Ex Parte Hardman.

• Decision Date: 15 March 1944
• Citation: 36 A.2d 213,131 N.J.L. 257
• Parties: Ex parte HARDMAN.
• Court: New Jersey Supreme Court

131 N.J.L. 257

36 A.2d 213

Ex parte HARDMAN.

Supreme Court of New Jersey.

March 15, 1944.

Application by James I. Hardman for writ of habeas corpus.

Application denied.

John J. Francis, of Newark, for applicant.

William A. Wachenfeld, Prosecutor of the Pleas, of Newark, and James L. McKenna and C. William Caruso, Sp. Asst. Prosecutors, both of Newark, for the State.

PORTER, Justice.

James I. Hardman was convicted of the crime of robbery in the Essex County Court of Quarter Sessions on October 16, 1941, before Judge Flannagan and a jury. He was sentenced on December 3, 1941 by the trial judge to a term in State Prison of from fourteen to fifteen years. It will be observed that a period of forty-eight days elapsed from the date of conviction until the date of sentence. The statute, R.S. 2:192-1, N.J.S.A., provides: ‘In all criminal cases where sentence is by law to be imposed, it shall be the duty of the trial court to impose sentence upon a defendant within forty-five days after such defendant shall have been convicted of * * * a crime * * *.’

Hardman seeks a writ of habeas corpus to review the legality of the sentence on the theory that the statute quoted makes mandatory the imposition of sentence within forty-five days of conviction and that the court had no jurisdiction after that period. His contention is that not having been sentenced within the forty-five day period of limitation, the sentence is void and he is therefore entitled to be liberated from prison.

We are not in accord with that view and so must deny the application. In Ervolini v. Camden County, 127 N.J.L. 473, 23 A.2d 118, 119, it was held that ‘where the word ‘shall’ is used in a statute the presumption is that its use is imperative and not merely directory unless the character of the legislation or the context justifies a different meaning.' Authorities are cited. Tested by this definition we do not think the Legislature used the words ‘it shall be the duty’ in the statute in a mandatory sense, but rather in a directory sense. Having in mind the subject matter of the statute, it seems to us that it was the legislative intent to set out a procedure of prompt action in the imposition of sentences and not to make a hard and fast rule limiting the power or jurisdiction of the court to forty-five days. The purpose of a trial of an indictment is to ascertain the truth of the charge and the protection of society from evil doers. The sentencing is an incident and seems procedural or directory rather than mandatory, and the trial court has wide discretionary power in performing that duty. If such a strict construction as is argued for were placed upon the language of the statute, it would mean that if because of illness or needed time for investigation of the defendant's previous conduct or for other good reason the court was unable to impose sentence within forty-five days, jurisdiction over the defendant would terminate and he would be entitled to his freedom. That would not be reasonable or in the public interest. In Zwillman v. State, 152 A. 775, 9 N.J.Misc. 66, there was a criminal conviction and the sentence was not imposed within thirty days. The provision of the statute then in effect (P.L.1928, Ch. 232) was, ‘it shall be the duty of the court to impose sentence within thirty days * * *.’ An application for a writ of habeas corpus was denied by Chief Justice Gummere, and an...