McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Wm. J. Brennan, J.A.D.
[9 NJSuper Page 257] Kane was convicted in the Bergen County Court of setting fire to a building, R.S. 2:109-3. The chief witness against him was an accomplice, Callandrillo, who pleaded guilty to the same indictment.
Both men were striking employees of Continental Paper Company, in Bogota. Callandrillo testified that he and Kane were doing picket duty the night of September 28, 1949, when Kane asked his help to carry out the request of one Adamo, the strike leader, to burn down a company building. He said he went home and returned with his automobile, picked up Kane, who had meanwhile obtained a gallon jug of kerosene from a nearby lunchroom building, and that they drove to Old Mill Road and parked. He testified that Kane left his hat on a seat in the car and that they both headed for the company's buildings, Kane carrying the jug; that when they reached the timekeeper's building, Kane hid the jug in some bushes near the building while they tried several doors until Kane found the door to the timekeeper's office open and said "We'll burn this down;" that Kane took the jug from the bushes and went toward the timekeeper's office, that he told Kane he would go back and start the car and did so but couldn't start it, that he raised the car hood to find the trouble, and at that instant noticed a flash of light from the timekeeper's office, was scared, grabbed Kane's hat and his own lunch from the car and ran about a half mile to the plant of Arrow Rubber Company where eight weeks before he had obtained temporary employment on the night shift; that he hid Kane's cap in a refuse carton in the smoking room at the Arrow plant, worked until 6:30 the following morning when he feigned that his car had been stolen from the plant's parking lot during the night, that the Bogota police were called by an Arrow Company employee and the officers took him to Old Mill Road where the car had been left, after which he was taken to the Bogota Police Station and then to the Bergen County Prosecutor's office.
Kane's cap was received in evidence after two police officers testified to finding it on the morning of September 29th in the rubbish container at the Arrow plant where Callandrillo had said he hid it, and when Kane took the stand he admitted the cap was his.
Callandrillo's wife testified that Kane, whom she had never seen before, came to her house about 8:15 A.M. on September
29th, identified himself by his nickname "Rabbit" and inquired for Callandrillo. Callandrillo's night foreman at the Arrow plant, who likewise said he had never seen Kane before, testified that Kane and one Sands had come to the shop during the same morning looking for Callandrillo.
Kane's defense was an alibi. He admitted seeing Callandrillo on the picket line on September 28th but said it was early that morning. He testified he played cards with him at that time on the running board of Callandrillo's car and said he had put his cap in the car during the game. He categorically denied seeing Callandrillo on the picket line that night and said he spent the evening in a tent playing cards with other pickets until he went to bed in a trailer nearby where he said he was asleep until 6:30 or 7 of the following morning. He admitted going to Callandrillo's home and to the Arrow plant but said he was simply accompanying Sands, a member of the strikers' welfare committee, that Sands had asked him to go along, telling him Callandrillo wanted to see him, Sands. Sands testified to the same effect but admitted that at Callandrillo's home, Kane, not Sands, talked to Mrs. Callandrillo. Two strikers corroborated Kane's alibi and said that they saw Kane asleep in the trailer at the time the crime was alleged to have been committed.
Callandrillo gave the prosecutor a statement on the morning of September 29th; it was not admitted in evidence but it is clear from the testimony that it implicated Kane. Kane was picked up and brought to the court house where he was questioned in the prosecutor's office during the day and twice denied that he had had anything to do with setting the fire. Callandrillo was brought in later in the afternoon to confront Kane and in Kane's presence accused Kane of complicity in the crime, whereupon Kane, according to Callandrillo's testimony, said nothing, and according to DeMarco, a prosecutor's detective, said "I have nothing to say."
Kane asserts that the trial court erred in admitting this testimony of his silence when confronted and accused by Callandrillo. We do not agree. While a contrary view obtains
in some jurisdictions, Annotations , 80 A.L.R. 1259 and 115 A.L.R. 1517, and Wharton, Criminal Evidence , 11 th ed. (1935), Vol. 2, § 660 et seq. , in New Jersey "The circumstance that the defendant is under arrest does not by itself make the declaration inadmissible." State v. Toohey , 6 N.J. Super. 97 (App. Div. 1950), citing State v. Rosa , 72 N.J.L. 462 (E. & A. 1905); State v. Morris , 94 N.J.L. 19; affirmed, Id. , 94 N.J.L. 567 (1920); "the general rule is entirely settled that evidence is admissible of a statement relevant to the offense charged if it is made in the presence of the accused and if the truth of the statement is not denied by him at the time. Donnelly v. State , 26 N.J.L. 504; affirmed, Id. , 26 N.J.L. 601 (1857); State v. Friedman , 136 N.J.L. 527 (E. & A. 1948);" and further, "If the witness testifies that the defendant did speak up and deny the charge, proof of the accusatory statement is not admissible." Ibid. Nor should the testimony be admitted if it appears that the declaration "was made in the course of a judicial inquiry, or when circumstances existed which rendered a reply inexpedient or improper, or that fear, doubts of his rights, or a belief that his security would be better promoted by silence than by a response, governed him at the time * * *," Donnelly v. State, supra , at page 612.
Kane says in his brief that before the confrontation "the defendant was advised by counsel to say nothing." Proof of silence under such circumstances might properly raise a question whether the silence could be made evidence against him. Cf. Roesel v. State , 62 N.J.L. 216, at 235 (E. & A. 1898). However, the record here is to the contrary of the assertion in the brief. The suggestion that Kane was silent on the advice of counsel was not mentioned until Kane took the stand and then on cross-examination he steadfastly denied that when his lawyer accompanied him to the prosecutor's office on September 29th he heard the lawyer, in the elevator, tell him to keep his "mouth shut, deny it and tell them nothing."
The trial judge's charge dwelt at some length as to the significance to be given Kane's silence both as to this
incident and as to another, abandoned at the oral argument as a reason for reversal, which occurred when Kane, Callandrillo and Adamo met at a lawyer's office and Callandrillo related to the lawyer the contents of the statement he had made to the prosecutor. The charge carefully instructed the jury that "silence alone is very slight evidence of guilt and aside from the inference which may arise from the attendant circumstances should be received with caution as proof of guilt," and if from the attendant circumstances "he shall show to the satisfaction of the jury that his silence was caused by reasons or prompted by motives consistent with his innocence, the accusatory statements and his silence should be disregarded, and among the many reasons which he may show for silence would be that ...