Conford, Kilkenny and Leonard.
Defendant Jay Kintner and one John Joseph Brennan were jointly indicted for grand larceny (N.J.S. 2 A:119-2). The charge specified that on May 13, 1967, in the Township of Green Brook, in Somerset County, they did feloniously steal, take and drive away a 1963 Rambler sedan, of the value of $550, the personal property of Harry Wallman.
Kintner was tried alone before a jury, by whose verdict he was found guilty. He was sentenced to the New Jersey Reformatory at Bordentown for an indeterminate term, to run
consecutively to the sentence he was serving. Brennan had pleaded guilty to the offense but had not been sentenced at the time of Kintner's trial. He testified at that trial as a witness for defendant.
This is a direct appeal by Kintner alone from the judgment of conviction. He advances three points in his argument for a reversal. We shall consider them in the order set forth in defendant's brief.
Defendant contends that the trial court's instructions to the jury were misleading in that they required the jury to scrutinize carefully the testimony of Brennan who testified for defendant. In referring to Brennan's having testified, the trial judge charged the jury
"* * * to give this testimony the careful scrutiny because here is a man who has been convicted, by his plea of guilty to the charge, and remains to be sentenced. This, of course, is entirely within your judgment. Whether you feel that under the circumstances, after giving careful scrutiny, that Mr. Brennan was lying is one thing. On the other hand, you may feel that he had nothing to gain here and was not lying, and, in fact, might be penalized by lying. This is another thing, but I leave it entirely to you, Members of the Jury, for your acceptance."
Defense counsel objected to the charge, claiming that the trial judge "laid excess stress on the conviction of a crime, about his credibility," and that the trial court "never really told them [the jurors] that the fact that a person has been convicted of a crime doesn't mean you shouldn't believe him. You can still believe him if you want to * * *." Defense counsel made no specific objection to the trial court's use of the words "careful scrutiny."
Ordinarily, the need to give "careful scrutiny" to the testimony of an accomplice applies when he testifies for the State and can hope to gain some benefit for himself, such as a lighter penalty, if he has not already been sentenced, or a pardon, reduction in the sentence, or even a dismissal of a
pending charge. State v. Spruill, 16 N.J. 73, 79-80 (1954); State v. Begyn, 34 N.J. 35, 54 (1961). But these reasons do not exist for careful scrutiny when the witness testifies as a witness for a defendant. As a defense witness, the accomplice cannot hope for any special consideration from the State. For that reason the question of his credibility is the same as with any other witness. See State v. Gardner, 51 N.J. 444, 460-461 (1968), to the effect ...