Patterson v. State

• Decision Date: 08 March 1887
• Citation: 8 A. 305,49 N.J.L. 326
• Parties: PATTERSON v. STATE.
• Court: New Jersey Supreme Court

8 A. 305

49 N.J.L. 326

PATTERSON

v. STATE.

Supreme Court of New Jersey.

March 8, 1887.

(Syllabus by the Court.)

On certiorari.

This writ brings up certain proceedings had before Justice Scudder upon a return to a writ of habeas corpus allowed upon the petition of Frank Patterson, who was in the custody of the sheriff of Monmouth county. The petition set out that the cause or pretense of such confinement was because of a certain indictment for forgery presented by the grand jury of Monmouth county of the term of October, 1884; that the said imprisonment was alleged to be illegal because the indictment was found by a grand jury which the sheriff did not cause to come before the court of oyer and terminer and jail delivery, according to the statute, in that the said oyer and terminer was not legally constituted; also that the said indictment was found at the October term of court of 1884, and that the defendant had been in confinement as aforesaid since January, 1885, and should be discharged because he was not tried at the term or session in which issue was joined, nor at the term thereafter, and no further time has been allowed for the trial thereof for just cause. Upon this petition a writ was allowed, to which the sheriff made return that the said Patterson was restrained of his liberty by virtue of certain indictments found in the Monmouth county oyer and terminer term, 1884; and also that the said Frank Patterson was duly surrendered to the sheriff by one of his bail, December 28, 1884; and also, by certain indictments found at the January term, 1885, of the Monmouth county oyer and terminer; and also by certain orders of the court of quarter sessions of the county of Monmouth,—. all of which would more fully appear in the proceedings of said courts of oyer and terminer and quarter sessions, certified to by the clerk of the county of Monmouth, and annexed to the return as a part thereof. Then follows the certified copy of the record of the proceeding in the court of oyer and terminer, as follows: "October term, 1884, the grand jury come into court, and present the following bills and indictments: Frank Patterson, indictments for foigery, numbers from 81 to 114, inclusive. October 17, 1884, it was ordered that all the indictments found this term be handed down to the quarter sessions. January term, 1885, the grand jury presented seven more bills against Frank Patterson for forgery. January 19, 1885, it was ordered that all indictments found this term be handed down to the court of quarter sessions."

In the quarter sessions the record shows the following proceedings: On October 23, 1884, the defendant being arraigned and charged, pleaded not guilty to each of the indictments found at the October term, and entered into recognizance with two sureties for his appearance on November 17th, for which date the trial was set down. On November 17th it was ordered by the court that the trial of the several indictments be postponed till November 19th, and on November 19th it was ordered that they be postponed till the next term of the court, and the defendant entered into recognizance, with two sureties, on each of the indictments, for his appearance on the first Tuesday in January, 1885. On March 3, 1885, the petitioner was arraigned upon the indictments found at the January term, 1885, and pleaded not guilty to each On March 5th it was ordered that all forgery indictments found October term, 1884, be continued till May term, and on May 13th it was ordered that all indictments standing against the petitioner be tried on the twenty-seventh of May, and that the defendant be remanded. On May 20th it was ordered that all the indictments for forgery against the defendant be postponed till June 10, 1885, at 10 o'clock a. m. On June 10th defendant was set at bar for trial for forgery of the Henry Krockle note, and the jury disagreed, and were discharged, and the defendant was remanded. On June 15th the same indictment was again tried, with the same result. On June 18th defendant was tried upon the indictment for forging the Uriah White note, with a similar result. On July 2d he was tried for forging the Buchanan note, which trial resulted in a conviction upon the first count. On July 13th he was tried upon another of the indictments, and convicted upon the fifth count. On July 29th he was tried upon another indictment, which trial resulted in a disagreement of the jury. At tins term the counsel for the defendant moved that the trial of all the indictments be had at that term, or the defendant be discharged, but the court ordered that the trial of all indictments untried be continued until the next term, for good cause shown. The judgments upon the two convictions were taken to the supreme court by writs of error, and the judgments were reversed at June term, 1886. The writ of habeas corpus was tested June 28, 1886.

R. T. Stout, for prosecutor.

C. T. Haight and J. W. Swartz, for the State.

REED, J. The first five reasons assigned for the reversal of the order below remanding the prosecutor are directed against the sufficiency of the return made by the sheriff in matter of form. I say in matter of form, because it cannot be insisted with any degree of plausibility that, if the facts set out in the sheriff's return be true, the prosecutor was not properly in custody. The fact that he had been indicted, discharged on bail, surrendered by his surety, brought into court repeatedly for trial, and remanded to custody, all appear upon the face of the return,' which includes the record of the proceedings of the court of oyer and terminer and quarter sessions. The point of the objections is that these facts should appear more certainly, and in support of this view we are referred to section 15 of the habeas corpus act. The third subdivision requires that the person upon whom the writ of habeas corpus shall be served shall in his return, if defendant be detained by any writ, warrant, or other written authority, annex a copy thereof to said return, and the original shall be produced and exhibited on the return to the court or justice before whom the same is returned. This provision, in another form, is designed to secure the right of the defendant, first guarantied by the fifth section of the habeas corpus act, 31 Car. H., to a copy of the warrant, commitment, or detainer under which he is imprisoned. If the custodian neglects to return such warrant, he can be ordered to do so by the judicial officer who issues the writ, and this order can be enforced by attachment. Revision, p. 470, § 18; Church, Hab. Corp. § 124; State v. Raborg, 5 N. J. Law, 545. But the mere failure of such custodian to return a warrant, or the fact that his return is imperfect, does not operate to discharge the prisoner. The recognition of such a rule would place in the hands of negligent or corrupt jailors the power to empty a penitentiary.

Where the court or judge has reason to believe that a writ, order, or record is in existence which should be before the court or officer to enable complete justice to be done, the production of such paper can be compelled, and the return amended. The court or justice, upon the return coming in, may examine under oath the officer or other person making such return, with respect to the subject-matter thereof. Revision, p. 470, § 16. According to the practice both in England and this country, the return can be amended at any time before the final disposition of the cause. Hurd, Hab. Corp. 262; In re Hopson, 40 Barb. 40; Leonard Watson's Case, 9 Adol. & E. 731; People v. Cacanagh, 2 Parker, Crim. Cas. 658. And the return, when made, will be liberally construed. King v. Bethel, 5 Mod. 19; People v. Nevins, 1 Hill, 154; Bremen's Case, 10 Adol. & E. (N. S.) 492.

In the present case it is urged upon the argument here that copies of the indictments should have been returned. For what purpose it is difficult to imagine. Not for the purpose of passing upon their sufficiency, for the court or justice upon habeas corpus does not sit to review errors. Cooley, Const. Lim. 347. For the purpose of raising the question of the constitution of the court of oyer and terminer, and of the grand jury which found them, their return in full was unnecessary, and this was the only question raised by the petition, or upon the hearing before the justice, so far as appears by the record. The same remark may be made in regard to the objection that there was no sufficient return of the surrender of the defendant by his surety. The fact of a surrender was not, so far as appears,...