Ex parte Kershner

• Decision Date: 19 December 1951
• Docket Number: No. A--49,A--49
• Citation: 17 N.J.Super. 30,85 A.2d 283
• Parties: Ex parte KERSHNER.
• Court: New Jersey Superior Court — Appellate Division

Page 30

17 N.J.Super. 30

85 A.2d 283

Ex parte KERSHNER.

No. A--49.

Superior Court of New Jersey, Appellate Division.

Submitted Nov. 26, 1951.

Decided Dec. 19, 1951.

Eugene T. Urbaniak, Trenton, for respondent (Theodore D. Parsons, Atty. Gen. of New Jersey, attorney).

John M. Kershner, pro se.

Before Judges JACOBS, EASTWOOD and BIGELOW.

PER CURIAM.

On May 16, 1941, the appellant was received at the New Jersey State Prison, where he is now confined, to serve consecutively four sentences imposed by the Somerset County Court, each having a minimum of five years and a maximum of seven years. On July 2, 1941, the Union County Court imposed 27 sentences, to be served consecutively, each having a minimum and a maximum of one year. The latter sentences are being served concurrently with the Somerset County sentences. On October 19, 1951, the defendant filed his appeal from the decision of the Mercer County Court denying his application for writ of Habeas corpus.

The appellant's asserted grounds for reversal of the Mercer County Court's judgment are: (1) that the sentences imposed upon the defendant to be served consecutively to each other are illegal; (2) that the prison authorities illegally aggregated the minima and maxima of the consecutive sentences to produce a single sentence; and that (3) the maximum and minimum of each sentence imposed by the Union County Court being the same, are illegal.

That the imposition of a series of consecutive sentences upon a convicted criminal is a valid exercise of the power of the court, has been firmly settled in this State. State v. Mahaney, 73 N.J.L. 53, 62 A. 265 (Sup.Ct. 1905); affirmed 74 N.J.L. 849, 67 A. 1103 (E. & A. 1907); State v. Weeks, 6 N.J.Super. 395, 400, 71 A.2d 644 (App.Div. 1950). As was stated in the Mahaney case, supra, 73 N.J.L. at pp. 55, 56, 62 A. at page 265: 'This right to impose consecutive sentences, which had its origin before the American Revolution, is one well recognized in common law. 1 Chitty, Cr. Law, 718; Bish. Cr. Law, § 953; Bish. Cr. Pro., § 1327; Castro v. Reg., 6 App.Cas. 229. The doctrine is one resting in common sense, as well as in authority. It is apparent that, unless consecutive sentences can be imposed, the court must either suspend sentence for one offense until the expiration of the time of imprisonment named in the other sentence, at which time the personnel of the court and of the prosecutor's office may have changed, and the facts essential to the imposition of a sentence become difficult of ascertainment, or else the court must impose concurrent sentences, the effect of which is to entirely nullify the effect of one of them. * * * The practice of imposing consecutive sentences has, so far as I am aware, been followed in this...