State v. Giberson

• Decision Date: 20 November 1922
• Docket Number: No. 52/631.,52/631.
• Citation: State v. Giberson, 94 N.J.Eq. 25, 119 A. 284 (N.J. Ch. 1922)
• Parties: STATE v. GIBERSON.
• Court: New Jersey Court of Chancery

119 A. 284

STATE

v. GIBERSON.

No. 52/631.

Court of Chancery of New Jersey.

Nov. 20, 1922.

(Syllabus by the Court.)

Application in Chancery for Writ of Error from Supreme Court.

Iva Giberson was convicted of murder in the first degree, and is now heard on application for writ of error" from the Supreme Court on such conviction with judgment of life imprisonment.Application denied.

William Howard Jeffrey, of Toms River, and Charles M. Atkinson, and James MercerDavis, both of Camden, for applicant.

WALKER, Ch.This is an application for a writ of error from the Supreme Court in behalf of Iva Giberson, convicted in the Ocean oyer and terminer of murder in the first degree, with recommendation to imprisonment at hard labor for life, under P. L. 1919, p. 303, which carries with it that sentence, which has been imposed.The application is made under the act of 1795(Pat. L.p. 103), which provides in section 13, that writs of error in all criminal cases, not punishable with death, shall be considered as writs of right and issue of course, and in all criminal cases, punishable with death, writs of error shall be considered as writs of grace, and shall not issue but by order of the chancellor for the time being.This is a jurisdiction vested in the chancellor as a statutory magistrate or agent.SeeIn re Prudential Ins. Co., 82 N. J. Eq. 335, 88 Atl. 970.But the proceeding, not being one in the court of chancery, is nevertheless, to be entitled in that court and filed with the clerk thereof.P. L. 1915, p. 28.

In 1878(P. L. 80), the Legislature amended the Paterson Act, in terms, so as to make writs of error in criminal cases punishable with death, writs of right instead of writs of grace, by omitting the provision for the chancellor's order and expressly providing that such writs should issue as of course out of the Court of Errors and Appeals, and this amendment has been carried forward since and is now section 134 of the Criminal Procedure Act(2 Comp. Stat. 1910, p. 1816, 1862).Its constitutionality has been considered, but never determined.

In Kohl v. State, 59 N. J. Law, 195, 35 Atl. 652, the Court of Errors and Appeals, considering the amendment of 1878, left undecided the question whether the authority of the Supreme Court, dependent upon the allocatur of the chancellor, is a jurisdiction guaranteed by the Constitution, but observed that, if it were not, it forms no impediment to the legislative grant of the writ of error as a writ of right out of the Court of Errors and Appeals in all cases punishable with death; that if it be, it narrows that grant only so far as the jurisdiction of the Supreme Court extends, leaving the convict entitled to his writ of error out of the Court of Errors and Appeals whenever the chancellor refuses to order the writ of grace out of the Supreme Court.In the Kohl Case the defendant, who had been convicted of murder in the first degree and sentenced to be hanged, caused a writ of error to be issued from the Supreme Court, which, on motion of the prosecutor, was dismissed by that tribunal because it had not been allowed by the chancellor.That action was reviewed by the Court of Errors and Appeals in Kohl v. State, supra, and that court held that the writ sued out by the plaintiff in error was neither the writ of grace provided by the act of 1795 nor the writ of right given by the act of 1878, and was therefore properly quashed.Since this decision, which was in the year 1896, it has been the universal practice to apply to the chancellor for allowance of a writ of error in a criminal case after judgment of death pronounced, and if he allowed the writ it issued from the Supreme Court as a writ of grace, if he refused it, it issued from the Court of Errors and Appeals as a writ of right.But in some cases, capital in character, where the judgment has been imprisonment instead of death, the convicts have sued out writs of error from the Supreme Court, assuming them to be writs of right, notably in the two cases now about to be mentioned.

(1) In State v. Mowser, 91 N. J. Law, 395, 103 Atl. 805, the defendant was convicted of murder in the first degree with recommendation to life imprisonment.A writ of error was issued out of the Supreme Court, without the order of the chancellor, and Justice Swayze in that tribunal, reviewing the conviction, observed that no question has been made as to the propriety of that course, and it was assumed that the case was not one punishable with death, since the jury recommended life imprisonment.This case(State v. Mowser) went to the Court of Errors and Appeals, where it was reversed, but on ground not involving the point under discussion here, which was not mentioned.State v. Mowser, 92 N. J. Law, 474, 106 Atl. 416, 4 A. L. R. 695.

(2) In State v. Barone(N. J. Sup.)115 Atl. 669, the defendant, on an indictment for murder, was convicted of murder in the first degree with recommendation to imprisonment for...