Opinion
Submitted February 15, 1929 —
Decided May 20, 1929.
The omission of a party to an action to testify to facts within his knowledge raises a presumption against his claim.
On appeal from the Supreme Court, whose per curiam is printed in 6 N.J. Mis. R. 483.
For the appellant, Alfred A. Stein.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion per curiam in the Supreme Court.
It should be remarked, however, that the testimony returned with the transcript does not disclose that the rules of the police department forbidding gross neglect of duty were served upon the prosecutor of the certiorari — the prosecutor-appellant here; nevertheless, he was present on his trial, represented by counsel who participated in the proceedings, but the prosecutor did not see fit to testify himself or to call any witnesses in his defense, and having been a police officer of the township of Millburn for upwards of ten years, he, in the circumstances, is quite conclusively chargeable with notice that there were rules governing the police department, and also of what they consisted. It is quite inconceivable that a policeman should be ignorant of the rules of the department under which he is called upon to act. He knew the facts but deliberately refused to testify to them. His conviction was, therefore, sustained by competent evidence, direct and presumptive.
The omission of a party to an action to testify to facts or to produce evidence in explanation, except where the evidence is not peculiarly within his power, or is merely cumulative, raises a presumption against his claims. Law of Presumptive Evidence, Lawson p. 153, and cases cited. See, also, Johnson v. McKenna, 76 N.J. Eq. 217 .
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, BLACK, CAMPBELL, LLOYD, CASE, BODINE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 13.
For reversal — None.