For reversal -- Justices Jacobs, Hall, Sullivan, Pashman and Clifford and Judges Conford and Collester. For affirmance -- None. The opinion of the Court was delivered by Pashman, J.
Defendants were found guilty by a jury of robbery and assault with intent to commit sodomy. On appeal, in an unreported opinion the Appellate Division reversed the convictions on the ground that the trial judge committed error in his charge to the jury. We granted the State's petition for certification. 64 N.J. 151 (1973).
The State contends that the Appellate Division erred when it held that the trial court's charge and supplemental charge
to the jury were confusing and left the jury with the impression that it could not find one or the other of defendants guilty without finding both defendants guilty on the several charges.
The proofs offered by the State showed that defendant Smith induced complainant to accompany him to a hotel upon the promise of a party in progress. When they arrived, they found Freeman and a third man, but little evidence of any festivities. Disenchanted with his new-found friends, complainant attempted to leave but was "smacked around" by defendants. Complainant was thrown on a bed, pinioned, and the act of sodomy was committed upon his person. Smith took $13.50 from the victim, and Freeman was seen handling some of the money a short while later.
When certain his captors had dozed off, the complainant retrieved his clothes and quickly made his retreat. A prompt report of the episode brought police immediately to the scene, and defendants were apprehended.
Defense argues that the trial judge did not clearly inform the jury that it could return different verdicts for each or both of the codefendants and as to each of the charges being tried. Of course, such an error would prejudice the right to a fair trial. A jury mistaken on the law in this regard, if persuaded of the innocence or guilt of one defendant, might return a verdict of which it was unsure against a codefendant to make certain that justice be done in the one definite instance. State v. Carroll, 51 N.J. 102, 106 (1968); State v. Wesler, 137 N.J.L. 311, 317 (Sup. Ct. 1948), aff'd 1 N.J. 58 (1948). And see State v. Sturchio, 127 N.J.L. 366 (Sup. Ct. 1941).
The danger of prejudice by association underlies all joint trials. To defeat the peril, judges take great pains to charge the individual nature of offenses jointly tried. State v. Aiello, 91 N.J. Super. 457, 466 (App. Div.), certif. den. 48 N.J. 138 (1966), cert. den. 388 U.S. 913, 87 S. Ct. 2106, 18 L. Ed. 2 d 1351 (1967). Whether or not the jury
labored under the misapprehension that the same verdict had to be returned for both defendants is the question before this Court. We believe the trial judge succeeded in communicating the law to the jury, although admittedly not with the neat precision with which it might have been accomplished.
In assaying the measure of success in the jury charge, we bear in mind the established principle that the reviewing court does not excise and examine in isolation those statements alleged to be obscure or ambiguous, but looks to the charge as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Laws, 50 N.J. 159, 176 (1967), cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2 ...