Eastwood, Bigelow and Francis. The opinion of the court was delivered by Bigelow, J.A.D.
The only alleged errors that need be considered grow from the instructions that were given to the jury. The appellant Edelman and two others, Ruggiero and Gross, were indicted for conspiracy and pleaded not guilty. Edelman and Ruggiero were tried together and Gross, who was not put to trial, was the principal witness against them. Ruggiero was acquitted and Edelman was convicted.
The court charged the jury with respect to the testimony of Gross:
"The testimony of one of the defendants has been used in this case in behalf of the State, and you are to accord his testimony just as much value as the testimony of any other witness excepting as I shall later tell you insofar as his former conviction of a crime may have some effect upon his credibility as a witness."
The weight to be given the testimony of Gross was affected by two factors that ordinarily are absent -- that he had been convicted of a crime, and that he was an accomplice. The court properly charged that the jurors should take Gross' prior conviction into consideration in determining what weight or credit to attach to his testimony. But the court, in the passage above quoted and throughout the charge, ignored the fact that Gross, according to his own testimony, was an accomplice of Edelman in the conspiracy and, despite that circumstance, charged the jury "to accord his testimony just as much value as the testimony of any other witness."
Where an accomplice is presented by the State as a witness against his co-defendant and testifies fully and truth-fully, he thereby obtains an equitable or moral claim for leniency that would not be his due if he had not aided the State in this manner. State v. Graham , 41 N.J.L. 15 (Sup. Ct. 1879); State v. Grundy , 136 N.J.L. 96 (Sup. Ct. 1947). An accomplice is apt to believe that if his testimony supports the contention of the State, the representatives of the State will accept it as true and will grant him favorable treatment, even though his testimony is, in fact, false. For this reason,
among others, the jury should regard the testimony of an accomplice with suspicion, and should accept it as true only after careful scrutiny. State v. Hyer , 39 N.J.L. 598 (Sup. Ct. 1877); State v. Black , 97 N.J.L. 361 (Sup. Ct. 1922); State v. Hogan , 13 N.J. Misc. 117, affirmed 115 N.J.L. 531 (E. & A. 1935). What credit should eventually be given the testimony is, of course, a matter to be determined by the jury. State v. Mohr , 2 N.J. Misc. 261 (Sup. Ct. 1924), affirmed 101 N.J.L. 230 (E. & A. 1925). They may put little or no faith in it, or they may be convinced of its truth, but certainly they are not required as a matter of law to accord it "just as much value" as the testimony of any other witness. The instruction was erroneous.
The defendant made no request to charge on the subject of the testimony of Gross, and he made no objection to the instruction that was given or to the court's failure to warn the jurors against too ready an acceptance of his testimony. But the omission of the usual words of caution and the erroneous instruction given to the jury were especially harmful because the State had no case without Gross' testimony. We are satisfied that the appellant suffered manifest injury and that there should be a reversal on this score.
The appellant did not testify. On this subject, the court charged:
"When an accused person is on 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 charges. There is a rule in this State that the failure of a defendant to testify may be commented upon as tending to establish facts which would justify a strong inference that the defendant could not deny the charges."
Appellant objected to this passage. After the jury had considered the case for two hours, they returned to ask the court, "Could the State have put Edelman on the stand inasmuch as his attorney did not?" While the learned trial ...