions was not within the scope thereof; and in view of the fact that the interrogation was in the presence of the jury, the testimony was improperly admitted. It is the well settled rule in this State that the question of admissibility of confessions is for the sole determination of the court and not for the jury. When a confession is offered by the State in a criminal case, it is the right of the counsel of the prisoner, before it is admitted, to cross-examine the witness who proposes to testify as to the circumstances surrounding the making of it, and the defense may also call, at the same time, independent witnesses and examine them, going thoroughly into the whole matter as to how the confession came to be made, the parties present, the physical conditions and state of mind of the prisoner at the time it was made, and then the court, with all these facts before it, passes upon its admission. State v. Hill , 65 N.J.L. 626 (E. & A. 1900). The jury, during the hearing of this evidence, may be withdrawn, as is proper during all proof and argument upon questions of admissibility; but, when a confession is ruled to be admissible, the same evidence and all other circumstances affecting the weight of the confession may be introduced for the jury's ultimate consideration. Wigmore on Evidence (3 d Ed.), Vol. 3, § 861 (2) and (3), p. 349. The trial judge may exclude the jury from the court room or hear the ...