Ex parte Graham
| Decision Date | 28 November 1950 |
| Citation | 76 A.2d 848,10 N.J.Super. 422 |
| Parties | Ex parte GRAHAM. . Law Division |
| Court | New Jersey Superior Court |
Robert E. Dietz, Hightstown, for the petitioner.
Mario H. Volpe, Prosecutor of the Pleas, Mercer County, Trenton (Frank H. Lawton, First Assistant Prosecutor, Mercer County, Trenton, appearing), for the State.
The petitioner, David Tierson Graham, was convicted of the crime of incest with his infant daughter in the Mercer County Court of Quarter Sessions on September 22, 1947.
On October 3 of the same year, he was sentenced to the New Jersey State Prison for a term of not less than seven years nor more than ten years.
On the representation that he is illegally confined in the State Prison, petitioner sought and obtained his writ of habeas corpus on the 20th day of October, 1950, returnable November 20 of this year, on the single issue that he was not present at the time the jury rendered its verdict of guilty in open court.
The State, in its memorandum filed, 'disputes the factual basis for the application, and claims that the petitioner was present at the time the jury rendered its verdict'.
This court heard the testimony offered and being satisfied that the petitioner was not in court at the rendition of the verdict by the jury, remanded the petitioner to the Mercer County Jail for trial.
Thereafter, this court, on being advised that its determination would require a further consideration by appeal, the request for the filing by this court of a short memorandum to complete the record seems in order.
The testimony adduced at the bearing on the writ disclosed that the trial judge and petitioner's counsel were not present when the jury rendered its verdict.
The petitioner testified that he was not present, that he was in the County Jail and did not know the result until the next day when he was advised by certain individuals and by the reading of articles in the local newspapers.
The Clerk of the Court could not say that the defendant was present when the jury rendered its verdict and could not even determine from the minutes what time the jury brought in its verdict. One juror testified that she thought the petitioner was present when the verdict was rendered but 'could not swear' that this was the fact.
This may be said to be a fair recital of the testimony offered at the hearing on the writ.
It was argued by the State that a writ of habeas corpus can not perform the functions of a writ of error or appeal to review mere errors or irregularities of a court having jurisdiction of the person.
This court, of course, subscribes to this view and agrees that the rule as laid down in Re Tremper, 129 N.J.Eq. 274, 19 A.2d 342 (E. & A.1941) holds that the trial errors may not be reviewed on habeas corpus.
An opinion from this pen reiterating this rule has found its way in our reported cases in Re Hill, 2 N.J.Super. 598, 65 A.2d 146 (Law Div.1949).
Here is a situation apart from a consideration of mere trial errors. The facts disclose no waiver by the petitioner, no attempt to a consenting by the petitioner to a most...
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Ex parte Sabongy
...only the pleas and the sentences, the outstanding process calls upon the defendant to answer to the law. Ex parte Graham, 10 N.J.Super. 422, 76 A.2d 848 (Law.Div.1950), reversed on other grounds Ex parte Graham, 13 N.J.Super. 449, 80 A.2d 641 (App.Div.1951); 25 Am.Jur., Habeas Corpus, sec. ......
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...522, 53 A.2d 308, citing In re Rose, 122 N.J.L. 507, 6 A.2d 388, and the Davis and Tremper cases, supra.' Cf. In re Graham, 10 N.J.Super. 422, 424, 76 A.2d 848 (Law Div.1950). Although Janiec has litigated his convictions through several courts, this action, for the first time, raises quest......
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