Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D. Conford, S.j.a.d. (dissenting).
Defendant Copeland and one Pinson were convicted by a jury upon an indictment charging entering a building of Thomas Gordon with intent to steal. Only Copeland appeals.
Gordon operated a luncheonette in the building which is located on the corner of Academy and Wickliffe Streets,
Newark, and designated as 246 Academy Street. Copeland lived a half-block away at 268 Academy Street; Pinson lived less than a mile away.
On March 10, 1964 Gordon closed and locked his store at 11:15 P.M., his usual closing hour. He left the lights on. He went home, and then returned to the store about a half-hour later, intending to remain overnight. When he arrived he saw two men in the store. The taller of the two, identified by him as Copeland, was standing "behind the counter by the cash register." The shorter of the two, whom he identified as Pinson and as a person previously known by him, was standing at the entrance door of the store. Gordon yelled: "What are you doing in there?" He then went to the back of the building. The two men, joined by a third, ran from the back door and jumped over a rear yard fence.
Gordon then ran back to Academy Street, turned the corner of Wickliffe Street and ran to West Market Street, which is a block away. At that point the three men appeared upon the scene. One, unidentified, went west on West Market Street. Copeland and Pinson turned into Wickliffe or Wilsey Street and entered a poolroom. As they passed him Gordon said, "I recognize you as being in my place." There was no reply.
Gordon then telephoned the police who responded in a patrol car. Gordon entered the car and shortly thereafter Copeland and Pinson came from a nearby tavern, where they were arrested by the police officers, after Gordon identified them as the men who had been in his store.
Gordon returned to the store and found that nothing had been taken, but observed that the double door at the rear of the premises had been "broken all to pieces, to splinters."
Pinson testified that he and Copeland were at Pinson's home until about 11:30 P.M., when they left to go to Copeland's home. They stopped there briefly and then went to the poolroom, and almost immediately thereafter to the tavern. He denied that they had been in the store. Copeland did not testify.
Defendant's argument on this appeal may be divided into two separate and unrelated points. Defendant first contends that the court erred in charging as follows:
"* * * Now, there is evidence that the defendants on trial fled from the scene. If you believe the testimony beyond a reasonable doubt that a defendant, fearing an accusation would be made against him for the crime here charged, took refuge in flight for the purpose of evading that accusation, then you may consider that flight in connection with all the other evidence and testimony relating to that particular defendant. The flight of a defendant, members of the jury, after the commission of a crime, if unexplained is evidence from which the jury is at liberty to draw some inference of a consciousness of guilt." (Emphasis added)
It is well settled that an unexplained flight from the scene of the crime is a circumstance tending to prove consciousness of guilt. State v. Petrolia, 45 N.J. Super. 230, 233-234 (App. Div. 1957); State v. Centalonza, 18 N.J. Super. 154, 161 (App. Div. 1952). The nub of defendant's argument is that the words "if unexplained" called upon defendant to testify in explanation of the flight, and that since he had elected not to testify, the allusion in the charge impaired his constitutional rights contrary to State v. Lanzo, 44 N.J. 560 (1965). In that case our Supreme Court, following Griffin v. State of California, 380 U.S. 609 (1965), ...