Decided: February 8, 1943.
STATE OF NEW JERSEY, DEFENDANT IN ERROR,
MAX R. WECKER, PLAINTIFF IN ERROR
On error to the Hudson County Court of Quarter Sessions.
For the plaintiff in error, Abram S. Freedman.
For the state, Daniel O'Regan, Prosecutor of the Pleas, and Frank G. Schlosser, Assistant Prosecutor.
Before Brogan, Chief Justice, and Justices Parker and Porter.
[129 NJL Page 425]
This is a strict writ of error to a judgment of conviction of embezzlement. The case was tried before Honorable James R. Erwin, who died before the bill of exceptions could be signed, and consequently it is authenticated by the agreement of the prosecutor of the pleas and the attorney of the defendant below, as provided by R.S. 2:195-15. No complete transcript of the proceedings at the trial is returned, but we have before us merely two extracts from that transcript. As to each of these the claim is, that certain evidence contained therein ought not to have been admitted by the court or, to put it perhaps more accurately, ought not to have been introduced by the prosecutor.
There were three motions for a mistrial, all of which the court denied and error is assigned on that denial. As to these it is sufficient to say that the settled rule is that the direction
[129 NJL Page 426]
of a mistrial in a criminal case rests in the sound discretion of the court and that a strict bill of exceptions will not lie to its refusal. State v. Steneck, 118 N.J.L. 268; affirmed, 120 Id. 188.
With regard to the fourth, the matter that is laid before us consists of a question by the prosecuting attorney to one of the witnesses on direct examination referring back to some of the testimony taken earlier in the case. This was objected to as irrelevant. The court allowed it and an exception was entered, but there is nothing before us to show either that the question was answered at all or, if answered, that it contained anything legally harmful to the defendant.
No harmful error having been made to appear or being ascertainable from the state of the case, the judgment under review will be affirmed.