State v. Kisik

• Decision Date: 19 May 1924
• Docket Number: No. 25.,25.
• Parties: STATE v. KISIK et al.
• Court: New Jersey Supreme Court

125 A. 239

STATE

v. KISIK et al.

No. 25.

Court of Errors and Appeals of New Jersey.

May 19, 1924.

(Syllabus by the Court.)

Error to Supreme Court.

Peter Kisik and another were convicted of attempt to commit robbery and of an attempt by false pretenses to get possession of a sum of money, and they bring error. Reversed for award of venire de novo.

Elmer W. Romine, of Morristown, for plaintiffs in error.

James H. Bolitho, Prosecutor of the pleas, of Dover, for defendant in error.

WALKER, Ch. The defendants were convicted in the Morris quarter sessions on an indictment which charged in the first count an attempt to commit robbery, and in the second an attempt by false pretenses to get possession of a sum of money, the property of a certain woman, with intent to cheat and defraud her of the same. They brought error into the Supreme Court, where the judgment was affirmed.

Every contention raised by defendants was decided adversely to them by the Supreme Court, and we are satisfied with that court's decision save in one particular. It is this: The eighth assignment of error is:

"Because the court charged the jury that as defendants did not take the stand in their own defense, the jury could place such importance on this as they saw fit, when by the law the jury were limited in the consideration of this circumstance."

The Supreme Court's deliverance upon this question was as follows:

."There was no error in calling attention to the fact that the defendants did not go upon the stand and testify in their own defense, and that the jury might give that fact consideration. State v. Callahap, 77 N. J. Law, 685, 73 Atl. 235."

This is correct as far as it goes, as the trial judge had a right to call attention to the fact that the defendants did not testify in their own behalf, and to say to the jury that they might give the fact consideration. The trouble is that the trial judge went much further and said that the jury could place such importance on the fact as they saw tit, which was erroneous. It is true, as contended for by defendant, that the jury were limited in the consideration of this circumstance. And they were limited to attributing to it a strong presumption of guilt only, not an unlimited presumption which might have attributed guilt to that fact alone.

In State v. Callahan the defendant, who was convicted of keeping a disorderly house, did not offer himself as a witness, and the court charged the jury in substance that where the evidence, if true, would be conclusive of the guilt of the accused, and he could disprove it by his own oath as a witness, then his silence would justify a strong inference that he could not deny the charge. And the Supreme Court said that it thought the charge correctly expressed the law adopted in this state, and that it was applicable to the facts of the case, citing Parker v. State, 61 N. J. Law, 308, 39 Atl. 651, and State v. Wines, 65 N. J. Law, 31, 46 Atl. 702. And this court in that case (State v. Callahan, 77 N. J. Law, 685, at page 686, 73 Atl. 235), commenting upon the language of the Parker Case, said that it, taken abstractly, correctly stated a logical conclusion; that no one could doubt that if the evidence tended to establish facts conclusive of defendant's guilt, which he can disprove by his own oath as a witness, if they are not true, his silence justifies a strong inference that he cannot deny the charge.

State v. Parker, supra (affirmed, this court, 62 N. J. Law, 801, 45 Atl. 1092, for the reasons given in the Supreme Court), is the leading case in this state on the question under consideration. There the Supreme Court held that when facts have been testified to by witnesses for the prosecution which, if true, established defendant's guilt, which facts concern the actions of defendant, and if not true may be disproved by him, his failure to offer himself as a witness may be considered and commented upon. And in the body of the opinion (61 N. J. Law, bottom of page 313, 39 Atl. 651) Chief Justice Magie, speaking for the Supreme Court, said that if the defendant can disprove the charge against him by his own oath as a witness, then his silence would justify a strong inference that he could not deny the charge. In State v. Wines, supra, there was no...