State v. Cubbler.
| Decision Date | 27 June 1949 |
| Docket Number | No. A-528-48.,A-528-48. |
| Citation | 67 A.2d 206 |
| Parties | STATE v. CUBBLER. |
| Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Appeal from Court of Oyer and Terminer, Cumberland County; Solve Tuso, Judge.
George Cubbler was convicted of an offense and sentenced to prison for life as a fourth offender, and he appeals.
Appeal dismissed.
Before Judges JACOBS, EASTWOOD and BIGELOW.
George Cubbler, in pro. per.
George H. Stanger, Prosecutor of Cumberland County, Vineland, for respondent.
The appellant, a prisoner at State Prison, Trenton, filed a ‘Petition’ seeking review of his conviction and his life sentence as a fourth offender. The County Prosecutor filed a verified answer and the prisoner filed a reply. Without considering the procedural questions which arise because of the failure of the prisoner to comply with the rules relating to the prosecution of appeals to this court, we shall pass upon the issue as to whether he was properly sentenced under the Habitual Criminal Act, R.S. 2:103-10, N.J.S.A., which appears to be the sole point he seeks to press, and, in any event, is the only one warranting discussion.
The prisoner was indicted by the grand jury of Cumberland County in three separate indictments for breaking and entering with attempt to commit burglary, possession of burglar's tools with intent to use them in the commission of burglary or theft, and knowingly receiving and possessing a stolen automobile. The indictments set forth that the prisoner had theretofore been ‘thrice or more convicted’, for high misdemeanors, on November 6, 1929, in the Court of Special Sessions, Salem County, on May 1, 1930, in the Court of Quarter Sessions, Camden County, on June 15, 1933, in the Court of Special Sessions, Mt. Holly, Burlington County, and on October 5, 1938, in the Court of Special Sessions, Camden County. At the trial, the prisoner and another defendant were represented by counsel and the court inquired as to whether the defendants denied that they ‘had at least three prior convictions'. Counsel asked for a recess which was granted, the court pointing out that counsel might be able to answer the inquiry ‘after discussion with the defendants'. The record discloses that after the recess the court then said, ‘Let me see if I understand what has been agreed upon, so that it may be stipulated upon the record, and that is that each defendant agrees that on three separate occasions they have been convicted of high misdemeanors'. In response, counsel said, ‘That is correct sir.’ Thereupon the Prosecutor stated, ‘That being the situation, then, your Honor, as I understand it, I am at liberty to excuse all of the State policemen and other witnesses I have summoned to come down here this morning, and we will proceed immediately into the burglary feature of this case’.
The prisoner does not dispute the foregoing but alleges that the indictment contained errors in the description of his prior convictions and that he and his counsel ‘upon hearing the indictments read in open court, recognized the errors they contained and decided to go along with the Prosecutor as they were, both feeling whatever conviction ensued would not stand up’. The Prosecutor concedes that the Salem County conviction was not entered on November 6, 1929; the prisoner was arrested about that time but his conviction did not take place until January 31, 1930. The Prosecutor further concedes that the Burlington County conviction was not in the Court of Special Sessions as alleged, but was in the Court of Quarter Sessions. He contends, however, that these errors were immaterial, did not prejudice the prisoner, and may not now be asserted in view of the admissions in open court.
R.S. 2:103-10, N.J.S.A., provides that any...
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Worbetz v. Goodman
...A plea of guilty or admission of the prior convictions at trial waives the need for formal proof by the State. State v. Cubbler, 4 N.J.Super. 297, 67 A.2d 206 (App.Div.1949), certiorari denied 339 U.S. 939, 70 S.Ct. 670, 94 L.Ed. 1356 (1950), rehearing denied 339 U.S. 959, 70 S.Ct. 975, 94 ......
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Caruso, Application of
...at [89 A.2d 663] page 523, 53 A.2d 308). And has been sustained in other decisions of courts in this State. State v. Cubbler, 4 N.J.Super. 297, 67 A.2d 206 (App.Div.1949); State v. Janiec, 9 N.J.Super. 29, 74 A.2d 605 (App.Div.1950) affirmed on other grounds 6 N.J. 608, 80 A.2d 94 (1951), c......
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State v. Tyler
...was observed. See Oyler v. Boles, supra, 368 U.S., at p. 453, 82 S.Ct., at p. 504, 7 L.Ed.2d, at p. 451; State v. Cubbler, 4 N.J.Super. 297, 300--301, 67 A.2d 206 (App.Div.1949), certiorari denied 339 U.S. 939, 70 S.Ct. 670, 94 L.Ed. 1356 (1950); State v. Janiec, 20 N.J.Super. 471, 477, 90 ......
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...v. Lutz, 135 N.J.L. 603, 52 A.2d 773 (Sup.Ct. 1947); In re Breslin, 9 N.J.Super. 356, 74 A.2d 373 (Cty.Ct. 1950); State v. Cubbler, 4 N.J.Super. 297, 67 A.2d 206 (App.Div.1949); State v. Janiec, 9 N.J.Super. 29, 74 A.2d 605 (App.Div. By this reasoning, since this writ seeks his immediate re......