Ex parte Zee

• Decision Date: 19 April 1951
• Citation: 13 N.J.Super. 312,80 A.2d 480
• Parties: Ex parte ZEE.
• Court: New Jersey County Court

Page 312

13 N.J.Super. 312

80 A.2d 480

Ex parte ZEE.

Mercer County Court Law Division, New Jersey.

April 19, 1951.

Henry G. P. Coates, Highstown, for petitioner, in forma pauperis.

Theodore D. Parsons, Atty. Gen. of the State of New Jersey (Eugene T. Urbaniak, Deputy Atty. Gen., appearing), and Mitchell H. Cohen, Prosecutor of the Pleas of Camden County, Camden (Benjamin Asbell, Asst. Pros., Camden, appearing), for the State.

HUGHES, J.C.C.

On the basis of a verified petition alleging his unlawful imprisonment in the New Jersey State Prison, the writ of habeas corpus was issued to George B. Zee under the authority of R.S. 2:82--1, et seq., N.J.S.A. The State made its return and justified its detention of petitioner in conformity with a commitment of the former Camden County Court of Quarter Sessions, evidencing that on October 22, 1941 there was imposed upon him therein a sentence to the state prison for the duration of his natural life. Conviction had been had on an indictment charging breaking, entering and larceny and also prior convictions of defendant of three high misdemeanors, and sentence was imposed upon him under R.S. 2:103--10, as amended L.1940, c. 219, p. 889, sec. 3, N.J.S.A. ¹

The hearing on the writ accomplished little except to provide a general factual basis for the legal contentions of the petitioner, and his case is determinable without further amplification of this factual record.

The principal contentions of petitioner deal with the failure of the State at trial to offer adequate proof of his previous convictions of crime as alleged in the indictment; his claim that the statute mentioned, which is a part of the Habitual Criminal Act, is unconstitutional as Ex post facto legislation; that the statute is also unconstitutional as providing cruel and unusual punishment for the offense which may precipitate its application, which may be a comparatively minor violation of the criminal law; and finally, that he was denied, unlawfully, a trial by jury in violation of his constitutional right thereto. The petitioner asserts that on each and every one of these grounds the court lacked jurisdiction to convict and sentence him and such claimed lack of jurisdiction is indeed the only basis on which he can seek the intervention of this court on habeas corpus. In re Caruso, 135 N.J.L. 522, 53 A.2d 308 (Sup.Ct.1947).

There is no doubt that the application of the Habitual Criminal Act depends upon the furnishing of adequate proof of the prior offenses, for it is well settled that proof of every act necessary to make the law apply is essential; that the court may not take judicial notice of the record of prior convictions; that the burden of proving the prior convictions and the identity of the defendant as being the same person previously convicted rests with the State and must be established beyond a reasonable doubt. State v. Lutz, 135 N.J.L. 603, 52 A.2d 773 (Sup.Ct.1947); Singer v. United States, 278 F. 415 (3 C.C.A.1921); State v. Janiec, 9 N.J.Super. 29, 74 A.2d 605 (App.Div.1950); State v. Burns, 136 N.J.L. 601, 57 A.2d 1 (E. & A.1948).

But, though a failure to meet these standards at trial with invalidate the conviction on appeal, such deficiency in proof does not go to the jurisdictional capacity of the court and hence is not remediable on habeas corpus. In re Caruso, supra; In re Hall, 94 N.J.Eq. 108, 118 A. 347 (Ch.1922); In re Scridlow, 124 N.J.L. 342, 11 A.2d 837 (Sup.Ct.1940); In re Cooley, 12 N.J.Super. 97, 79 A.2d 98 (Cty.Ct.1951). That writ may not be used in lieu of appeal. In re Rose, 122 N.J.L. 507, 6 A.2d 388 (Sup.Ct.1939). The fact that the time for appeal has expired is of no moment. Ex parte Hill, 2 N.J.Super. 598, 65 A.2d 146 (Law Div.1949); In re Tremper, 126 N.J.Eq. 276, 8 A.2d 279 (Ch.1939).

The petitioner initially challenges the constitutionality of the statute, which he asserts is Ex post facto because it permits that there be shown in evidence against the defendant charged thereunder, previous criminal offenses committed before the effective date of the act. The act as it existed prior to amendment, L.1927, c. 263, sec. 1, p. 483 ² describes the relevant prior offenses, in part, as those entailing service of state prison sentences imposed thereon, whereas the act as amended in 1940, supra, has no such limitation and depends only upon convictions of crime of the grade of high misdemeanors, regardless of the sentences imposed thereon. Petitioner deems this particularly apropos to his case because the previous offenses pleaded against him all antedated the amendment of the statute and on one of them he was granted probation and was not sentenced to the state prison. Hence, the argues that insofar as the application of the amended act is made to depend on previous offenses of different character, than those mentioned in the law in effect when those offenses were committed (L.1927, supra), the Habitual Criminal Act, as so amended, is Ex post facto in that it alters the grade of proofs necessary to bring him within its orbit. This argument is akin to the legal assaults which have been made on habitual offender statutes, namely, that the act punishes the prior offenses and hence is Ex post facto.

This reasoning is fallacious. Habitual offender statutes, such as the one in effect here do not undertake to punish again for the prior offenses. They enhance the punishment for the subsequent offense. A statute is not constitutionally offensive which enhances the punishment for the offense which culminates the repetitive criminal conduct, even though the prior offenses occurred before the statute was enacted or became effective. Such legislation is held not to increase the penalty for the prior crimes, but only to impose punishment for the latter, the gravity of which is increased by the persistence of the accused in criminality. 'A law is not objectionable as ax post facto which, in providing for the punishment of future offenses, authorizes the offender's conduct in the past to be taken into the account and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense then for the first; and it has not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. In such case, it is the second or subsequent offense that is punished, not the first. * * *' Cooley, Const.Lim. 553.

Plainly, the theory of this enhancement of punishment is aimed at criminals of the recidivous type and the punishment for the culminant offense is greater not by relation back to the previous offenses, but only because such criminal has brought himself within a class established by law as deserving and requiring a more severe punishment and restraint than the class of criminals less hardened to crime. Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18 (Sup.Ct., Ohio, 1893). The punishment is for the new crime only, but is the heavier if the offender is an habitual criminal. The statute thus imposes a punishment on none but future crimes and is not Ex post facto. It affects alike all persons similarly situated and, therefore, does not deprive any one of the equal protection of the laws. McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Carlesi v. People of State of New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914). The courts have held quite uniformly to this theory in approving statutes expressing this policy of enhancing punishment for the habitual criminal. 116 A.L.R. 211, n. It is the consensus that the habitual criminal statute is sound in principle and sustained by reason. Aside from the offender and his victim, there is always another party concerned in every crime committed, namely, the State; and it does no violence to any constitutional guarantee for the State to enhance the punishment for second or subsequent offenses. The true ground upon which these statutes are sustained is that the punishment is awarded for the second offense only and that in determining the amount and nature of penalty to be inflicted, the Legislature may require the courts to take into consideration the persistence of the defendant in his criminal course. 25 Am.Jur., Hab.Crim., p. 261; People ex rel. Prisamint v. Brophy, 287 N.Y. 132, 38 N.E.2d 468 (Ct.App., N.Y., 1941), certiorari denied 317 U.S. 625, 63 S.Ct. 62, 87 L.Ed. 506, (1942). This type of legislation was established very early in this country, and the United States Supreme Court has commented that it has uniformly been sustained in the state courts. Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).

And our New Jersey courts have quite strongly defended the ability of the modern state by comparable legislation to reach and rid itself of the scourge of habitual criminality, within constitutional boundaries, as a matter of necessary public policy. State v. Pius, 118 N.J.L. 212, 192 A. 89 (Sup.Ct.1937); State v. Bell, 188 A. 737, 15 N.J.Misc. 109 (Sup.Ct.1937), affirmed State v. Gaynor, 119 N.J.L. 582, 197 A. 360 (E. & A.1938).

Coming now to the claimed unconstitutionality of this act as providing cruel and unusual punishment, in that the culminant offense punished ('* * * and who shall thereafter be convicted of a subsequent offense enumerated in this subtitle, * * *' N.J.S.A. 2:103--10, supra.) may be one of comparatively minor character, it is the sense of this contention by petitioner that the court under this statute is obliged to impose a life sentence even though the terminal crime involved might be one which would not in itself seem to warrant such severity. It is true that the subtitle referred to is a somewhat comprehensive tabulation of crimes under the law of this State, ranging from offenses of the gravity of treason and murder to others such as the defacement of signposts...