87 N.J.L. 419 | N.J. | 1915
The opinion of the court was delivered by
The defendant was indicted and tried for burglary in entering the home of Senator Ackerman, in Plain-held, on the evening of January 3d, 1914, and removing there
These facts made up the state’s case and the case was sent to the jury without any substantive proof upon defendant’s part.
We are asked to reverse the conviction of guilt upon many grounds, the most -of which related to matters of procedure at the trial, and exceptions to the charge of the court. The two most serious questions in the case are those presenting the propriety of the admission of testimony concerning the finger prints and the reference by the court to the defendant’s failure to testify. The admission of the photographs of the finger prints upon the column of the house was proper under the proof. 2 Rice Ev. 1163.
We think the objection to the finger-print testimony is practically and conclusively dealt with by-the Court of Errors and Appeals in State v. Cerciello, 86 N. J. L. 309.
The same question was dealt with by the Court of Errors and'Appeals in State v. Miller, 71 N. J. L. 528.
Of course, the circumstances in the different cases as they arise cannot be expected to be alike, but the principle of law once settled, as we conceive it to be by the decisions referred to, determines the legal propriety of admitting testimony of the same general character.
We think it was competent, therefore, to admit a facsimile impression of the finger prints upon the post, for the purpose
Whether or not they were the same presented a question of fact for the jury to determine, in view of all the circumstances and the light thrown upon them by experts in that art.
It was not for the court to determine as a matter of lav/ that this testimony was useless and valueless in the examination of a legal inquiry which presented very little direct testimony upon the corpus delicti.
There was testimony in the case from which the jury might conclude that the defendant was in Plainfield with others on the day of the commission of the crime. The case thus presented was one of circumstantial evidence, but, standing upon those facts alone, there was sufficient proof, if the jury believed it. to warrant the conviction. This was accentuated by the defendant’s failure to testify in his own behalf.
The trial court referring to that aspect of the case 'instructed the jury that the defendant’s failure to testify in the face of the testimony adduced, by the state, tending to incriminate him, “’may be taken into consideration by you along with the other testimony in the case in arriving at your verdict.”
The court further instructed the jury that the defendant was not legally obliged to testify in behalf of himself. The defendant cites Parker v. State, 61 N. J. L. 308, and State v. Wines, 65 Id. 31, as authorities which uphold the failure of the defendant to take the stand in his own behalf as a right which cannot legally be the subject of comment or allusion by the trial court.
We think that whatever doubt existed as to the propriety of such a reference by the trial court, in a case dependent entirely upon the weight and value of circumstantial evidence, has been set at rest by the Court of Errors and Appeals in the case of State v. Callahan, 77 N. J. L. 685. In that case it was held, in an opinion by Mr. Justice Swayze, “that where the defendant fails to testify in his own behalf to deny inculpatory
We think that statement of the law presents the situation in the ease at bar. It was competent for defendant to deny his presence in Plainfield upon the day of the burglary, an incriminating factor of importance in the chain of evidence against him. His failure to do so left it open to the court under the Callahan ease to refer to the fact as a proper subject for consideration by the jury in weighing the probabilities presented by the facts.
Our examination of the remaining exceptions presented by the record has convinced us that they are without merit.
The judgment of conviction will therefore be affirmed.