Caprio v. Mother Superior of Home of Good Shepherd of City of Newark

• Decision Date: 20 December 1917
• Citation: 102 A. 459,91 N.J.Law 14
• Parties: CAPRIO. v. MOTHER SUPERIOR OF HOME OF GOOD SHEPHERD OF CITY OF NEWARK.
• Court: New Jersey Supreme Court

102 A. 459

91 N.J.Law 14

CAPRIO.

v. MOTHER SUPERIOR OF HOME OF GOOD SHEPHERD OF CITY OF NEWARK.

Supreme Court of New Jersey.

Dec. 20, 1917.

(Syllabus by the Court.)

Application by Mollie Monetti Caprio for a writ of habeas corpus against the Mother Superior of the Home of Good Shepherd of the City of Newark, N. J. Petitioner ordered discharged from defendant's custody.

By the return to the writ it appears that on February 1, 1915, the petitioner, having been adjudged guilty upon an indictment for perjury, was sentenced to the State Home for Girls; that on August 29, 1917, said judgment having been affirmed by the Court of Errors and Appeals and the record remitted, the petitioner was remanded to the State Home for Girls to serve her original sentence; that on November 5, 1917, the court on its own motion vacated the judgment and suspended the sentence thereon, and resentenced the defendant as follows:

"On motion of the prosecutor of the pleas, the court orders the sheriff to set the prisoner to the bar for her resentence; she being accordingly set to the bar, the court doth thereupon order and adjudge that the prisoner Mollie Monetti be committed to Home of Good Shepherd upon this conviction until December 20, 1917, and then be released upon probation for a period of three years, conditioned to pay the sum of 25 cents a week for said period, and be subject to the rules and regulations and further order of the court."

This is the resentence relied upon to justify the restraint of the petitioner in the Home of Good Shepherd.

Argued November Term, 1917, before GARRISON, BERGEN, and BLACK, JJ.

Anthony R. Finelli, of Newark, for petitioner.

Wilbur A. Mott, of Newark, for the State.

GARRISON, J. (after stating the facts as above). The resentence under which the petitioner is restrained of her liberty was pronounced after the expiration of the term at which judgment was entered and after the sentence pronounced on such judgment had gone into operation and the punishment imposed by it had been partly borne. The effect of such resentence was to arrest the running of the original sentence when within a few days of its expiration, and to substitute therefor the commitment of the petitioner into the present custody for six weeks at the expiration of which a three-year term of probation was to begin, during each week of which she was to pay a stated sum of money. From this recital it is evident that the resentence under which the petitioner is now in custody increased the duration and extent of the punishment that was originally imposed, and was in effect a new and different sentence. The question is whether a resentence having this effect may lawfully be pronounced after the expiration of the term at which judgment was entered and after the original sentence had gone into operation and been partly borne.

The authority that is relied upon for such resentence is the amendment to the Criminal Procedure Act approved March 16, 1914, which reads as follows:

"55. 1. After conviction and sentence the court before which such conviction was had, upon the application of the defendant for a new trial shall have power, at any time during the term in which the judgment is entered, to open and vacate the same and grant a new trial, and discharge the defendant from custody upon bail pending such new trial; or may, at any time, either during the term in which the judgment is entered, or after the term, upon the application of the defendant or on its own motion, open and vacate the judgment entered on any conviction and resentence the defendant as right and justice may seem to require and discharge the defendant from custody upon bail pending such resentence."

"2. This act shall include convictions heretofore had in any court." P. L. 1914, p. 34.

The concrete question is whether this statute authorizes the sentence under review. A broader inquiry is whether such statute deals at all with resentences that increase the duration or extent of the punishment imposed by a previous sentence that had gone into operation. That such purpose was not expressed by section 55 of the Revision of 1898 (p. 885), which is the parent act, is clear from the construction of its language.

Regarding the old law, the mischief and the remedy, the mischief was that a motion for a new trial could not be made after judgment, to remedy which hardship section 55 by its first clause extended the right of the defendant to apply for a new trial during the term. Separated from this remedial provision by a semicolon and introduced by the alternative conjunction "or" is the provision for resentence upon the application of the defendant or upon the court's own motion. These words, "the court's own motion," are the only ones in the...