Ex Parte Caruso.

• Decision Date: 09 May 1944
• Citation: 131 N.J.L. 505,37 A.2d 277
• Parties: Ex parte CARUSO.
• Court: New Jersey Supreme Court

131 N.J.L. 505

37 A.2d 277

Ex parte CARUSO.

Supreme Court of New Jersey.

May 9, 1944.

Proceedings in the matter of the application of Paulo (Paul) Caruso for a writ of habeas corpus.

Writ discharged.

December term, 1943, before PORTER, J.

Peter P. Walsh, Jr., of Trenton, for petitioner.

John J. Breslin, Jr., Pros. of the Pleas, of Hackensack (William B. Mehler, Asst. Pros. of the Pleas, of Hackensack, of counsel), for the State.

PORTER, Justice.

Paulo (Paul) Caruso was indicted by the Bergen County Grand Jury at the December 1941 Term on two counts. The first count charged him with the crime of assault with intent to rob on April 5, 1941. The second count charged that he had been convicted on three separate occasions prior to April 5, 1941, of high misdemeanors. Each of such crimes and the dates of conviction were specified, and it was further alleged as a fact that he was an habitual criminal. He entered a plea of not guilty to the indictment, was tried in the Bergen County Court of Quarter Sessions on February 24, 1942, and was convicted by the verdict of a petit jury on both counts. He was thereupon sentenced to imprisonment for the term of his natural life. It also appears that Caruso had been indicted by the Bergen County Grand Jury at the September Term, 1941, for the crime of robbery, assault and the carrying of a concealed weapon; that he entered a plea of not guilty, was tried in the Bergen County Court of Quarter Sessions and was convicted of robbery on January 5, 1942. He was sentenced on January 16, 1942, to life imprisonment. This indictment did not charge multiple offenses, but the sentence apparently was based on the fact that this was a fourth offense. No writs of error were sued out to test the legality of either of these convictions. Caruso petitioned this Court on November 30, 1943, for the issuance of a writ of habeas corpus, which petition was granted and a writ allowed. It is well settled that a writ of habeas corpus may not be used to review the legality of a conviction in lieu of a writ of error. In re Rose, 122 N.J.L. 507, 6 A.2d 388; In re Davis, 107 N.J.Eq. 160, 152 A. 188; In re Tremper, 126 N.J.Eq. 276, 8 A.2d 279. We may not therefore review the legality of either of these convictions on this writ of habeas corpus and do not pass upon the points raised on this petition attacking the legality of the proceedings. That may only be done on writ of error.

However, the point is made that the statute known as the Habitual Criminal Act, R.S. 2:103-10, as amended by P.L. 1940, c. 219, p. 889, N.J.S.A. 2:103-10, under which Caruso was sentenced to life imprisonment, is void because in violation of the State and Federal constitutions. If that be so, the trial court was without jurisdiction to impose a sentence prescribed, because the statute would be void, and such a sentence would be without lawful authority and of no effect. A judgment of conviction based upon an unconstitutional statute may be impeached and attacked collaterally in habeas corpus proceedings. In re Rose, supra. But we conclude that the point is without merit. The validity of this statute is the only question properly raised by these proceedings, and the answer to that question is dispositive of the matter. This statute vests discretionary power in the trial court to impose life sentence on an...