State v. Callahan

• Decision Date: 14 June 1909
• Citation: 77 N.J.L. 685,73 A. 235
• Parties: STATE v. CALLAHAN.
• Court: New Jersey Supreme Court

73 A. 235

77 N.J.L. 685

STATE

v. CALLAHAN.

Court of Errors and Appeals of New Jersey.

June 14, 1909.

(Syllabus by the Court.)

Error to Supreme Court.

James E. Callahan was convicted of crime, and from a judgment of the Supreme Court (69 Atl. 957), affirming the conviction, he brings error. Affirmed.

Robert Adrain, for plaintiff in error.

George Berdine, for the State.

SWAYZE, J. 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 (69 Atl. 957); 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 his own behalf, and charged them as follows, using almost the exact language of the opinion of the Supreme Court in Parker v. State, 61 N. J. Law, 308, at page 313, 39 Atl. 651, at page 653: "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 oath as a witness as a fact if it 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, 73 N. J. Law, 683, 64 Atl. 1073, 1135. In State v. Wines, 65 N. J. Law, at page 35, 46 Atl. 702, the Supreme Court distinctly said that it was proper for the judge to refer to the failure of the defendants to testify and to call witnesses to establish the defense by way of an alibi, as circumstances in the case. The Wines Case was a case of circumstantial evidence, and the defendants were called upon to deny only the facts which made against them and of the falsity of which they must have had knowledge. We think that so far the judge was entirely correct. We see no reason why the principle adopted by us in the Twining Case does not justify the judge in commenting upon the failure of the defendant to deny any inculpatory facts which may be within his knowledge. What was condemned by the Supreme Court in the Wines Case was the language of the trial judge in dealing with the force and effect of the failure of the defendants to testify. The force and effect of the failure of the defendant to deny circumstances which tend to prove guilt only by inference is necessarily much less than the effect of his failure to deny direct testimony of a guilty act, as in the Parker Case. The judge in the Wines Case told the jury that the evidence of guilt was irresistible, and that no instruction of the court would prevent the inference from being drawn by honest jurymen. As to that, Chief Justice Depue properly said: "In the present case there was no direct evidence to connect the accused with the crime charged. It was circumstantial evidence to be submitted properly to...