For affirmance -- Chief Justice Weintraub and Justices Francis, Proctor, Hall and Haneman. For reversal -- None.
[46 NJ Page 255] Defendant was tried on 12 indictments containing a total of 74 counts, involving sundry charges arising out of substantial swindles. Four counts were dismissed at trial. The jury convicted defendant on 67 of the remaining 70 counts. The sentences imposed aggregated 10 to 20 years in State Prison. We certified defendant's appeal before argument in the Appellate Division.
The first issue relates to comments upon defendant's failure to take the stand.
The trial started on May 13, 1964. The jury was charged by the trial court on June 15. It was on that day that Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2 d 653 (1964), was handed down. Defendant not having taken the stand, the trial court commented upon that failure in accordance with the then settled view in our State, saying that defendant's failure to testify did not raise a presumption of guilt and that the presumption of innocence nonetheless obtained, but that the jury may infer defendant could not truthfully deny those incriminating facts in the testimony which he could meet by his own oath.
Upon learning the content of Malloy the prosecutor, apprehending that that decision might lead to a disapproval in constitutional terms of the instruction here given, asked the trial court to recall the jury and to instruct it to draw no inference whatever from defendant's failure to testify. The trial judge acceded to the prosecutor's request, charging the jury in part as follows:
"This portion of the charge that I have just referred to shall be disregarded in every respect, and not be applied by you as the law in this case. You will consider it as not charged and likewise I instruct you that any and all comments made by the Prosecutor either during the course of the trial or in argument, or in summation in regard to the failure of the defendant to testify, are also stricken and must be disregarded, and I give you the following charge which shall govern your deliberations:
'This defendant as are all defendants in criminal cases is presumed to be innocent, and this presumption of innocence stays with the defendant throughout the trial, and until you, the members of the jury, reach a verdict. The failure of the defendant to take the witness stand and testify in his own behalf does not create any presumption against him, and you are charged that you must not permit the fact that he failed to take the stand to weigh in the slightest degree against the defendant, nor shall this fact enter into the discussions or deliberations of the jury in any manner.'"
After the trial of the within case we held that Malloy v. Hogan and Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2 d 106 (1965), must be read to proscribe the instruction as initially given the jury in this matter notwithstanding that the instruction did not treat silence as evidence of guilt and limited its impact to the evaluation of evidence actually in the case, and indeed to direct evidence which a defendant could dispute on his own oath. We have held, too, that upon a direct appeal (compare Tehan v. Shott, 86 S. Ct. 459, Jan. 19, 1966) a defendant will be accorded the benefit of the new rule but on the basis of the case as tried and not upon a speculation as to how a defendant might have gone about his defense had he anticipated Malloy and Griffin. See State v. Fioravanti, 46 N.J. 109 (1965); State v. Davis, 45 N.J. 195 (1965); State v. Aviles, 45 N.J. 152 (1965); State v. Lanzo, 44 N.J. 560 (1965); State v. Garvin, 44 N.J. 268 (1965).
The trial was lengthy, as we have already noted. The jury received the case for deliberation at 5:05 P.M. on June 15. The deliberations were recessed at 11:00 P.M. Presumably the jurors took some time to eat. They reconvened at 9:30 A.M. on June 16. At 11:02 A.M. the prosecutor requested the court to recharge the jury. At 11:20 A.M. the jury was instructed to suspend deliberations. The jury resumed deliberations at 1:58 P.M., after receiving further instructions quoted above. The verdicts were returned at 5:00 P.M., and as we have already noted the jury acquitted defendant on three of the charges.
We are satisfied that upon the total circumstances of this case there is no reasonable basis for reversal, and we so conclude upon the following factors.
(1) Defendant, an informed, articulate, and intelligent man, who had been represented before trial by counsel of his own selection, chose to try the case himself. We gather that he consulted with his own counsel during the trial, and defendant's performance reveals some tutoring in ...