Ex parte Hall

• Decision Date: 17 August 1922
• Docket Number: No. 51/369.,51/369.
• Citation: 118 A. 347
• Parties: Ex parte HALL.
• Court: New Jersey Court of Chancery

118 A. 347

Ex parte HALL.

No. 51/369.

Court of Chancery of New Jersey.

Aug. 17, 1922.

Habeas corpus on application of Albert Hall. Prisoner remanded.

Baches & Schroth, of Trenton, for petitioner.

George T. Vickers, of Jersey City, for the State.

BUCHANAN, V. C. This writ of habeas corpus brings up the legality of the confinement in the state prison of the petitioner Albert Hall. The petition sets forth that his confinement is under color of commitments from the Hudson county oyer and terminer on nine sentences or judgments on a corresponding number of indictments for embezzlement (numbered respectively 189, 331, 332, 333, 334, 335, 336, 337, and 338, December Term, 1918) each for a maximum term of 3 years and minimum of 1 year, and running consecutively, the term in respect of indictment No. 331 commencing at the expiration of the term in respect of indictment No. 189, and so on; that the petitioner has served the maximum term of the sentence under indictment No. 189, and has paid the costs of prosecution; that indictment No. 189 was for the embezzlement of $55,000, and the other eight indictments were for the embezzlement of eight separate sums together making up the $55,000 specified in the first indictment; that petitioner's further confinement or punishment for any of the eight embezzlements was and is invalid, unwarranted, and unjustifiable, as being a second or double punishment for a single offense, since each of the eight separate embezzlements of particular sums is comprised within and is a part of the offense of the embezzlement of the total aggregate sum of $55,000, for which offense he has already served the sentence imposed.

The original return to the writ set forth that petitioner was detained in custody by reason of nine commitments from the Hudson county quarter sessions, and annexed copies of the said commitments (which are copies of the sentences or judgments certified by the clerk of that court under seal). These commitments are in accordance with the allegations in the petition; that is to say, they are respectively on sentences on nine indictments for embezzlement numbered, respectively, 189 and 331 to 338, inclusive, December term, 1918, each sentence being for imprisonment at the state prison for a maximum of 3 years and a minimum of 1 year, and each (except the first), to commence on the expiration or satisfaction of the preceding sentence.

Justification for petitioner's confinement is obviously shown on the face of the return, as being under the sentence on the second indictment (No. 331), since a period of confinement equal to the term of imprisonment under the sentence on the first indictment (No. 189) has been served, and the term of imprisonment under the sentence on the second indictment was to commence at the end of the sentence on the first indictment.

We need not concern ourselves with any question as to the effect of the Indeterminate Sentence Act, P. L. 1911, p. 356, since (1) petitioner makes no claim thereunder; (2) the total minimum term under the sentences for the nine indictments has not expired or been served; and (3) it is of no importance whatever in the determination of the present issue whether petitioner be deemed to be now kept imprisoned under the sentence on the second indictment or under the sentence on any of the subsequent indictments.

Our statute (2 Comp. Stat p. 2639, § 2) provides that—

"Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree, unless such judgment or decree be founded upon contract * * *" shall not be entitled to prosecute the writ of habeas corpus.

The cause of petitioner's detention is shown to be by virtue of the final judgment or sentence of a court of criminal jurisdiction, to wit, the Hudson county quarter sessions. This is not denied by the petitioner; nor does he intimate that that court was not a court of competent jurisdiction to try the indictments in question, nor that it did not have jurisdiction over his person, nor that it did not have full power and right in an ordinary ease of embezzlement, on conviction or plea of guilty or non vult, to pronounce a valid legal sentence of 3 years maximum and 1 year minimum, and to pronounce like sentences in each of several such cases and to provide that the terms should run consecutively.

Petitioner does contend, however, that the particular judgment or sentence of that court, under which he is now confined—that is to say the judgments or sentences on all the indictments except No. 189—is invalid and void, in that the court at the time of the pronouncement thereof was without jurisdiction to pronounce the same or any other sentence in respect of the last eight Indictments. If this contention be true—if the sentence or sentences under which he is now confined were and are void for want of jurisdiction of the court to pronounce them; then of course the statute supra offers no bar to petitioner's release upon habeas corpus. In re Marlow, 75 N. J. Law, 400, 68 Atl. 171; State v. Osborne, 79 N. J, Eq. 430, 82 Atl. 424.

Specifically, petitioner's contention is that under the law of this state every man is given immunity from being convicted a second time for an offense of which he had theretofore already been convicted; that, he having once been convicted for an offense, no court thereafter has power or jurisdiction to convict him again for the same offense; that hence the court of quarter sessions had no power or jurisdiction to sentence him on any of the indictments Nos. 331 to 338, inclusive, after sentencing him on indictment No. 189, because the latter indictment was for the embezzlement of a sum inclusive of all the separate sums alleged by the eight other indictments, and a sentence on any of the eight would be a second conviction for an offense of which he had been convicted under the indictment No. 189.

By section 10 of the Bill of Rights in our state Constitution it is provided that "no person shall after acquittal, he tried for the same offense." It has also heretofore been determined that where a former acquittal would relieve a defendant a former conviction will have the same effect State v. Cooper, 13 N. J. Law, 361, 25 Am. Dec. 490. That case, it is to be noted, was decided under the prior Constitution of New Jersey, in which the prohibition was in terms which differ very materially from the present phraseology. Let us assume, however, for the purposes of this case that that decision is still the law of this state.

It might seem, then, at first impression that no court before whom an accused is brought for trial as to an offense charged against him can have jurisdiction to try him, if the offense charged is one of which he had theretofore been acquitted, or convicted, and that if there be no jurisdiction to try, there can be no jurisdiction to sentence.

A little reflection, however, discloses that this is by no means a necessary or logical conclusion. In the first place, the constitutional provision is in express terms against a second trial; nothing is said as to a sentence. An accused may (except in the case of a capital crime) plead guilty and thus waive a trial. If he does so, is there any prohibition against his being sentenced, even though in fact the offense of which he has pleaded guilty is the same offense of which he has previously been acquitted or convicted? In the second place, is the lack of jurisdiction to try a lack which may be cured by the waiver or consent of the accused? In the third place, it will be realized that as a practical matter, where an accused desires to avail himself of the protection against a second trial, it must somehow be made to appear that the offense charged is the same as the offense of which he has already been acquitted or convicted. That question is a mixed question of law and fact, and it must be determined by some tribunal. In our procedure the question is raised by a plea, and the court in which the indictment is pending first determines the issue so raised, and thereafter, according to the result thereof, discharges the prisoner or proceeds with the trial of the indictment is the finding of such tribunal, upon that issue, conclusive except upon appeal, or is it subject to collateral attack or review by habeas corpus?

It is unnecessary to pursue the last mentioned of these three inquiries, for the reason that the situation upon which it is predicated does not exist in the case at bar. There was no trial or determination of any issue as to the identity of the offenses: the accused entered no such plea and made no such objection either formally or in any other wise. He at first pleaded not guilty to each of the nine indictments, and later retracted and pleaded non vult in each case, and was thereupon sentenced of course without trial of any kind.

The jurisdiction of a court-its "right to speak"—is its right, or rather its power, to pronounce a particular final judgment or decree as to a particular person in a particular action. If it has not such power, then its judgment is void and amounts to nothing. If it has such power, that power may be exercised rightfully or wrongfully in any given case, but though exercised wrongfully it is, at most, only voidable, and if voidable at all, only by direct appeal. There may be no right of appeal therefrom, or no appeal may in fact be taken, but except it be reversed on appeal it is valid and binding everywhere.

If there be a failure or lack of jurisdiction as to any one of the three phases, it is fatal to the validity of the judgment: there must be power over the person, power to deal with the particular action, and power to pronounce the particular judgment. Jurisdiction over the person of a defendant, in a civil suit, is acquired by the service of the court's process upon him. Such service upon a nonresident, out of the state,...