In re Application of Baronne

• Decision Date: 28 April 1922
• Docket Number: No. 112.,112.
• Citation: In re Application of Baronne, 117 A. 163, 97 N.J.L. 249 (N.J. 1922)
• Court: New Jersey Supreme Court
• Parties: IN THE MATTER OF THE APPLICATION OF ANTONIO BARONNE, PLAINTIFF IN ERROR, FOR BAIL

117 A. 163

In re BARONNE.

No. 112.

Court of Errors and Appeals of New Jersey.

April 28, 1922.

Error to Supreme Court.

Application by Antonio Baronne for admission to bail, pending a writ of error to review conviction of murder in the first degree.The Supreme Court denied bail (114 Atl. 809), and applicant brings error.Appeal dismissed.

See, also, 115 Atl. 668.

J. Victor D'Aloia, of Newark and Alexander Simpson, of Jersey City, for plaintiff in error.

J. Henry Harrison, Prosecutor of the Pleas, of Newark, for the State.

KALISCH, J.The facts, which are fully set forth in the opinion of the Supreme Court, present the legal question whether one, who has been convicted by a jury, of murder in the first degree, with a recommendation of life imprisonment, which conviction, under the statute, entails a Judgment of imprisonment at hard labor in the state prison for life, is entitled to be released on bail, pending the prosecution of a writ of error to such judgment, by virtue of section 143, of the Criminal Procedure Act, 2 Comp. Stats., p. 1867, which section provides:

"Pending the prosecution of a writ of error the court in which such judgment shall have been rendered shall admit the defendant to bail, when application is made for the same and proper and sufficient bail is offered; provided, that this section shall not apply to capital cases."

The Supreme Court decided that the plaintiff in error, who was convicted of murder in the first degree, with a recommendation of life imprisonment, and who thereupon was sentenced to life imprisonment and is prosecuting a writ of error to reverse the judgment and conviction, was excluded from the privilege of giving bail, because he was convicted of a capital offense.We concur in this result.For it is quite apparent that the prosecution of a writ of error in such a case cannot properly transform the nature of the conviction, that is, from a conviction of a capital offense into one not capital, merely, because a death penalty was not imposed but only a judgment of imprisonment for life.As the crime of murder in the first degree is punishable with death, by our statute, it follows that a person convicted of that degree is subject to the imposition of the death penalty, unless the jury recommends life imprisonment as the punishment to be inflicted, as was done in this case.But, notwithstanding the imposition of the milder punishment, it is quite clear that the conviction in its very nature remains a...