State v. Janiec

• Decision Date: 17 July 1950
• Docket Number: No. A--64,A--64
• Parties: STATE v. JANIEC.
• Court: New Jersey Superior Court — Appellate Division

Page 29

9 N.J.Super. 29

74 A.2d 605

STATE v. JANIEC.

No. A--64.

Superior Court of New Jersey

Appellate Division.

Argued July 10, 1950.

Decided July 17, 1950.

George A. Gray, Assistant Prosecutor, Red Bank, argued the cause for the respondent (J. Victor Carton, Monmouth County Prosecutor, Asbury Park, attorney).

George Pellettieri, Trenton, attorney for defendant-appellant, argued the cause.

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

The defendant, Lawrence Janiec, Jr., appeals from a sentence of life imprisonment imposed upon him as an habitual criminal by the former Monmouth County Court of Quarter Sessions.

A summary of the pertinent facts will serve to clarify the issue. The September Term, 1946 Grand Jury of Monmouth County returned seven indictments against Janiec, among which were indictments No. 4218, charging robbery of and assault and battery upon one William L. McKelvey; No. 4219, making similar charges concerning one William Carter; and No. 4220, charging defendant with escape from jail. On December 3, 1946, the Grand Jury returned indictment No. 4234 intended to supersede indictment No. 4221, adding to the charge of defendant's prior convictions a fourth conviction of a high misdemeanor. The trial of indictment No. 4220, on December 2, 1946, charging Janiec with escape from jail, resulted in a jury verdict of guilty. Indictments Nos. 4218 and 4219 were tried together on December 3, 1946, and the jury returned a verdict of guilty on all four counts. At his trials the defendant admitted on cross-examination certain prior convictions. The trial of indictment No. 4234 was set for December 4th. On that date, the court granted defendant's application for a continuance to December 11th, announcing that sentence on the three convictions on December 2d and 3d would be deferred to the same date. On December 11, 1946, the defendant entered a plea of not guilty to indictment No. 4234, but trial thereof was never moved. On this latter date, on the recommendation of the Prosecutor of the Pleas, the defendant was sentenced on indictment No. 4219 to life imprisonment under the Habitual Criminal Act. Indictment No. 4219 did not allege the prior convictions. Prior to the imposition of sentence, the Prosecutor presented to the court an information setting forth a record of defendant's alleged prior convictions, accompanied by a certified copy of the stenographic record of the testimony given by defendant admitting his prior convictions, certified copies of the prior convictions, and defendant's photograph and finger prints. The defendant, when interrogated by the court, refused to admit or deny the alleged prior convictions. On the robbery count in indictment No. 4218, the defendant was sentenced to the New Jersey State Prison for a term of twelve to fifteen years and a fine of $1,000; on indictment No. 4220, he was sentenced to two to three years in State Prison and a fine of $1,000.

Defendant contends (1) that the sentence of life imprisonment is improper and invalid; and (2) that R.S. 2:103--10, N.J.S.A., known as the Habitual Criminal Act, is unconstitutional and void.

We are satisfied that the life sentence imposed on the defendant was erroneous and must be set aside. R.S. 2:103--10, N.J.S.A., provides: 'Any person who or three separate occasions has been convicted of high misdemeanors in this State, or of crimes under the laws of the United States or of any other State or country, which crimes would be high misdemeanors if committed in this State, or whose convictions for such offenses in this State or under the laws of the United States or of any other State or country shall total three or more, and who shall thereafter be convicted of a subsequent offense enumerated in this subtitle, is hereby declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, shall impose a life sentence in the State Prison upon the person so convicted. As amended L. 1940, c. 219, p. 889, § 3.' The general rule is well settled that proof of every act necessary to make the law apply is essential; that the court may not take judicial notice of the record of prior convictions; that the burden of proving the prior conviction or convictions and the identity of the defendant as being the same person previously convicted rests with the State and must be established beyond a reasonable doubt. See Singer v. United States, 278 F. 415 (3 C.C.A.1921), certiorari denied 258 U.S. 620, 42 S.Ct. 272, 66 L.Ed. 795 (1922). The State here did not undertake to try the defendant on any indictment charging him with being an habitual criminal, but chose rather to present an information against him as hereinbefore discussed, and solely on the basis of the allegations thereof, moved that the sentence of life imprisonment be imposed upon him, notwithstanding the fact that defendant had not been apprised of the offense charged against him and was not given an opportunity to present his defense. The State argues that the Judge who imposed the sentence also presided at the trials and convictions of the defendant and, therefore, was fully informed of defendant's prior convictions; that the certified copies of the convictions, defendant's photograph and finger prints, and a certified copy of defendant's testimony admitting his prior convictions were before the court and that a further trial of the issue would have been a mere formality and would have served no useful purpose. It is the well settled rule that before the imposition of such a sentence, the defendant must be tried and convicted by a jury under an indictment specifically charging the prior convictions, or that a separate proceeding thereafter be undertaken before a competent court and jury to determine the liability of defendant to punishment as an habitual criminal and that, to meet the issue, the defendant has the same rights to a speedy trial, a time for preparation, assistance of counsel, compulsory process for witnesses, to be confronted with the witnesses against him, to require proof beyond a reasonable doubt, and to all other rights enjoyed by a defendant on trial for a criminal offense. 25 Am. Juris., 'Habitual Criminals', Sec. 31, p. 278. To impose a sentence of life imprisonment as an habitual criminal without conforming to the procedure mentioned, would be a clear violation of defendant's guaranties of due process under the Federal and State Constitutions. The refusal of the defendant at the hearing on the Information to either admit or deny his prior convictions was equivalent to a plea of not guilty and clearly imposed upon the State the duty to proceed to have the issue tried and determined before the court and a jury. Defendant's testimony as to his prior convictions at his trial was admitted solely for the purpose of affecting his credibility and the court so instructed the jury. At the presentation of the information, there was no formal offer of proofs of any kind as to defendant's prior convictions and his identity as the person named therein. The requisite procedure has been clearly defined by our courts and may be ascertained from the opinion of Mr. Justice Heher in State v. Lutz, 135 N.J.L. 603, at pages 604, 605, ...