Freund, Stanton and Conlon. The opinion of the court was delivered by Conlon, J.c.c.
The defendant was convicted in the Bergen County Court on both of two counts of an indictment charging him with the crime of embracery. He was sentenced to from two to three years in State Prison and a fine of $1,000 on each count, the prison sentences to run concurrently, the fines to be separate on each count.
On his appeal to this court the defendant makes only two contentions: (1) that the trial court committed reversible error in failing to charge his second request to charge; and (2) that he was not lawfully amenable to a separate sentence on each count of the indictment.
The second request to charge was as follows:
"Reasonable doubt may be engendered by lack of evidence. If the State failed to produce evidence sufficient to satisfy you of the guilt of the defendant beyond a reasonable doubt, he is entitled to an acquittal even though that doubt may be engendered merely by lack of production of evidence by the State."
The request encompassed a correct statement of law and, nothing else appearing, the failure to charge it constitutes reversible error. State v. Andrews , 77 N.J.L. 108 (Sup. Ct. 1908); State v. DePaola , 5 N.J. 1 (1950). However,
it was not error for the court to refuse to charge the request if the principle therein enunciated is otherwise included in the charge. State v. Myers , 7 N.J. 465 (1951); State v. Tansimore , 3 N.J. 516 (1950).
In the instant case the court gave the conventional charge as to the presumption of innocence, the burden of proof, the principle that the defendant was entitled to the benefit of reasonable doubt, defined reasonable doubt and then added: "Should you feel a reasonable doubt as to any essential or material element in the evidence submitted to you by the State, you will give the defendant the benefit of that doubt; otherwise you will not." The defendant contends that the charge as delivered contained the same erroneous statement as that quoted in State v. DePaola, supra , the effect of which was to restrict the jury in its application of the rule of reasonable doubt to a doubt that arose from the evidence produced by the State and thus precluded the rule that such doubt may be engendered by lack of evidence. The fair import of the charge as a whole includes the principle, among others, that the defendant should be acquitted unless the evidence of the State was sufficient to overcome the presumption of his innocence beyond a reasonable doubt. That being so the substance of the request was implicit in the general charge and the failure to charge the request was not error.
While the merits of defendant's contention have been considered and while it may be argued that a meticulous reading of the charge indicates that the element of lack of sufficient evidence might have been explained more specifically, the point is not properly before the court. Obviously both the trial judge and the defense counsel were of the opinion that the subject matter of the second request was covered in the general charge. Whether it was or not is rendered immaterial by the following colloquy between the court and counsel at the conclusion of the charge:
"THE COURT: I have some requests to charge. Number one, I will deny, but number two, Mr. Gross, I think I have substantially charged for you; likewise number three and four.