State v. Forsythe, AM--113

• Decision Date: 17 April 1959
• Docket Number: No. AM--113,AM--113
• Citation: 55 N.J.Super. 225,150 A.2d 494
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John FORSYTHE, Defendant-Appellant. . Considered
• Court: New Jersey Superior Court — Appellate Division

Page 225

55 N.J.Super. 225

150 A.2d 494

STATE of New Jersey, Plaintiff-Respondent, v. John FORSYTHE, Defendant-Appellant.

No. AM--113.

Superior Court of New Jersey

Appellate Division.

Considered April 17, 1959.

Decided April 21, 1959.

John Forsythe, pro se.

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant has applied for leave to appeal as an indigent from an order of the Burlington County Court denying him a hearing on his application for the issuance of a writ of Habeas corpus. He claims he was arrested, indicted and convicted for crimes which he did not commit; that his counsel denied him effective assistance in that he refused to consult with him in the court room on the day of his arraignment; that he never was served with copies of the indictments nor did he discuss them with his counsel; and that he was denied his constitutional right to a jury trial, never having waived that right.

Defendant and his two companions were arrested in July 1952 and charged with entering without breaking, larceny and atrocious assault and battery. All three engaged the same counsel and discussed the case with him. They escaped from the county jail in August 1952. Shortly thereafter his two companions were apprehended, and they pleaded Non vult to the charges and to the additional offense of escape. Defendant was recaptured in February 1953, arraigned on indictments charging entering without breaking, larceny, atrocious assault and battery, and escape, and through the attorney he had previously retained entered pleas of Non vult. The court sentenced him to State Prison for entering without breaking and larceny, 2--3 years; atrocious assault and battery, 3--5 years; and escape, 2--3 years--the sentences to run consecutively.

Beginning in February 1954, defendant, with the help of fellow inmates who have exhibited the greatest industry and ingenuity in framing his successive applications, has succeeded in presenting various aspects of his case to the Burlington County Court, this court, our Supreme Court, the United States District Court of New Jersey, the Third Circuit Court of Appeals, and the United States Supreme Court.

Defendant and his two companions first applied for leave to appeal In forma pauperis from the dismissal of their motion in the Burlington County Court to vacate or correct illegal sentences. This was denied April 6, 1954. Defendant then made a similar application on his own behalf; it, too, was denied April 27, 1954. He next instituted a formal appeal from the latter denial. The appeal was dismissed on July 23, 1954, with a Per curiam opinion. Defendant's next application to us was for permission to appeal In forma pauperis from the denial of a writ of Habeas corpus by the Superior Court, Law Division, sitting in Burlington County. The application was denied, and thereafter our Supreme Court denied defendant and appeal.

In October 1955 defendant again applied for leave to appeal from the Burlington County Court's order of the previous month denying him a hearing on his application for a writ of Habeas corpus. We granted leave to appeal. The appeal resulted in an annulment of the order dismissing defendant's petition for the writ and a remand to the County Court for a hearing. State v. Forsythe, 38 N.J.Super. 578, 120 A.2d 127 (App.Div.1956). The hearing was held and the County Court entered an order denying the petition. Defendant then applied to us, through retained counsel, for leave to appeal In forma pauperis. The application was granted. The matter was briefed and orally argued, and resulted in a decision of this court on October 11, 1956 affirming the County Court action. State v. Forsythe, 42 N.J.Super. 275, 126 A.2d 208 (App.Div.1956). Our Supreme Court denied further appeal.

Defendant thereafter again applied for the writ, which was denied by the Burlington County Court on October 30, 1957. His application for leave to appeal In forma pauperis from that order was denied by this Court in November 1957. Our Supreme Court thereafter denied defendant's petition for certification.

The present application for leave to appeal involves the County Court's denial on April 1, 1959 of a hearing on defendant's renewed application for the writ.

Defendant has also resorted to the federal courts. In February 1955 the United States District Court...