Sullivan, Foley and Leonard. Foley, J.A.D. (dissenting).
Defendant was tried by jury and convicted of armed robbery. He prosecutes this appeal on the ground that it was plain error and manifestly prejudicial to defendant for the trial judge to have given the accomplice charge to the jury.
It is unnecessary to detail the State's proofs except to note that a prima facie case of defendant's participation in a four-man armed robbery was established. Indeed, defendant was shot by the police during the course of the robbery.
Defendant's story was that on the day in question he had been drinking and had taken some goof balls. He then visited a night club with three friends, Herman Fisher, Eugene Coleman and Melvin Spence, and had some more drinks. He began to feel ill and went outside and fell asleep in the back seat of Spence's car. The next thing he knew he woke up in the car and heard bells ringing (apparently the burglar alarm). He got out of the car and walked over to a lighted building, entered and saw his three friends inside. Defendant heard shots and then he was wounded by two bullets. He denied having taken any part in the robbery.
Fisher, who had pleaded guilty to the robbery and been sentenced, testified in support of defendant's story. Defendant had also subpoenaed Coleman, who was in State's Prison, having pleaded guilty to the robbery and been sentenced.
Coleman apparently was unwilling to testify because he was trying to reopen his case. As a result, defendant decided not to call him as a witness.
However, the State decided to call Coleman as a rebuttal witness and, over Coleman's objection and a threat by the trial judge of contempt proceedings if he refused to testify, Coleman was sworn as a State's witness. Coleman's story was that defendant "was like bombed out" and had been left in the car while the other three committed the robbery.
In his charge to the jury the trial judge stated:
"Two individuals, Eugene Coleman and, I believe it was one Herman Fisher, have testified to facts which show some involvement on their part in the criminal situation out of which this indictment and this trial of the defendant arose. One testified for the State and one testified for the defendant. The law in this State is that a jury may convict one charged of crime upon the testimony of one who claims to have participated in the criminal event out of which the indictment and trial of the defendant arose, if in the judgment of the jury the testimony of such witness is entirely credible and worthy of belief. However, the testimony of such witnesses must be given close scrutiny in order to determine whether he or they have any special interest in the outcome of the case and whether the testimony of such person was influenced by the strong motive of hope or expectation of favorable treatment or reward or by any feelings of revenge or reprisal or by any feelings of loyalty or friendship to the one charged with the crime. One who admits his participation in a criminal offense, tainted as he is with confessed criminality, is often influenced in his testimony by the hope or expectation of favorable treatment or reward or by feelings of revenge or reprisal.
The basic question with respect to the testimony of such witnesses is one of interest in the event or case. The interest of a witness in the event or the result of the trial may be shown to affect his credibility or believability and aid you in determining the weight to be given to the testimony of such a witness.
You should carefully scrutinize all of the testimony of the witnesses, Herman Fisher and Eugene Coleman, and assess it in light of their interest, if any, in the outcome of the case as you determine what weight to accord to that testimony."
Defendant's attorney made no objection to the charge, saying he was "completely satisfied" with it. However, it is now asserted that the portion of the charge quoted above was "plain ...