
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CHARLES D. LAYTON, PLAINTIFF IN ERROR.
    Submitted May 17, 1940
    Decided July 27, 1940.
    Before Bkogan, Chief Justice, and Justices Paekek and Pekskie.
    For the plaintiff in error, Howard M. Lawn and Vincent J. McCue (Thomas P. Doremus, of counsel).
    For the state, Edward F. Juska.
    
   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. 8. 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 Atl. Rep. 757, 759; affirmed, 108 N. J. L. 552; 158 Atl. Rep. 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 Mr. Layton and left lying undeposited for considerable periods of time in the borough hall?”

There were two indictments tried. One was in one count, the other contained sixteen counts. The first related to embezzlement of cash; the second to checks delivered to defendant in payment of taxes, &c. Each of the sixteen counts related to a separate check. When the question quoted above was objected to, counsel stated the following reason for allowing it: “Mr. Lawn: For the purpose of the record, the reason is that by that question we offer to prove that every one of those checks were duly endorsed and left lying there, and that because all of them were duly endorsed and lying there, of necessity the seventeen specific checks, part of that group, were left lying there, and for that reason we believe that question relevant, and that was the custom of Mr. Lay-ton in making deposits.” The point here made, as we understand it, is that the answer would have shown that (quoting the brief) “persons other than defendant had access to these seventeen [sixteen?] specified checks.” The argument goes no farther, but if the intended inference is that the other persons may have purloined the checks after defendant had endorsed them and left them lying around, we think it sufficient to say that no proof of any such circumstance was offered, and that every check (and all were in evidence) showed the endorsement by defendant, and no other except the stamped endorsement of the bank that cashed it, as testified by the several tellers.

The fourth and fifth points bear upon a phase of the case which involves a claim of insanity at some time. The period during which the sixteen checks were cashed appears to have begun about February 5th, 1938, and to have ended about October 4th, 1938. Naturally, if the defendant was insane at that time, or part of it, and the character of his insanity was such as to deprive him of the ability to distinguish between right and wrong, the fact of such insanity would be a defense. This, of course, is elementary law. But we do not find in the case, nor is there pointed out in the brief, any direct evidence whatever, to indicate insanity of the defendant during that period. It does appear that on October 9th, 1939, about a month before the trial, some representation of insanity was made to the court, which directed that the defendant be placed at the State Hospital in Trenton for observation and examination to determine whether or not defendant was so insane as to be unable to co-operate with counsel and stand trial. (We use the language of the brief.) A jury was empaneled on October 25th and, after a trial, returned a verdict that defendant was then sane; and accordingly the trial proceeded on November 8th.

The fourth point reads as follows: “The court erred in refusing to permit a lay witness to testify to observed facts from which the jury could infer that the defendant was insane.”

The question asked of the witness Zauber, an accountant, was whether when inspecting the books of the borough on October 5th, 1939, in preparation for the defense he “observed Mr. Layton’s actions.” It will be noted that this was a year after the last alleged embezzlement, was shortly before the defendant was sent to Trenton for observation, and about three weeks before the jury rendered a verdict for sanity. The question was avowedly asked for the purpose of indicating insanity in 1938 while the checks were being cashed and the proceeds appropriated by the defendant. Manifestly, the accountant did not pretend to be an expert on insanity; and we think that the date of the examination of the books by Zauber was so remote from the dates of the various embezzlements, a year or more, that the question was properly excluded as too remote.

The fifth point relates to the testimony of a Dr. McGee who had examined the defendant at the State Hospital in October of 1939, shortly before the trial. Certain questions were asked of him by the defense counsel with a view of obtaining his expert opinion as to whether the defendant was insane a year or more before, viz., from Pebruary to October, 1938. But these questions were all predicated on the fact of the examination made by the witness at the State Hospital in 1939 in connection with certain records relating to the same period in 1939, which records were not produced or tendered, nor was there any evidence whatever of the contents of the same. Pour different questions on this phase of the matter were asked and overruled, and each is the basis of an assignment of error and cause for reversal. A careful examination of these questions and the colloquy between the court and counsel at the time shows clearly, however, and indeed counsel conceded, that the opinion he desired to draw from the witness was to be predicated not onty on the personal examination made by the witness, but also upon his reading of the hospital records just alluded to. Hnder the circumstances the exclusion of these questions was, in our judgment, clearly correct.

This seems to dispose of all the assignments and causes argued in the brief.

The judgment of conviction is affirmed.  