For reversal -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
Defendant, Charles Lanzo, was convicted of bookmaking (N.J.S. 2A:112-3) and of possession of lottery slips (N.J.S. 2A:121-3). He appealed, and we certified the matter before argument in the Appellate Division.
The defendant did not testify at the trial. The trial court, in the course of its charge to the jury, told them:
"Now, members of the jury, the defendant in this case did not take the stand. I charge you that under our law a defendant cannot be compelled to testify, but he is competent to testify and has the right to testify. His failure to be a witness in his own behalf raises no presumption of guilt, but if facts are testified to which tend to prove his guilt, which facts he could by his oath deny, his failure to testify in his own behalf raises a permissible inference -- and you will remember my definition of inference -- that he could not truthfully deny those facts."
The charge was authorized by this Court's opinion in State v. Corby, 28 N.J. 107, 117 (1958) and by N.J.S. 2A:84A-17(4).*fn1
After the trial in the present case, the United States Supreme Court, in Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2 d 653 (1964), overruled prior decisions by holding that the Fifth Amendment's privilege against self-incrimination is applicable to the states through the due process clause of the Fourteenth Amendment. At the oral argument before us, the defendant contended that Malloy prohibits the comment which Corby and the statute authorized. Thereafter, on April 23, 1965, the United States Supreme Court held "that the Fifth Amendment, in its direct application to the federal government and its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. State of California, 85 S. Ct. 1229 (1965). As we read the opinion in Griffin, it clearly makes our rule in Corby and the statute which codified that rule unconstitutional.
The State, however, points out that the strategy of the defense throughout the trial was to persuade the jury that the evidence offered by the State was self-contradictory and absurd, and to imply that there was no point in the defense offering evidence to refute it. It argues that this constituted an explanation of the defendant's failure to testify which justified the court's comment. We disagree. It is clear from the record that the defendant was merely attempting to persuade the jury that the testimony of the State's witnesses was not sufficiently credible to warrant the jury in finding guilt beyond a reasonable doubt. This amounts to a comment on the evidence, not an explanation of defendant's failure to testify.
We held in State v. (James) Smith, 37 N.J. 481, cert. denied 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2 d 1055 (1962), that the rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), would be applied retroactively to cases then pending or on appeal. We see no reason why Griffin should not be likewise applied here. The conviction must therefore be reversed and a new trial
ordered. We, of course, express no opinion as to the applicability of Griffin to a collateral attack.
As the case must be retried, it is appropriate for us to consider defendant's remaining allegations of error. The defendant contends, on several grounds, that an unsigned written statement allegedly taken from him was erroneously admitted into evidence.
On February 7, 1961, at about 1:15 P.M., two police officers entered a luncheonette owned by the defendant's wife. The defendant was apparently in charge. The officers told him that they had received a bookmaking complaint and obtained his permission to search his person and the premises. A search of his person revealed an Armstrong sheet for that day. The telephone rang on two occasions, and when one of the officers, Detective Acocella, answered, both callers asked for "Charlie" and placed horse race bets. While at the telephone the detective found three slips of paper wedged between the telephone and the wall. The defendant immediately admitted that the slips were his. At the trial the detective identified two of these slips as horse race bets and the third as a lottery bet. At about ...