Clapp, Goldmann and Ewart. The opinion of the court was delivered by Clapp, S.j.a.d.
The appellant, Benjamin Ferrell, was convicted under an indictment charging him and others with atrocious assault and battery. This, a fourth conviction, led to a life sentence under N.J.S. 2 A:85-12.
A number of points are raised, but we find it necessary to consider only one. This has to do with an allegedly improper remark of the assistant prosecutor at the trial. On this matter, there was a diminution in the transcript of the testimony. So, the trial judge having died after the trial, and there being but ten minutes of oral testimony needed, we, upon the authority of the New Jersey Constitution, Art. VI, Sec. V, par. 3 and R.R. 1:5-4 and 2:5, and notwithstanding the provisions of R.R. 1:6-6, took the testimony ourselves.
The authority to take testimony here cannot be doubted. Under the constitutional provision, this "court
may [ R.R. 1:5-4 is identical, except that for the word "may," it substitutes "shall"] exercise such original jurisdiction as may be necessary to the complete determination of any cause on review." The lineage of this provision can be traced, by its very language, to the proposed Constitution of 1944 (L. 1944, p. 219); to the draft prepared by the Commission on Revision of the New Jersey Constitution, Art. V, Sec. IV, par. 4 (1942) (IV Proceedings of the Constitutional Convention 1947, 562); to the proposed 1909 constitutional amendments, Sec. V, par. 1 (L. 1909, p. 380); and so to the English Judicature Act of 1873, section 19. The kinship between these provisions may be more evident if it is noticed that the 1944, 1942 and 1909 provisions confer jurisdiction "incident to" etc. (compare the above constitutional phrase, "necessary to"); while the Judicature Act gives the Court of Appeal, for all purposes "incidental to" the determination of an appeal, all the jurisdiction of the High Court of Justice. Cf. Hartshorne, Courts and Procedure, England and New Jersey , 125, 131, 171 (1905). In England the Court of Appeal, pursuant to the Judicature Act (see Order 58, Rule 4), and similarly the Court of Criminal Appeal, pursuant to the Criminal Appeal Act 1907, § 9 (b) (Criminal Appeal Rules (1908), Rule 40), have a discretionary power to take evidence by oral examination or otherwise, subject to certain regulations which need not concern us. 26 Halsbury's Laws of England 121 (2 nd ed.); 9 Id. 271. Further see Pound, Appellate Procedure in Civil Cases 303, 368, 387 (1941); Pound's Note on the present subject, 56 Harv. L. Rev. 1313; Rusling v. Rusling , 36 N.J. Eq. 603, 605 (E. & A. 1883); Personette v. Johnson , 40 N.J. Eq. 173 (Prerog. 1885); 5 C.J.S., Appeal and Error , § 1523, p. 244; 2 C.J.S., Admiralty , § 186, p. 316; and the interesting case of Ballurio v. Castellini , 27 N.J. Super. 113 (App. Div. 1953).
It might be noted that in Goddard v. Kelly , 27 N.J. Super. 517 (App. Div. 1953), the taking of testimony before this Part was authorized, though ultimately found unnecessary. In that, an election case, the election was so near, there was
no time to send the case back for testimony on the narrow issue involved.
So, taking the simple and expeditious course here, we ourselves heard the witnesses presented, namely, the assistant prosecutor and the defendant's attorney below. The former's allegedly improper remark came in his summation, while speaking on the failure of the defendant, Benjamin Ferrell, to take the stand. He was saying "What does he (the defendant) have to hide?" There was objection. The court overruled it, and the assistant prosecutor repeated the question. He, then turning halfway from the jury so as to look at defendant's attorney, said to the latter: " If you step out in the hall, I will tell you why the defendant did not take the stand."
The insinuations that go with this gross remark are patent. The following cases of other jurisdictions, set forth illustratively, hold it a reversible matter for the prosecutor to insinuate, to the prejudice of the defendant, knowledge of facts, not revealed in the evidence. Commonwealth v. Shoemaker , 240 Pa. 255, 87 A. 684 (Sup. Ct. 1913); State v. Lenzner , 338 Mo. 903, 92 S.W. 2 d 895 (Sup. Ct. 1939); King v. State , 98 Tex. Cr. R. 81, 263 S.W. 281 (Ct. Crim. App. 1924); cf. State v. Susan , 152 Wash. 365, 278 P. 149 (Sup. Ct. 1929). Indeed a vague challenging insinuation of unlimited import uttered by the officer there to represent the State, may be far more damaging than an allusion to some specific fact not in the record, which is a serious enough matter.
Here there was neither objection to the assistant prosecutor's remark, nor request that the court direct the jury to disregard it. The court did charge: "* * * You cannot in any way take into consideration * * * any colloquy that there might have been between counsel * * *." But there were a number of these colloquies, and it can hardly be contended that the influence of the remark mentioned was removed by so general an instruction.
A line of cases in this State, dealing with prejudicial remarks of the prosecutor, refused to ...