Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
Defendant appeals from his conviction by a jury finding him guilty of the crimes of atrocious assault and battery (N.J.S. 2 A:90-1) and assault with a dangerous weapon (N.J.S. 2 A:90-3).
The incident which brought about defendant's arrest and subsequent conviction arose from an altercation between defendant and one Eddie Still. Cleveland Rooks, the victim, was the only witness called by the State who could describe what had transpired. Rooks testified that on the morning of December 19, 1965 he had breakfast in an Atlantic City restaurant with his father, brother and Eddie Still. While they were in the restaurant Still became involved in an argument with the defendant and slapped his face. Still and
defendant then went outside and engaged in "body punching." When they returned to the restaurant the argument continued until defendant finally left. When Rooks subsequently went outside of the restaurant he saw Still hiding behind a parked car and defendant standing nearby holding a rifle which was pointed towards the ground. He heard defendant ask Still why he had slapped him in the face. Rooks, who was behind defendant grabbed him and tried to take the rifle away. During the scuffle for possession the rifle was discharged and Rooks sustained a bullet wound in his shoulder. Rooks testified that he had had no prior trouble with defendant and had not been threatened by him.
Defendant does not contend that the verdict of the jury was contrary to the weight of the evidence. He urges two grounds for reversal, namely, (1) the court erred in refusing to charge the jury that his failure to testify did not create any presumption of guilt, and (2) the court committed plain error by indirectly referring in its charge to defendant's failure to testify.
The request to charge submitted by defendant which the court refused to charge on the ground that it was improper was as follows:
"The defendant has a constitutional right not to testify if he so desires and the fact that he has not taken the witness stand [and] has exercised his constitutional right to refuse to testify as a witness in this case does not create any presumption against him. That is, the failure of the defendant Stanley Smith to take the stand and testify on his own behalf creates no presumption of guilt against him and you are not to draw any inference whatsoever that the accused is guilty merely by reason of the fact that he has failed to testify as a witness in his own behalf."
Defendant alleges that the court's refusal to so instruct the jury constituted prejudicial error requiring a reversal of the convictions. He contends that since the United States Supreme Court held in Griffin v. State of California,
380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2 d 106 (1965), that the guaranty against self-incrimination of the Fifth Amendment, made applicable to state prosecutions under the Fourteenth Amendment, forbids comment by the prosecution or instructions by the court that a defendant's failure to testify is evidence of guilt, he was entitled to an affirmative charge that the jury should indulge in no adverse presumption or inference from his failure to testify in his own behalf. He alleges that unless the jury was so instructed it would, of necessity, infer guilt from his failure to take the stand.
The precise question of whether a defendant in a state prosecution is entitled to have the jury so instructed when he requests it has not previously been dealt with by the United States Supreme Court or ...