McGeehan, Jayne and Goldmann. The opinion of the court was delivered by Jayne, J.A.D.
The three defendants, who unite in the prosecution of the present appeal, were jointly indicted and convicted of the criminal offense of willfully and unlawfully keeping a place to which persons might resort for gambling. N.J.S. 2 A:112-3.
Of the six specified grounds of appeal our attention concentrates particularly upon the second, which pertains to a passage in the instructions imparted to the jury by the court.
Although several witnesses were called to testify on behalf of the defendants, none of the defendants chose to testify. The failure of the defendants to do so undoubtedly actuated the trial judge to inform the jury:
"Under our law a defendant cannot be compelled to testify, but he is competent to testify and he has the right to testify. His failure to be a witness in his own behalf is no presumption of guilt, and does not erase the presumption of innocence, but if facts are testified to which concern the acts of that particular defendant which he could by his oath deny, his failure to testify in his own behalf raises a strong presumption that he could not truthfully deny those facts." (Italics supplied.)
The legal applicability of this passage of the charge and its propriety as an expression of the logical principle are criticized by the defendants.
The rule which relates to the permissible presumption or inference produced by the failure of a defendant to testify on his own behalf in a criminal case has undergone noticeable judicial attention. Vide, Parker v. State , 61 N.J.L. 308 (Sup. Ct. 1898), affirmed 62 N.J.L. 801 (E. & A. 1899); State v. Twining , 73 N.J.L. 3, 12 (Sup. Ct. 1905), affirmed 73 N.J.L. 683 (E. & A. 1906); State v. Callahan , 77 N.J.L. 685 (E. & A. 1909); State v. Di Benedetto , 82 N.J.L. 168 (Sup. Ct. 1912), affirmed 83 N.J.L. 792 (E. & A. 1912); State v. Banusik , 84 N.J.L. 640, 648 (E. & A. 1906); State v. Schlosser , 85 N.J.L. 165 (Sup. Ct. 1914), affirmed 86 N.J.L. 374 (E. & A. 1914); State v. Connors , 87 N.J.L. 419 (Sup. Ct. 1915); State v. Frank , 90 N.J.L. 78
(Sup. Ct. 1917), affirmed 91 N.J.L. 718 (E. & A. 1918); State v. Schilling , 95 N.J.L. 145 (E. & A. 1920); State v. Kisik , 99 N.J.L. 385 (E. & A. 1924); State v. Boccadoro , 105 N.J.L. 352 (E. & A. 1929); State v. Lennon , 107 N.J.L. 94 (E. & A. 1930); State v. Gimbel , 107 N.J.L. 235 (E. & A. 1930); State v. Lang , 108 N.J.L. 98, 104 (E. & A. 1931); State v. Jefferson , 131 N.J.L. 70, 75 (E. & A. 1943); State v. Friedman , 135 N.J.L. 414 (Sup. Ct. 1947), and opinion on appeal, 136 N.J.L. 527 (E. & A. 1948); State v. Anderson , 137 N.J.L. 6 (Sup. Ct. 1948); State v. Edelman , 19 N.J. Super. 350 (App. Div. 1952).
In many states statutes relating to the subject have been enacted and their constitutionality debated. Anno. , 94 A.L.R. 701. An exploration of the numerous cognate decisions beyond those within the boundaries of our own jurisdiction would be more improvident than useful.
But, as former Chief Justice Case remarked in State v. Anderson, supra , "Our appellate courts have not always been entirely clear in their expressions on the subject."
In an analytic study of an instruction of the court within this category it is judicious to observe whether the postulate of the instruction relates merely to inculpatory acts of the defendant and criminatory facts of which the defendant has knowledge or to facts within his cognizance which are conclusive of his guilt.
The postulate regulates the nature and extent of the permissible inference. In the former instance, the only deductive inference is that the defendant cannot truthfully deny those facts; in the latter, the more expansive inference arises that he cannot truthfully deny the accusation of guilt alleged in the indictment. This we recognize to be the rationale of the more recent pertinent decisions of our appellate courts.
We pause, however, to recommend that in employing the not unfamiliar expression, "if facts are testified to which concern the acts of the ...