Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
The Middlesex County grand jury returned a two-count indictment charging defendant with breaking and entering with intent to steal and with larceny of more than $200. N.J.S. 2A:94-1 and 2A:119-2. He was tried to a jury, found guilty and sentenced on each count to a State Prison term of 3-6 years, the sentences to run concurrently. The trial court denied defendant's application for a new trial. We granted leave to appeal as an indigent, assigned counsel, and made available the trial transcript. Defendant has been granted bail since the filing of the appeal.
Defendant urges several grounds for reversal, but we need deal with only one.
Defendant was tried with one Ungar, who testified in his own defense. Defendant did not take the stand, stating out of the presence of the jury that he preferred not to testify. In his summation the prosecuting attorney told the jury that the reason defendant did not take the stand to deny the story of one of the State's principal witnesses was because "he couldn't deny every shred of evidence against him in this case." He went on to say, "If you were innocent, wouldn't you have taken the stand to deny it? Is that too much to ask of an innocent man?"
In his charge the trial judge said that it was the constitutional right of a defendant in a criminal trial not to be compelled to testify -- the decision was entirely his. He then instructed the jury that it could draw inferences from his failure to testify and to explain or deny facts within his knowledge. However, he cautioned the jury that such failure did not create a presumption of guilt or relieve the prosecution of its burden of establishing guilt beyond a reasonable doubt.
The State confesses error as to this feature of the case.
Defendant was tried in February 1963, sentenced on April 1 and resentenced on April 26, 1963. Having timely filed a notice of appeal on June 20, 1963, he then moved for leave to proceed in forma pauperis, assignment of counsel and a free trial transcript. We granted the applications and on October 30, 1963 assigned Alfred J. Hill, Esquire, to represent defendant. We relieved Mr. Hill of his assignment soon after, for good cause shown, and assigned Edward J. Mahler, Esquire, in his stead.
Late in February 1964 it came to the attention of this court that defendant had filed a motion for a new trial on October 21, 1963 and that Irving G. Verosloff, Esquire, had been assigned to represent him. We called the attention of the trial judge and Mr. Mahler to the applicability of R.R. 1:4-1 and 2:4-1, noting that supervision and control of proceedings on appeal are in the appellate court from the time the appeal is taken, except as otherwise provided by the rules. We also noted R.R. 3:7-11, which provides:
"* * * A motion for a new trial based on the ground of newly discovered evidence may be made at any time, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 10 days after verdict of finding of guilty, or within such further time as the court may fix during the 10-day period." (Italics ours)
Acting on this information, Mr. Mahler moved to dismiss the appeal without prejudice and to remand the case to the County Court for a hearing on the motion for a new trial. We entered an accordant order on March 23, 1964.
The county judge proceeded to hear the motion for a new trial and denied it on May 27, 1964. Defendant, now acting pro se because Mr. Mahler had discharged his assignment, immediately filed a motion "to resume prosecution of dismissed appeal." In effect, he sought reinstatement of his original appeal and the reassignment of Mr. Mahler as his counsel. We denied the ...