On error to the Monmouth Quarter Sessions.
For the plaintiff in error, Howard M. Lawn and Vincent J. McCue (Thomas P. Doremus, of counsel).
For the state, Edward F. Juska.
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PARKER, J. The defendant below, plaintiff in error, was convicted of embezzlement in his capacity as collector and treasurer of the borough of Deal in Monmouth county (see N.J.S.A. 2:124-1) and brings this writ of error. The case is submitted on briefs without oral argument. Five points are made, and will be disposed of in order.
The first is that the court overruled a challenge to the array. The challenge, allegedly in writing but not printed, was based on certain alleged "remarks" by the prosecutor in the presence of the "general panel." But as we read the state of the case, there is nothing therein which indicates that the "remarks" were made in the presence of any of the jurors who sat in the case. The remarks were made on October 31st; a new general panel came into service November 6th; and the trial began November 8th, on which day the challenge to the array was made, and the trial jury was sworn. This challenge necessarily referred to the new general panel. Gardner v. State, 55 N.J.L. 17, 18. We need not stop to consider the question whether any "remarks" by the prosecutor in the presence of the general panel would legally support a challenge to the array; the opinion in the Gardner case (at p. 18), reads: "A challenge to the array is an exception to the whole body of jurors upon the panel summoned and returned for service at the term, and is grounded upon some default of the sheriff or other officer making the return, in drawing or returning the jurors, or for partiality or misconduct in performing the duties."
The action of the court in overruling the challenge was manifestly correct.
Apart from this, we think on the authority of State v. Shupe, 86 N.J.L. 410, and for the reasons there stated, it was not prejudicial error to overrule the challenge.
The second point as stated in the brief, is that "the court erred in refusing to permit questions as to whether or not the defendant had been bonded." The argument is that because defendant had failed to give bond as required by statute, he was not the borough collector and hence not amenable to punishment under section 167 of the Crimes act of 1898,
now N.J.S.A. 2:124-1. It is not denied, and indeed the proof shows, that defendant was duly appointed borough collector, and it is not suggested that he failed to take the required oath. Comp. Stat. 231, § 8; N.J.S.A. 40:46-19. At the very least, he was collector de facto, and the rule seems generally settled that "criminal responsibility of officers for violation of official duties extends to de facto, as well as de jure, officers." 46 C.J. 1062. This rule was treated by this court as a matter of course in State v. Redfield, 9 N.J. Mis. R. 751 (at p. 755); 155 A. 757, 759; affirmed, 108 N.J.L. 552; 158 A. 544. We consider that the point is without substance.
The next point challenges the exclusion of a question to the state witness Teunon, a certified accountant, who made an audit of the borough accounts. The question was as follows: "Q. Mr. Teunon, do you know whether from the period February 5th, 1938, through to October 4th, 1938, all checks received as payment for taxes in the borough of Deal were duly endorsed by ...