The opinion
Walker, Chancellor
(dissenting). My dissent from the opinion of the majority of the court in this case is based upon the construction of section 136 of the Criminal Procedure act. Pamph. L. 1898, p. 915. The majority of the court reached the conclusion that the judgment of guilty rendered against the defendant in the Hudson Quarter Sessions should be reversed because it was harmful error for the trial, judge to have excluded the defendant’s offer of a written statement prepared by the supervising principal of schools of the town of West Hew York which showed that Hannis, the school principal, who was up for re-election, had the poorest rating of all the school principals in the town — the defence being that Merkle voted against Hannis by reason of that rating and not because be had solicited a bribe from Hannis which the latter refused to give him. I am in entire agreement with all that *688 the Supreme Court said in its opinion relating to this officer and its rejection. To use the words of the Supreme Court:
"It is difficult to understand upon what ground this line of testimony was excluded, for, manifestly, such testimony was both competent and relevant upon the question of the motive which induced Merkle to vote against the reappointment of Hannis.”
But the harmfulness of the ruling complained of, as a practical fact, was done avray with by the admission of Hannis on the witness-stand, that his rating as a principal was very poor, and the defendant himself, who was a member of the board of education of the town of West New York, testified that the rating of Hannis was the poorest of any of the principals in the town, and there was no contradiction of this testimony. Therefore, the case went to the jury with the rating of Hannis proved as an uneontroverted fact.
It is true that the objection to the court’s exclusion of the written report resides in a bill of exceptions, and, had the case been brought here on a strict bill of exceptions, it must necessarily have resulted in a reversal of the judgment below. But the entire record of the proceedings had upon the trial was returned by the plaintiff with his writ of error bringing up the bill of exceptions signed and sealed in the cause, in pursuance of section 136 of the Criminal Procedure act above mentioned. In this posture of a criminal cause, the statute provides:
"Ou the argument such entire record shall be considered and adjudged by the appellate court; and if it appear from such record that the plaintiff in error on the trial below suffered manifest wrong or injury, either in the admission or rejection of testimonjf, whether objection was made thereto or not, or in the charge of the court, or in the denial of any matter by the court, which was a matter of discretion, whether a bill of exceptions was settled, signed and sealed thereto, or error assigned thereon or not, the appellate court shall remedy such wrong or injury and give judgment accordingly, and order a new trial.”
*689 Mow, by tlie very language of section 136. when the entire record of the proceedings had in a criminal cause is brought up for review, the “'entire record shall he considered and adjudged by the appellate court.” Erom the kind of review thus required, the bill of exceptions, in my judgment, is placed on a level with the specification of causes in the record relied upon for relief or reversal, as provided in section 137. In fact, the latter section goes further and provides that the plaintiff in error “shall not be confined to his hill of exceptions.”
Two kinds of review in criminal cases conceded ly exist in this state — one a review on a strict bill of exceptions signed and sealed, and the other on the entire record of the proceedings had upon the trial of the plaintiff in error; but each should not exist independently of the other on one and the same review.
The entire record cannot be brought up without the aid of at least one exception signed and sealed. The one hundred and thirty-sixth section says so in plain terms; and it and the succeeding section (137) make provisions concerning one, and only one, kind of review. It is anomalous indeed i f a defendant in a criminal case, on removing the entire record of the proceedings to an appellate court, is unable to obtain relief on a perfectly good cause for reversal which appears in the record, as to which, however, he took no exception on the trial and only claimed he was entitled to relief under section 136, but is able, on that same record, to demand of the appellate court a reversal of the judgment against him, because there resides in his strict bill of exceptions a valid objection, to some proceeding in Hie court below, while elsewhere in the record it palpably appears that he suffered no wrong or injury whatever in respect to the matter of which he complains.
If any adjudication in this state decides that this dual review of a judgment in a criminal case may be had in the appellate court, when the entire record of the proceedings in the trial court is removed there under section 136, it is State v. Lyons, 41 Vroom 635 , where Chancellor Magic; speaking for this court (at p. 636), remarked that the legislation contained in section 136 was not designed to supersede the review under *690 assignments'of error, bnt, on the contrary, permitted relief when it appeared from the record that the plaintiff in error had suffered manifest wrong or injury whether objection was made thereto or not, and whether a bill of exceptions was settled, signed and sealed thereto and error assigned thereon or not. There is certainly nothing in. this statement of the learned Chancellor to the effect that a dual review may be had in causes taken up under section 136. Of course, the act under discussion does not operate to nullify the exceptions, taken on the trial; it permits them to- stand and be reviewed along with the causes assigned for reversal. This is borne out by the expression “vShether objection was made thereto or not” —the plain meaning being that if objection were made then just as certainly the relief afforded by section 136 is to be granted as though the objection had not been taken at the trial and was only specified as a cause for reversal under section 137. iÑTor does the further language of the learned Chancellor (on page 639) to the effect that the purpose of the act is to permit a review for errors assigned and for matters appearing in the record disclosing that manifest wrong has been done to the plaintiff! by the course taken at the trial, malee it necessary to save to the defendant the advantage of a strict bill of exceptions brought up with the entire record of the case, when that record discloses that no wrong or injury was done to the defendant on the trial in the court below.
The foregoing observations lead to the inevitable conclusion that the Supreme Court in filie case sub judice rightly decided that having resorted to a review of the entire proceedings had upon the trial, “the defendant is, by the express words of the statute, entitled to a reversal of the judgment against him only when fit appears’ that he has 'suffered manifest wrong or injur}'’ by some of such rulings on evidence, or denials of matter of discretion, or by something contained in the charge. The question, therefore, which these causes of reversal present for determination, is not whether the rulings on evidence complained of were erroneous, but whether it appears, from an examination of the whole proceedings had at the trial, that the defendant suffered manifest wrong or injury thereby.’ *691 * * * The excluded evidence was, therefore, merely cumulative, and it is not perceived how it can be logically said that the defendant- has suffered manifest wrong or injury by the refusal to admit testimony which merely supports the existence of an uncon Uoverted fact that has been proved by other evidence in the case.’'"'
Mr. Justice Tren chard authorizes me to say that he is in entire accord with the views above expressed. In our opinion, the judgment of the court below should be affirmed.
For affirmance — The Chancellor, Trenohard, White, JJ. 3.
For reversal — Garrison, Yoorhebs, Mentors, Kalisoh, Bogebt, Yredenbtjrgu, Congdon, Treacy, JJ. 8.