Ex parte Marlow

• Citation: 75 N.J.L. 400,68 A. 171
• Parties: Ex parte MARLOW.
• Decision Date: 16 December 1907
• Court: United States State Supreme Court (New Jersey)

68 A. 171

75 N.J.L. 400

Ex parte MARLOW.

Supreme Court of New Jersey.

Dec. 16, 1907.

(Syllabus by the Court.)

Application by John Marlow for writ of habeas corpus. Prisoner remanded.

Argued November term, 1907, before HENDRICKSON, TRENCHARD, and SWAYZE, JJ.

Spencer Simpson, for petitioner. Theodore Backes, for the State.

SWAYZE, J. The petitioner is confined in the state reformatory under a sentence of the Camden special sessions upon a conviction for breaking and entering. He claims his freedom upon the ground that the sentence was invalid, first, because, at the time it was imposed, he was under the age of 16 years, and, second, because it is indeterminate and therefore illegal. The commitment under which he is held is merely a copy of the sentence of the court, and does not disclose his age. The statute authorizes the courts to sentence to the reformatory such male prisoners as they think proper between the ages of 16 and 30 not known to have been previously sentenced to a state prison or penitentiary in this or any other state or country, and further enacts that the court shall not fix or limit the duration of sentence, which, however, is not to exceed the maximum term provided by law for the crime. No minimum sentence is authorized. It may be terminated by the managers of the reformatory upon terms and in the manner provided by the act. P. L. 1901, pp. 234-236, §§ 7, 9, 10, 11. By the act to establish and regulate the state home for boys (P. L. 1900, p. 176) a justice of this court or a judge of the court of common pleas is authorized in case a boy under 16 is sentenced to jail or the state prison to commit him to the state home for boys. Neither act prevents the court from sentencing offenders of any age to the state prison.

The habeas corpus act provides that persons committed or detained by virtue of the final judgment of any competent tribunal of civil or criminal jurisdiction shall not be entitled to prosecute the writ; but this obviously applies only to valid legal judgments, and we have examined into the validity of such a judgment, and, upon finding it invalid, have discharged the prisoner. State v. Gray, 37 N. J. Daw, 368. In that case the invalidity was apparent in the sentence itself. In the present case the sentence on its face is in compliance with the statute, and the first reason alleged for holding it invalid depends upon a fact extraneous to the record—the age of the prisoner. In the case of a commitment to the boys' home, the age of the prisoner must necessarily be set forth, as he can only be held until he attains his majority, and so the statute prescribes. There is no such requirement in the act relating to the reformatory, and, although it would be very proper for the court to set forth its finding in this respect, we find nothing to make it essential. Had such a finding appeared upon the record, it could not be questioned on the application for a habeas corpus. Ex parte Karstendick, 93 U. S. 396, 23 L. Ed. 889. In the absence of such a finding on the face of the commitment, we think we must presume that the court found the facts as to age and want of prior conviction, which were necessary to warrant the sentence to the reformatory. The United States Supreme Court has so held where a similar question arose. Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89.

It is, however, conceded by the state that the defendant was under 16 years of age when sentenced, and we are therefore confronted with the question whether we can on Habeas corpus review the action of the trial court. That such a review can be had where there was a lack of jurisdiction in the trial court is not doubted. The difficult question always is to distinguish between a lack of jurisdiction to pronounce the particular judgment and a mere error in law or fact to be redressed by writ of error in the one case and by motion, taking the place of the old writ of error coram nobis, in the other case. Many cases are collected in 21 Cyc. 298, 299. It will suffice to cite Sennot's Case, 146 Mass. 489, 16 N. E. 448, 4 Am. St. Rep. 344; In re Stalker, 167 Mass. 11, 44 N. E. 1068; In re Bishop, 172 Mass. 35, 51 N. E. 191; In re Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; In re Belt, 159 U. S. 95, 15 Sup. Ct 987, 40 L. Ed. 88; In re Eckart, 166 U. S. 481, 17 Sup. Ct. 638, 41 L. Ed. 1085; Dimmick v. Tompkins, 194 U. S. 540, 552, 24 Sup. Ct. 780, 48 L. Ed. 1110. Sennot's Case is notably like the present. In all of the cases cited errors had been committed by the trial court. In some of them the proceedings failed to comply with statutory requirements; but it was nevertheless held that the proper method of redress was by writ of error, and not by habeas corpus, and this for the reason that the error might be such that it could be corrected. In re Bishop, 172 Mass. 35, 51 N. E. 191. Formerly this reason would not have been applicable in this state, but since the decision in State v. Gray authority has been conferred upon the courts, where a judgment is reversed upon writ of error for error in the sentence, to render such judgment as should have been rendered, or remand the case for that purpose to the court before which the conviction was had. P. L. 1898, p. 916, § 144. The reason...