State v. Janiec
| Decision Date | 09 February 1953 |
| Docket Number | No. A--74,A--74 |
| Citation | 11 N.J. 397,94 A.2d 666 |
| Parties | STATE v. JANIEC. |
| Court | New Jersey Supreme Court |
J. Victor Carton, Monmouth County Prosecutor, Asbury Park, attorney for the State (George A. Gray, Asst. Prosecutor, Red Bank, on the brief).
Lawrence Janiec, pro se.
The opinion of the court was delivered by
The indictment presently under consideration charges the defendant in the first count with three prior convictions for high misdemeanors in the Counties of Passaic, Bergen and Mercer, respectively, and with having committed the crime of breaking and entering with intent to steal in a residence at Deal, New Jersey, on September 19, 1945. The second count charges grand larceny committed on the same occasion, after reiterating the prior convictions.
There was ample proof of the three former convictions and they were not denied by the defendant. He, when queried about them, denied recollection of the details, saying however: 'I remember being convicted but I can't give you the dates.'
The jury disagreed on the charge of breaking and entering but returned a verdict of guilty on the larceny count and on the charge of having been previously convicted of three high misdemeanors. On this finding, the defendant was sentenced to life imprisonment as an habitual criminal.
On appeal, the Appellate Division reversed the convictions, finding a supplemental charge to the jury embodied prejudicial error. A dissenting opinion holding to the contrary is the basis for this further appeal.
The State challenges the defendant's right to appeal on the grounds advanced, citing Rule 1:2--19(a) and Rule 1:3--2(c). It alleges the error, if any, was not such 'plain error' as is contemplated by the amendment to Rule 1:2--19(a) and, moreover, there is a violation of Rule 1:3--2(c), which provides, among other things, that if the questions involved on appeal include any not presented to the court below, this fact shall be noted. Under the rule, this requirement is in highest degree mandatory and admits of no exceptions. Ordinarily, no point will be considered which is no set forth in or necessarily suggested by the statement of questions involved. Roberts Electric, Inc., v. Foundations & Excavations, Inc., 5 N.J. 426, 75 A.2d 858 (1950). It is implicit, however, in the use of the word 'ordinarily' that the rule is not entirely without exception.
We need not attempt, in the present case, to establish a strict delimitation of its applicability. The defendant here is appearing Pro se and the sentence imposed by the trial court is life imprisonment. Under these circumstances we do not regard ourselves as being precluded from deciding the meritorious question presented in the briefs.
Rule 1:2--19(a) provides that error in the charge of the court shall be cause for reversal
The last-quoted sentence was added by amendment and it is upon this that the defendant relied in prosecuting his appeal on grounds not raised before or adjudicated by the trial court.
Admittedly, the court's instructions to the jury in the main charge were without error and no assertion to the contrary is made. In substance, it said the defendant could not be convicted as an habitual criminal unless the jury was satisfied beyond a reasonable doubt he had been convicted of three previous high misdemeanors and was also guilty of either the breaking and entering count or the grand larceny count or both. The court also told the jury the State had to establish the identity of the accused as the person formerly convicted of the three high misdemeanors set forth in the indictment.
After the jury had deliberated for nearly three and a half hours, it returned to the courtroom and asked: 'Can the jury bring in separate verdicts for, one, breaking and entering, and, two, grand larceny, or must they be found in one verdict?'
The court said in response:
The Appellate Division found error in the supplemental charge centering on the use of the word 'automatically.' It thought that although the jury rendered a separate verdict finding the defendant guilty of the three previous convictions, 'it is impossible to say whether this verdict followed 'automatically' upon a finding of guilt of grand larceny or resulted from a separate consideration of this issue and a determination from the evidence that such guilt had been shown beyond a reasonable doubt.' (20 N.J.Super. 471, 90 A.2d 101.)
The soundness of instructions is not to be judged by the meaning counsel...
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State v. Hawkins
...389, 154 A. 623 (E. & A. 1931); State v. Janiec, 20 N.J.Super. 471, 481, 90 A.2d 98 (App.Div.1952), rev'd on other grounds 11 N.J. 397, 94 A.2d 666 (1953). This because one jury has determined in effect that the persuasive proof was of a one-man conspiracy, an event which neither the law no......
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State v. Smith, A--140
...3 N.J. 516, 525, 71 A.2d 169, 173, (1950). See, also, State v. Kollarik, 22 N.J. 558, 566, 126 A.2d 875 (1956); State v. Janiec, 11 N.J. 397, 401, 94 A.2d 666 (1953); State v. Goodman, 9 N.J. 569, 588, 89 A.2d 243 (1952); State v. Bunk, 4 N.J. 461, 473--474, 73 A.2d 249, 19 A.L.R.2d 1316 (1......
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Janiec v. McCorkle, s. A--124
...The state appealed and the Supreme Court reversed, reinstating the verdict, sentence and judgment in the County Court. 11 N.J. 397, 94 A.2d 666 (1953). It is significant that Janiec did not challenge at the trial or on the appeals any of these three prior convictions in any way or on any gr......
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Wellmore Builders, Inc. v. Wannier, A--656
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