Ex parte Scridlow
| Decision Date | 23 March 1940 |
| Docket Number | No. AI.,AI. |
| Citation | 11 A.2d 837,124 N.J.L. 342 |
| Parties | Ex parte SCRIDLOW. |
| Court | New Jersey Supreme Court |
Proceeding in the matter of the application of August C. Scridlow for a writ of habeas corpus.
Application denied.
Argued January term, 1940, before BROGAN, C. J., and DONGES and PORTER, JJ.
The applicant is confined in state's prison, having been committed on February 13, 1936, upon his conviction of a high misdemeanor. His petition for habeas corpus alleges that at his trial on February 9, 1936, he was found guilty as charged and sentenced by the trial court to state's prison at hard labor for a maximum term of seven years and a minimum of four years, and that on February 13, he was again brought before the trial court and his sentence changed to a maximum of seven and a minimum of five years; that his time for appeal has expired and that his continued imprisonment is illegal because, as he says, the statute of 1932, under which he was resentenced, so to speak, was ex post facto, relying on Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed. 648.
The crime for which Scridlow was convicted and sentenced to prison was committed on May 13, 1932. Subsequent thereto, i. e., on May 26 of that year, the statute under which he was resentenced became effective. P.L.1932, Ch. 166, p. 292, N.J.S. A. 2:192-4. That statute provides that all sentences to the New Jersey state's prison shall be for a maximum and minimum term except sentences for life, but that the maximum term shall not be in excess of the maximum term prescribed by law for the offense for which the offender was convicted. This is the pertinent part of the statute invoked and the applicant says that since, under his first sentence, a minimum term of four years was fixed that on the resentencing the fixing of a minimum term of five years was unlawful because ex post facto. This contention we consider to be without merit.
The petitioner's trial was held almost four years after the offense. At the time the offense was committed—may 13, 1932—there was in fact no statute providing for maximum or minimum terms. The statute of 1922, Chap. 50, p. 96, providing for maximum and minimum terms, had been repealed by the 1926 statute, Chap. 214, p. 357, and the 1932 statute, supra, did not, as has been said, become part of our law until thirteen days after petitioner's crime was committed.
Returning now to the matter of the crime for which Scridlow was convicted, that un lawful act, viz., the willful and malicious assault upon another with an offensive weapon or instrument, is, by our statute, a high misdemeanor—R.S. 2:110-3, N.J.S.A. 2:110-3. Scridlow was found guilty as charged, the charge being that while he was in prison for some other violation of the criminal law he was party to an assault upon a fellow convict, with a knife, and the pertinent statute—R.S. 2:103-5, N.J.S.A....
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