Gehrmann v. Osborne

• Decision Date: 16 January 1912
• Citation: 79 N.J.E. 430,82 A. 424
• Parties: GEHRMANN v. OSBORNE, Warden.
• Court: New Jersey Court of Chancery

82 A. 424

79 N.J.E. 430

GEHRMANN

v. OSBORNE, Warden.

Court of Chancery of New Jersey.

Jan. 16, 1912.

Habeas corpus by the State, on the relation of Johanna Gehrmann, against George Osborne, Warden of the State Prison. Writ dismissed.

This is a hearing upon a writ of habeas corpus issued by me under the statute. The petition of Johanna Gehrmann set forth that she was imprisoned at the state prison in Trenton; that the cause or pretense of her confinement was a commitment issued out of the court of quarter sessions of the county of Hudson, a copy of which was annexed, and that the imprisonment was illegal, because the said court had no jurisdiction to make the judgment contained in the commitment, because there was a plea of non vult, entered on the 28th of April, 1909, for a high misdemeanor, sentence was suspended, and costs were taxed; that thereafter, after the term at which the said plea of non vult had been made and judgment pronounced thereon, and on the 21st day of September, 1911, the said court changed the said judgment to Imprisonment for a period of five years, which it had no power to do under the statute.

The warden of the state prison made return to the writ, setting forth that the prisoner was detained in his custody by virtue of a warrant issued out of the court of quarter sessions of the peace (sic) of the county of Hudson, which said warrant he gives as follows: "In the State of New Jersey v. Johanna Gehrmann. Sur Indictment No. 3, April Term, 1909, for Conviction of Abortion. On motion of the prosecutor of the pleas the court ordered the sheriff to set the defendant to the bar to receive her sentence, and she being accordingly set to the bar, the court did thereupon order and adjudge that the defendant Johanna Gehrmann be imprisoned in the state prison of this state for the term of five (5) years at hard labor upon this conviction, that she pay the costs of this prosecution, and that she be further imprisoned from and after the expiration of the said term of five (5) years until the said costs of this prosecution are paid."

The prisoner then traversed the return, setting forth that she should not be detained by reason of anything in the warrant alleged, because the said warrant of commitment was void, as the said court had no jurisdiction to make the same, setting forth that the said Johanna Gehrmann, on the 14th of June, 1909. being indicted for a high misdemeanor, pleaded non vult, and on the 17th of June, 1909, judgment was given against her that sentence be suspended, and thereafter, on the 1st of April, 1910, costs were taxed against her, and thereafter, on the 21st of April, 1911, a new judgment was pronounced against the said Johanna Gehrmann, as set forth in the warrant of commitment. And the petitioner alleged that by the law the said court was without jurisdiction to pronounce the said judgment of September 21, 1911, both by reason of the common law and by reason of the statute entitled "An act relating to courts having criminal jurisdiction and regulating public proceedings in criminal cases" (Rev. of 1898, p. 885, § 55). and the amendment thereto (P. L. 1908. p. 429).

Notice was served upon the prosecutor of the pleas of the county of Hudson, in accordance with the practice, and on the 6th of November, 1911, the attorney of the petitioner and the prosecutor entered into a stipulation that the paper then filed contained a true copy of the record of the court of quarter sessions in the matter of the State v. Johanna Gehrmann. Said stipulated facts, as set forth in the annexed paper, were as follows:

"The State v. Johanna Gehrmann.

"Indictment, Abortion.

"April 28, 1909, the defendant Johanna Gehrmann being charged pleads not guilty, and she and her bail Arthur W. Hilchner, 345 Clinton Ave., West Hoboken, enters with a recognizance in the sum of fifteen hundred dollars, each conditioned that defendant appear from day to day for trial.

"June 1, 1909. Case called and put off.

"June 14. 'Deft. Johanna Gehrmann being placed to the bar retracts plea. Non vult. Bail continued for sentence.

"June 17. Defendant Johanna Gehrmann, being placed to the bar, sentence was postponed.

"Aug. 9, 1911. Sentence by court is hereby ordered revoked and deft, is ordered held for resentence.

"Sept. 21. The deft, being placed to the bar is sentenced to be confined in state prison at hard labor for a period of five years and thence until costs of prosecution are paid."

It is admitted that the clerk of the court has taxed the costs up to and including the date of the postponed sentence, and that the record page is marked: "Settlement April 1, 1910, $48.06. Costs taxed."

It does not appear that the court made any judgment or order for the taxation or payment of costs, excepting in the judgment of September 21, 1911; and there is therefore nothing in the point urged by the petitioner that there was any judgment for costs against her prior to the judgment of September 21, 1911.

Alexander Simpson and I. Faerber Goldenhorn, for petitioner.

George T. Vickers, Assistant Prosecutor of the Pleas, opposed.

GARRISON, V. C. (after stating the facts as above). The questions presented are of importance, not only to the prisoner, but to the public, and I have given the matter much time and consideration.

The first question, of course, is whether a proper case is presented for the application of the jurisdiction exercisable under the writ of habeas corpus. It is familiar law that a writ of habeas corpus is not properly usable to take the place of a writ of error. Our statute concerning habeas corpus specifically provides (Gen. Stat. p. 1622, § 2) "that the following persons shall not be entitled to prosecute such writ: * * * II. Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction. * * *" It is not suggested that the court of quarter sessions was not a competent tribunal of criminal jurisdiction, that it had not specific jurisdiction with respect to the crime of abortion, nor that the judgment which it rendered, standing by itself, was not a proper judgment and fully within the jurisdiction of the court.

It is alleged, on behalf of the prisoner, that the judgment was invalid. First, because the court of quarter sessions had no further power over the petitioner after sentence was postponed; second, that the conviction in this case, being for a high misdemeanor, and a term having passed at which the sentence was postponed, the court could not, in view of the act of 1898 (chapter 237, § 55, p. 885) and the amendment thereto (P. L. 1908, p. 429), open and vacate that judgment and resentence the defendant.

It will thus be seen that the petitioner justifies her use of the writ of habeas corpus, not by alleging an error committed by the trial court which would require the use of a writ of error to obtain correction thereof but by alleging that the judgment or sentence was invalid, and that the court had no jurisdiction at the time that it pronounced judgment or sentence to pronounce the same. If she sustains this contention, it would seem, under the authorities in this state, that she is entitled to the writ. Whether she sustains the same can only be determined by a careful consideration of the facts and the law applicable thereto.

Mr. Justice Swayze, in Re Marlow, 75 N. J. Law, 400, at page 402, 68 Atl. 171, at page 172, after citing the provision of the habeas corpus act to which I have alluded, and calling attention to the fact that the final judgment of the "competent tribunal" there spoken of obviously applies only to valid legal judgments, said (concerning the power of review on habeas corpus): "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"—calling attention by citation to many authorities.

If, however, the insistence of the petitioner is that the judgment of the competent tribunal of criminal jurisdiction was invalid, direct authority is found for her use of the writ in the cases of State v. Gray (Sup. Ct. 1875) 37 N. J. Law, 368, State v. Addy (Sup. Ct. 1881) 43 N. J. Law, 113, 39 Am. Rep. 547, and In re Marlow, supra, and in the following authorities, which may be consulted by one who desires a more extended consideration of the whole subject: Clifford v. Heller (Sup. Ct. 1899) 63 N. J. Law, 105, 42 Atl. 155, 57 L. R. A. 312, and notes; Spelling on Injunctions and other Extraordinary Remedies (2d Ed.) §§ 1202, 1206, 1211, 1215, 1216; Ex parte Parks (1876) 93 U. S. 18, 23 L. Ed. 787. And see cases and notes in Appeal of Bion, 59 Conn. 372, 20 Atl. 662, 11 L. R. A. 694; Ex parte McKnight, 48 Ohio St. 588, 28 N. E. 1034, 14 L. R. A. 128; State ex rel. Moriarty v. McMahon, 69 Minn. 265, 72 N. W. 79, 38 L. R. A. 675; Stoutenburgh v. Frazer, 16 App. T>. C. 229, 48 L. R. A. 220; In re Begerow, 133 Cal. 349, 65 Pac. 828, 56 L. R. A. 513, at 539, 85 Am. St. Rep. 178; In re Tani, 29 Nev. 385, 91 Pac. 137, 13 L. R. A. (N. S.) 518; In re Justus, 3 Okl. Cr. Ill, 104 Pac. 933, 25 L. R. A. (N. S.) 483.

This brings us, then, to the consideration of the question of whether the judgment of the court in this case was invalid.

The first question which calls for consideration is whether the fact that the defendant pleaded nolo contendere, and sentence was thereupon postponed, places her in any other situation than she would have been in, had she been convicted upon trial or had pleaded guilty. This plea, in which the defendant pleads in the first person, nolo contendere, and the clerk properly enters it in the third person, non vult contendere, was used at common law, and, while unknown in many of...