Ex parte Hodge

• Decision Date: 19 February 1953
• Docket Number: No. A--525,A--525
• Citation: 24 N.J.Super. 564,95 A.2d 156
• Parties: Ex parte HODGE.
• Court: New Jersey Superior Court — Appellate Division

Page 564

24 N.J.Super. 564

95 A.2d 156

Ex parte HODGE.

No. A--525.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 12, 1953.

Decided Feb. 19, 1953.

William Hodge, pro se.

Theodore D. Parsons, Atty. Gen. (Eugene T. Urbaniak, Deputy Atty. Gen., appearing), for the State.

Before Judges EASTWOOD, BIGELOW and JAYNE.

The opinion of the court was delivered by

JAYNE, J.A.D.

The petitioner was convicted by a jury on November 17, 1944 in the former Court of Quarter Sessions of Mercer County of the crime of robbery. By virtue of the consequent sentence imposed upon him he is confined in the New Jersey state prison. In February 1951 he addressed a petition to the Mercer County Court praying for the issuance of a writ of Habeas corpus to inaugurate an inquiry into the legality of his continued imprisonment. The petition was denied. In re Hodge, 17 N.J.Super. 198, 85 A.2d 327 (Cty.Ct.1951). We have reviewed the proceeding in response to the petitioner's appeal.

While we concur in the conclusion that the issuance of the writ was not warranted by the allegations of the petition, we are not in accord with all of the reasons expressed in the reported opinion of the County Court.

One of the reasons for the denial of the petition was the long and unexplained delay in applying for the writ. There is no limitation of time within which an application for a writ of Habeas corpus must be sought, and the mere fact that this petitioner failed to solicit the writ more promptly was not of itself a justifiable ground for the denial of its issuance. Vide, State v. Cynkowski, 19 N.J.Super. 243, 88 A.2d 220 (App.Div.1952), affirmed 10 N.J. 571, 92 A.2d 782 (1952).

The petitioner alleged, Inter alia, that he was in custody at the time of the trial and involuntarily absent from the courtroom when the jury rendered against him the verdict of guilty of the crime of robbery. The judge of the County Court left the legal significance of that circumstance undetermined.

Our Appellate Division had occasion to consider this point in a case in which there had been a conviction of the defendant for the commission of a misdemeanor and concluded that the presence of the accused at the rendition of the verdict, although he was then in custody, was not essential to the legality of the conviction. In re Graham, 13 N.J.Super. 449, 80 A.2d 641 (App.Div.1951), certification denied, 7 N.J. 582, 83 A.2d 381 (1951), certiorari denied, Graham v. Warden, N.J.State Prison, 342 U.S. 930, 72 S.Ct. 372, 96 L.Ed. 692 (1952).

For many years the legislation constituting the criminal code of this State has ignored the common law distinction between felonies and misdemeanors. Criminal offenses in our statutory law have been denominated either misdemeanors or high misdemeanors. The crime of robbery is a high misdemeanor. R.S. 2:166--1, now N.J.S. 2A:141--1, N.J.S.A.

In 1887 Chief Justice Beasley and Justices Deput, Van Syckel, and Scudder were heard to say: 'Independent of these considerations, by a long course of procedure, the practice has become settled in this state to receive the verdict of the jury in all criminal cases, except capital cases, without the presence of the accused.' Jackson v. State, 49 N.J.L. 252, 9 A. 740, 741 (Sup.Ct.1887), affirmed, 50 N.J.L. 175, 17 A. 1104 (E. & A.1887).

Although it was also the rule in England that in felony cases no writ of error could be heard by the appellate court in the absence of the defendant, it was many years ago determined in this State that the presence of the defendant at such proceedings was not essential. Donnelly v. State, 26 N.J.L. 463, 471 (Sup.Ct.1857), affirmed, 26 N.J.L. 601 (E. & A.1857); State...