Decided: February 14, 1949.
THE STATE OF NEW JERSEY, RESPONDENT,
LEWIS R. HOGAN, DEFENDANT-APPELLANT
On appeal from the former New Jersey Supreme Court.
For affirmance: Chief Justice Vanderbilt and Justices Heher, Oliphant and Ackerson. For reversal: Justice Wachenfeld.
[1 NJ Page 376]
We are in accord with the opinion of Mr. Justice Burling, speaking for the former Supreme Court, with this qualification. With respect to the introduction of neutralization testimony the opinion states "The control of this examination is within the discretion of the trial court," citing State v. D'Adame, 84 N.J.L. 386 (E. & A. 1913); State v. Kysilka, 85 N.J.L. 712 (E. & A. 1913) and State v. Guida, 118 N.J.L. 289 (Sup. Ct. 1937), aff'd 119 N.J.L. 464 (E. & A. 1937).
While the admission and extent of neutralization testimony is discretionary with the court such discretion is not of an arbitrary or absolute character but a legal discretion. It relates to the question of whether, under the particular facts and circumstances of the case, justice requires that the evidence be admitted. As said by Lord Mansfield legal discretion means "sound discretion, guided by law," and not by whim or humor. LaBell v. Quasdorf, 116 N.J.L. 368 (Sup. Ct. 1936).
The judgment of the former Supreme Court is affirmed.