77 N.J.L. 685 | N.J. | 1909
The opinion of the court was delivered by
A majority of the court think that the judgment in this case should be affirmed for the reasons stated in the opinion of Mr. Justice Bergen in the Supreme Court, but in view of the difference of opinion in this court, it is thought well to add to what he said. The substantial complaint made by the plaintiff in error is that the learned judge of the Quarter Sessions, in his charge, called the attention of the jury to the failure of the defendant to go upon the stand as a witness in Iris own behalf, and charged them as follows, using almost the exact language of the opinion of the Supreme Court in Parker v. State, 32 Vroom 308 (at p. 313): “When the accused is upon trial and the evidence tends to establish facts, which, if true, would be conclusive of his guilt of the charge against him, and he can disprove them by his own oath as a witness, if the fact be not true, then his silence would justify a strong inference that he could not deny the charge.” This rule has been sustained in this court in State v. Twining, 44 Id. 683. In State v. Wines, 36 Id. (at p. 35), the Supreme Court distinctly said that it was proper for the judge to refer to the failure of
The judgment should he affirmed.