Burke, Application of, 67870

• Decision Date: 09 March 1955
• Docket Number: No. 67870,67870
• Citation: 112 A.2d 807,34 N.J.Super. 460
• Parties: In the Matter of the Application of Maurice BURKE for writ of habeas corpus. . Law Division. New Jersey
• Court: New Jersey County Court

Page 460

34 N.J.Super. 460

112 A.2d 807

In the Matter of the Application of Maurice BURKE for writ of habeas corpus.

No. 67870.

Hudson County Court.

Law Division. New Jersey.

March 9, 1955.

Frank J. V. Gimino, Asst. Pros., Jersey City, for the State (Frederick T. Law, Pros. of Hudson County, Kearny, attorney).

Abraham Miller, Jersey City, for defendant.

The opinion of the court was delivered by

MARIANO, J.S.C. (temporarily assigned).

Maurice Burke, while incarcerated in the Hudson County Jail, filed what is considered by me to be a petition for writ of Habeas corpus. I allowed the same. Subsequently, Abraham Miller, a member of the Bar of the State of New Jersey, practicing in Hudson County, was appointed to represent Mr. Burke. He thereafter conducted an investigation, and subsequently the matter was set down for oral hearing on Monday, March 7, 1955.

The facts established during the said hearing are as follows:

About 2 a.m. on the morning of October 14, 1954 Mrs. Burke, the wife of the petitioner, called the police department of Jersey City and complained that her husband was intoxicated and also causing a disturbance by attempting to forcibly enter their apartment. After the arrival of the police officers Mrs. Burke was requested to present herself at the municipal court clerk's office at the hour of 9 a.m. of the same day. Promptly at the appointed hour she appeared and signed a formal complaint charging her husband with violating N.J.S. 2A:170--30, N.J.S.A. By some unexplained circumstance, the petitioner was also present in the courtroom, and upon the matter being called by the magistrate, both husband and wife proceeded to approach the bench. Petitioner was not served with a summons nor a complaint.

After the magistrate heard the testimony of the wife, her husband, the present petitioner, upon being asked if he had anything to say, let loose with a tirade of insulting and unspeakable language, immediately after which he was sentenced to serve a term of one year in the Hudson County jail. From the lips of the witnesses for the State and the petitioner, it is learned that Mr. Burke, as he stood before the court, was under the influence of intoxicating liquor. Some of the terms used to manifest the intoxicated condition of the petitioner were as follows:

'There still was the effect of drink in him';

'He was in pretty good shape';

'He had signs of drink in him when he appeared before you:' 'He did';

'But he had signs of drink on him during the trial; is that right?' 'He certainly did.'

The petitioner challenges his conviction by the use of the writ of Habeas corpus, and properly so. He alleges that his constitutional rights were violated in that he was not afforded and opportunity to be heard in his own defense, nor an opportunity to plead to the charge, and other material allegations.

Under such circumstances, the petitioner is entitled to be afforded the protection and the remedy provided for by the use of the writ of Habeas corpus, for in the matter of State v. Cynkowski, 10 N.J. 571, at pages 575 and 576, 92 A.2d 782, at page 784 (1952), Mr. Justice Jacobs, speaking for our present Supreme Court, stated as follows:

'In fulfillment of basic democratic philosophies our judicial structure allows an appeal as of right to every convicted defendant. His appeal must, however, be taken in the manner and within the reasonable time allowed, formerly by statute and now by rule of court. See Rule 1:2--5. If he neglects to appeal within time he loses his right thereafter to attach his conviction except by Habeas corpus on the limited ground that the trial court lacked jurisdiction and the conviction was therefore void. See In re Rose, 122 N.J.L. 507, 6 A.2d 388 (Sup.Ct.1939); In re Graham, 13 N.J.Super. 449, 80 A.2d 641 (App.Div.1951), certification denied 7 N.J. 582, 83 A.2d 381 (1951), certiorari denied Graham v. Warden, New Jersey State Prison, 342 U.S. 930, 72 S.Ct. 372, 96 L.Ed. 692 (1952); State v. Zee, 16 N.J.Super. 171, 84 A.2d 29 (App.Div.1951), certiorari denied 343 U.S. 931, 72 S.Ct. 766, 96 L.Ed. 1340 (1952). If the defendant was convicted upon a proper charge by a competent court after fair trial or upon a plea of guilty or Non vult fairly entered, no jurisdictional defect would appear; if, however, the defendant was never afforded opportunity for fair trial or his plea was entered under circumstances which rendered its acceptance fundamentally unfair or shocking to a sense of justice, the resulting conviction would violate the due process clause (Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948), and would be beyond the court's jurisdiction in its current sense. See Johnson v. Zerbst, 304 U.S. 458, 467, 58 S.Ct. 1019, 82 L.Ed. 1461, 1468 (1938).'...