McGeehan, Bigelow and Jayne. Bigelow, J.A.D. (dissenting).
The defendant is confined in the New Jersey State Prison and prosecutes this appeal pro se.
The record before us discloses that he was apprehended on September 4, 1951, in consequence of two criminal complaints upon which he was held for the action of the grand jury by the magistrate's court of the City of Passaic. Having waived indictment and trial by jury, two accusations were presented to the Passaic County Court charging him with the commission on September 4, 1951, in the City of Passaic, of an atrocious assault and battery and of malicious mischief. He entered a plea of not guilty. Counsel was assigned to defend him. The trial was conducted on September 21, 1951, before a judge of the Passaic County Court, and the defendant was found guilty of the commission of both offenses. He was sentenced on October 11, 1951.
On March 1, 1952, he filed a notice of appeal which, following a recital of his conviction and sentence of imprisonment, states: "do hereby give notice of appeal to be taken to the Appellate Division of the Honorable Superior Court of
New Jersey. Appeal is from the denial of the Honorable Judge Alexander MacLeod on February 29, 1952, whereby he denied relief of Appellant's motion for a new trial."
The record does not reveal that any motion for a new trial was ever made and the county prosecutor assures us that he never had any notice or knowledge of such an application. At most it can only be conjectured that there may have been, as occasionally occurs in similar situations, some correspondence between the prisoner and the judge concerning the subject of a reconsideration of the conviction. But see In re Kershner , 9 N.J. 471 (1952). Moreover it is not evident that the motion for a new trial was timely. Vide, Rule 2:7-11.
However, in the circumstances we have given the notice of appeal a liberal construction and we have reviewed the entire record.
In response to the defendant's stated reasons for appellate relief we need only indicate that obviously the defendant waived a trial by jury, was represented by counsel at the trial and voluntarily entrusted the determination of the evidential facts and their legitimately derivative inferences to the trial judge. There was some evidence to be found in the testimony of the witness Howard Mitchell that the defendant utilized some "unknown instrument." "It looked like he had something in his hand." Additionally, the characteristics of the scars alongside of the left eye of the witness were exhibited to the judge.
The defendant's defensive explanation was that he had no recollection of having committed the acts alleged in the accusations. The limitation of the scope and expansion of testimony is a matter within the discretionary province of the trial judge. Bradley v. D.E. Cleary Co. , 86 N.J.L. 338, 341 (E. & A. 1914); Testa v. Metropolitan Life Ins. Co. , 136 N.J.L. 9, 12 (Sup. Ct. 1947). We fail to discover in the record any mistaken exercise of that judicial authority.
Failing to perceive any error in the transcript of the proceedings which prejudicially affected the substantial
rights of the defendant, the judgments of guilty rendered on both ...