
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. EDWARD SAVAGE, PLAINTIFF IN ERROR.
    Argued April 14, 1910 —
    Decided June 20, 1910.
    Where the record presented to the court upon a strict return to a writ of error, to review the conviction of defendant for homicide, shows that when arraigned he refused to plead, and that the court thereupon ordered a plea of not guilty to be entered in his behalf — Held, proper under the fifty-eighth section of the Criminal Procedure act which provides for entering such plea “where any person indicted as aforesaid shall refuse to plead' or answer to such indictment.”
    On error to Hudson Comity Oyer and Terminer.
    Eor the state, Pierre, P. Garren, prosecutor of the pleas.
    For the defendant, James D. Manning, Herbert E. Davis and Traverse A. Spraggins.
    
   The opinion of the court was delivered by

Minturn, J.

This defendant having been indicted by the grand jury of Hudson county for the crime of murder, and being called upon to plead before the Oyer, according to the record before us, refused to answer or plead, -whereupon the court ordered that a plea of not guilty be entered, and upon that plea ho was subsequently tried and convicted of murder in the first degree.

The record before us upon this writ of error presents a strict return to the writ, and not a certified case in conformity with the one hundred and thirty-sixth section of the act regulating proceedings in criminal cases (Pamph. L. 1898, p. 915), so that the inquiry presented here is not whether in the language of that section “Hie plaintiff in error, on the trial below, suffered manifest wrong or injury,” but whether the record by the hill of exceptions properly and sufficiently presents the questions argued by counsel.

An inspection of the record requires a negative answer to this inquiry, for we find no bill of exceptions; and where an exception was taken it is not signed and sealed so as to be the proper subject of consideration by this court. Pickett v. United States, 216 U. S. 456; Storm v. United States, 94 Id. 76.

Nevertheless, in favorem vitae we have considered the questions raised by defendant’s counsel upon these exceptions, as though they had been properly presented for our consideration.

It is alleged as error for reversal that the defendant, when called upon to plead, stood mute, and that thereby the duty was imposed upon the court not of trying the question of his guilt under the indictment, but of ascertaining in the language of the fifty-eighth section of the Criminal Procedure act whether he “standeth mute obstinately and on purpose or by the pi'ovidence and act of God.” This statute is a reflection of the common law as outlined by Blackstone, which, he informs us, provided that “If he (the prisoner) says nothing, the court ought ex officio to impanel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex visiiatione I)ei.” 4 Bl. Com. 324. This procedure was subsequently enacted into English law, from which we doubtless have enacted it as part of our statute law. Stat. 7 & 8 Geo. IV., ch. 28. A recital of the history and application of this interesting chapter of English criminal law will serve no useful purpose at this time, but a perusal of the following cases will elucidate its application here: 21 Am. & Eng. Encycl. L. 240; State v. Ward, 48 Ark. 36; United States v. Borger, 19 Blatchf. 249. It will suffice here to say that this record presents the defendant not as standing mute, but as refusing to plead to the indictment, whereupon the court ordered a plea of not guilty to be entered under the concluding provision of the fifty-eighth section of the Criminal Procedure act, viz.: “Where the person indicted as aforesaid shall refuse to plead or answer such indictment.”

The status of the defendant before the trial court, so far as this record informs us, by which we are limited in our consideration oí the question, is that o£ a prisoner who refused to plead, and the court therefore property ordered a plea of not guilty entered in his behalf.

The remaining errors alleged for reversal are those of trial procedure: Dr. Kinley, for the state, made an examination of the defendant during his confinement in the county jail, and it was objected that as this examination was made without the defendant’s consent, it was involuntary, and could not have been legalty ordered. Eor aught that appears in the case, excepting the inference which may be drawn from'the physician’s testimony, the examination was a necessary precaution to the trial of the defendant, for the purpose of property informing the state as to the mental condition of the defendant, before the trouble and expense of a trial would be undertaken; and from this aspect it was a perfectly proper proceeding upon the part of the prosecutor and has received judicial approval in State v. Miller, 42 Vroom 527. But here again we find the record absolutely destitute of a single exception upon which the subject can be legalty presented for our consideration.

The same may be said of the objection taken to the testimony of Lee Thompson,, the admission of which furnishes defendant with another objection, upon the ground that the testimony admitted bore no relation to the question at issue. The court, upon defendant’s objection, decided to admit the testimony “for the present,” the purpose of the court doubtless being to strike it out upon proper motion unless subsequently connected with the question at issue. We must assume that it was thus connected and made to bear some relation to the corpus delicti, because nowhere in the record does it appear that the defendant subsequently adverted to it, or, as would have been his proper course, moved to strike it out upon the ground that it had not been connected and was therefore irrelevant. The court’s refusal to do so would have furnished the basis for a bill of exceptions, but no exception of any kind appears in the record upon this question, and we must assume, therefore, that it was properly admitted.

Other questions mooted at the trial were discussed in the prosecutor’s brief, but are not referred to in the defendant’s brief. Nevertheless our consideration of them leads us to the conclusion that they are without merit or substance, even if they had been properly presented bj exception upon a record otherwise complete.

No error appearing in the record, the judgment of conviction is affirmed.

For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Trenchaed, Parker, Bergen, Vooritees, Minturn,' Bogert, Vredenburgh, Vroom, Gray, Dill, CONGDON, JJ. 15.

For reversal — None.  