McLaughlin, Staley and Van Dusen, Circuit Judges.
Appellant was convicted in the state court of breaking and entering with intent to steal, receiving stolen property and possessing burglary tools. His conviction was affirmed on appeal to the New Jersey Supreme Court and the United States Supreme Court denied certiorari. This proceeding is an appeal from the denial by the District Court of appellant's application for a writ of habeas corpus.
The basic question before us is whether appellant in effect testified on his own behalf at his trial and so justified comment by the trial judge in his charge that defendant had failed to deny other major evidence against him.
Two people were indicted for the robbery involved, one Belardo and appellant. Belardo pleaded guilty and was a trial witness on behalf of appellant. He testified that he alone committed the robbery and that Fioravanti did not take any part in it. The robbery with its subsequent events occurred during the late night of July 19, 1962 and early morning of July 20, 1962. At the trial the state presented impressive evidence that appellant and Belardo committed the offense. Appellant did not take the witness stand. There was police testimony that appellant's automobile had been under surveillance the night of the robbery. Following the latter, appellant and Belardo in appellant's automobile were arrested. The bundles which they had been seen putting into the car contained the proceeds of the robbery and burglar tools. The police at that time took possession of the trousers appellant was then wearing. There was evidence that the particles found on them were identical to paint and safe lining from the safe which had been robbed. The trousers were marked into evidence. The trial took place almost two years after the crime. The police officer who had identified the trousers was examined very carefully by defense counsel regarding appellant's trial appearance as compared to how he looked on the night of the robbery. A series of leading questions were asked as follows:
"Q. Does Fioravanti look about the same now as he did at that time?
A. Without the glasses, his hair was mussed up a little bit.
Q. But his build is about the same, is it not?
A. I can't tell with that jacket on. That night he had a dark T-shirt, black and white T-shirt on, I have to see him without the jacket to really tell.
Mr. Frankel: (To Mr. Fioravanti) Do you want to stand up for a minute and take your coat off?
The Witness: From all appearances he looks the same as he did that night.
Q. From all appearances he looks the same? Thank you. (Tr. 157a)."
The above, as is frankly stated in appellant's brief, was in deliberate preparation for the defense maneuver which came later:
"As previously noted, defense counsel elicited testimony from a prosecution witness that petitioner, from all appearances, looked the same at the trial as he did the night of the arrest. (Tr. 157a). Having adduced evidence of constancy of girth, petitioner ...