Clapp, Jayne and Hughes. Hughes, J.A.D. (concurring).
Defendant was convicted of armed robbery. Two questions are raised by his appeal, first, whether the verdict was against the weight of the evidence and, second, whether error was committed in connection with that portion of the charge to the jury, which deals with the failure of the defendant to take the stand.
The first question may be disposed of shortly. There is no basis whatever for setting aside the verdict on the ground that it is against the weight of the evidence. We concur entirely in the opinion of Judge HUGHES on the point.
The second question is raised by the following portion of the court's charge to the jury:
"Now, this defendant, like all persons charged with crime under our law, has certain basic constitutional rights that attach and belong to every person living under our Constitution. He is presumed to be innocent, and that presumption rests with him unless and until the jury by their verdict find him guilty. The burden of proof is on the State. The State makes the charge and the State, under our law, has the burden to establish guilt by proof that is known as proof beyond a reasonable doubt.
Now, this defendant did not take the stand in his own defense. When the State's case rested, the defense rested. The defendant had a perfect right under the constitutional law of our state to testify in his defense, but he chose not to do so. And there is a principle of law that is applicable to a situation of that kind which I will read to you. It is as follows:
'When facts concerning the acts of the accused are testified to, which prove or tend to prove his guilt, and he, by his oath can deny them, his failure to testify raises a strong presumption that he cannot truthfully deny those facts.'"
No objection was taken to the charge, but defendant claims that the court committed plain errors and that we therefore may notice them. R.R. 1:5-1(a).
In this case it seems not to be disputed but that the State adduced proof of inculpatory facts which were within the accused's personal knowledge and which he could by his own testimony have denied. Under such circumstances the court may instruct the jury that the accused's failure to testify gives rise to an inference, which they are permitted to accept or reject, namely, that he could not truthfully deny those facts. As was observed in State v. O'Leary , 25 N.J. 104, 116 (1957), the decisions sometimes state that the failure of the defendant to testify gives rise to a presumption. But they do not use that term in its technical sense. Technically a presumption "compels the particular conclusion in the absence of evidence contra "; and in the absence of such evidence, it requires the court to withdraw the presumed facts from the jury's consideration. Cf. In re Blake's Will , 21 N.J. 50, 58 (1956). Indeed, under our law a presumption technically is not to be weighed by the jury; it is for the use of the trial court in determining (as we have said) whether to withdraw certain issues from the jury. Flanagan v. Equitable Life Assur. Soc. of U.S. , 14 N.J. 309, 313 (1954). We think, cf. State v. O'Leary, supra , that the decisions, referred to, use the term "presumption" rather in the sense of inference. In re Blake's Will, supra. However, there is no plain error in the charge in this respect. Cf. State v. O'Leary, supra.
The defendant's counsel argues that plain error was committed by the court when it failed to charge "that the defendant has a right not to be a witness in his own behalf." That defendant has such a right or privilege is, we think, implicit in the charge and in the very conduct of the trial. In the charge the court said that defendant "chose" not to take the stand; moreover it allowed the case to proceed and to be submitted to the jury without calling him to the stand. Surely the jury must have supposed that he was within his rights in not testifying.
Next, defendant contends that the court committed plain error in omitting to charge "that his failure to be a witness in his own behalf is no presumption of guilt and does
not erase the presumption of innocence." It is elementary that the presumption of innocence arising upon a criminal trial is in truth merely a way of expressing the familiar rule that the State has the burden of establishing the defendant's guilt by proof beyond a reasonable doubt. But the presumption does serve this important additional purpose, namely, that it cautions the jury that they must expel from their minds any suspicion they might attach to the defendant by reason of the fact that he has been indicted. See further 9 Wigmore, Evidence (3 d ed.), § 2511. It seems to us not to have been plain error for the court to have failed to have included in its charge a statement that any inference arising from defendant's failure to testify does not erase the presumption of innocence. It will be observed that the court instructed the jury that the presumption of innocence rests with the defendant unless and until the jury by their verdict find him guilty, and (particularly in portions of the charge not quoted above) it instructed them as to the heavy burden of proof cast upon the State. In the face of these instructions, the jury could not have supposed that because of the defendant's failure to take the stand, he was presumed guilty.
HUGHES, J.A.D. (concurring).
Our age-old concept of the presumption of innocence, however its specific status may be viewed from the standpoint of legal nicety (9 Wigmore, Evidence (3 d ed. 1940), § 2511), should never become less than a living organism of the criminal law. It is my concern, perhaps unneedful, for its certain preservation in the bustle of modernity, that impels the filing of this opinion, concurring in the result reached by my esteemed colleagues.
The appellant was convicted after jury trial of armed robbery in violation of the statute, N.J.S. 2 A:141-1 and N.J.S. 2 A:151-5, and sentences thereunder having been imposed (cf. State v. Cianci , 18 N.J. 191 (1955)), he brings this appeal in forma pauperis pursuant ...