State v. Burns.

Decision Date29 January 1948
Docket NumberNo. 9.,9.
Citation57 A.2d 1,136 N.J.L. 601
PartiesSTATE v. BURNS.
CourtNew Jersey Supreme Court

OPINION TEXT STARTS HERE

Error to Supreme Court.

Stephen Burns, alias Steve Burns, was convicted of assault with intent to rob. Judgment and sentence were reversed by the Supreme Court to the end that a venire de novo might issue, 135 N.J.L. 386, 52 A.2d 160, and the State brings error.

Reversed.

WACHENFELD, Justice dissenting.

Gene R. Mariano, Prosecutor of the Pleas of Camden County, of Camden, for appellant, defendant-in-error.

Walter S. Keown, of Camden, for respondent, plaintiff-in-error.

BURLING, Justice.

Stephen Burns, alias Steve Burns, was indicted by the Grand Jury of the County of Camden during the December Term, 1944. The first count of the indictment charged him with having on December 31, 1944, committed an assault with a revolver with intent to rob one Fred J. DeMarco, and the second count charged a simple assault and battery upon said DeMarco. The indictment also charged in a third count certain allegations which were intended to bring the respondent within the effect of the Habitual Criminal Act, R.S.2:103-10, as amended by P.L.1940 Chapter 219, N.J.S.A. 2:103-10, the detail of which is set forth in the opinion of the Supreme Court. He was tried upon this indictment in the Camden County Court of Quarter Sessions and the verdict of the jury was rendered on March 26, 1945 as follows: They find the defendant, Stephen Burns, alias Steve Burns, Guilty of Assault with Intent to Rob and so say they all.’ He was sentenced on June 22, 1945, to a term in State's Prison for the rest of his natural life. From this conviction and sentence, a writ of error was issued by the Supreme Court on June 14, 1946. The judgment of the Supreme Court reversed the conviction and sentence of the plaintiff-in-error and directed that a venire de novo issue. The new Criminal Appeal Act, R.S.2:195A-1 et seq., N.J.S.A., not being effective until February 1, 1947, assignments of error upon a bill of exceptions (R.S.2:195-17, N.J.S.A.,) were filed in the Supreme Court and the entire record was returned and specifications of causes of reversal were filed in the Supreme Court, pursuant to R.S.2:195-16, N.J.S.A. in this Court grounds of appeal as provided by R.S.2:195A-5, N.J.S.A., were not so designated but an assignment of errors was filed and served which will be treated as a compliance therewith and reads as follows:

‘1. Because the judgment of the Supreme Court in said cause was entered in favor of the said Stephen Burns, alias Steve Burns, whereas it should have been entered in favor of the State.

‘2. Because the Supreme Court reversed the conviction and sentence and ordered the issuance of a venire de novo whereas it should have affirmed the judgment and conviction and sentence of the Camden County Court of Quarter Sessions, and the said plaintiff-in-error, the State of New Jersey, prays: that the judgment aforesaid of Stephen Burns, alias Steve Burns, be in all things affirmed, and that the record and proceedings be remitted to the Supreme Court to be proceeded with according to law and the rules and practice of said court.’

The appellant in its brief, first, contends that the prior convictions were so proven to justify the sentence. With this we disagree. Secondly, if otherwise, the sentence should be corrected and conform to the conviction upon the first count. With this we do agree.

It is not necessary in the disposition of this case to review chronologically the soundness of the proceedings in relation to the manner of asserting and sufficiency of the evidence of the convictions of the other criminal offenses. Suffice it to say, the State failed to meticulously assert and prove either at the trial or upon sentence by an information convictions of high misdemeanors on three other separate occasions, as defined in the Habitual Criminal Act, supra.

‘There is an aggravation of guilt in the repetition of criminal conduct that warrants the imposition of a heavier penalty when the malefactor is again convicted, if the legislative authority so wills; but it is essential to due process that there be an allegation in the indictment of the previous convictions upon which the enhancement of the punishment depends, and proof thereof upon the trial, or that there be a subsequent proceeding in which shall be determined the identity and status of the prisoner in this regard, and his liability to the increased penalty.’ State v. Lutz, N.J.Sup., 1947, 135 N.J.L. 603, at page 604, 52 A.2d 773, 774. Also refer to Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917.

After a review of the bill of exceptions, assignments of error, specifications of causes of reversal filed in the Supreme Court and the entire record, pursuant to R.S.2:195-16, N.J.S.A. (a comparable provision is found in R.S.2:195A-8, N.J.S.A.) it leads us to a conclusion that the respondent only suffered manifest wrong or injury in the...

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15 cases
  • State v. Laws
    • United States
    • New Jersey Supreme Court
    • 25 Septiembre 1967
    ...lengthy retrial. See R.R. 1:5--1; R.R. 1:9--1; State v. Garton, 102 N.J.L. 318, 321, 133 A. 403 (E. & A. 1926); State v. Burns, 136 N.J.L. 601, 603, 57 A.2d 1 (E. & A. 1948). Although neither the State's brief nor the defendants' brief dealt with the question, it was raised at oral argument......
  • State v. Laws
    • United States
    • New Jersey Supreme Court
    • 6 Mayo 1968
    ...matter to the lower court for that purpose. See L.1898, c. 237, § 144, p. 916; R.S. 2:195--23; R.S. 2:195A--13; State v. Burns, 136 N.J.L. 601, 603, 57 A.2d 1 (E. & A. 1948); State v. Garton, 102 N.J.L. 318, 321, 133 A. 403 (E. & A. 1926); State v. Huggins, 84 N.J.L. 254, 261, 87 A. 630 (E.......
  • State v. Laird
    • United States
    • New Jersey Supreme Court
    • 12 Noviembre 1957
    ... ... State v. Lutz, 135 N.J.L. 603, 605, 52 A.2d 773 (Sup.Ct.1947). To the same effect: State v. Burns, ... Page 304 ... 136 N.J.L. 601, 57 A.2d 1 (E. & A.1948); State v. Myers, 136 N.J.L. 288, 55 A.2d 661 (Sup.Ct.1947); State v. Rowe, supra ...         Here, the statute itself, section 39:4--50, provides that one who has been convicted of a previous violation of the section need not ... ...
  • Ex parte Zee
    • United States
    • New Jersey County Court
    • 19 Abril 1951
    ...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 proo......
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