State v. Lenkowski

• Decision Date: 05 February 1953
• Docket Number: No. A--522,A--522
• Citation: 94 A.2d 845,24 N.J.Super. 444
• Parties: STATE v. LENKOWSKI.
• Court: New Jersey Superior Court — Appellate Division

Page 444

24 N.J.Super. 444

94 A.2d 845

STATE v. LENKOWSKI.

No. A--522.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 26, 1953.

Decided Feb. 5, 1953.

Joseph Butt, Elizabeth, argued the cause for appellant.

Benjamin Asbell, First Asst. Prosecutor of Camden County, Camden, argued the cause for respondent (Mitchell H. Cohen, Prosecutor of Camden County, Camden).

Before Judges EASTWOOD, BIGELOW, and JAYNE.

The opinion of the court was delivered by

JAYNE, J.A.D.

It is a fundamental policy deeply cherished by those amenable to the jurisprudence of our nation that the portals of our courts are always open to those who are in captivity within their boundaries and have meritorious reason to assert that their confinement is attributable to their deprivation of our protective requirements of due process of law. The maintenance of the policy is essential to the preservation of personal liberty, although like the presumption of innocence it suffers from the erosions of the rising tide of crime.

Pursuant to a sentence imposed upon him in 1941 by the Court of Oyer and Terminer of Camden County for the commission of crime, the defendant has been and continues to be incarcerated in the New Jersey State Prison. On March 4, 1952 he presented a petition to the Mercer County Court requesting the issuance of a writ of Habeas corpus by virtue of which the legality of his detention might be subjected to judicial inquiry. On April 14, 1952 his application for the issuance of the writ was denied and a hearing was not accorded him. He appeals.

We concern ourselves only with the propriety of the order declining to afford the defendant a hearing and in our review, so confined, we direct our attention to the substantive and hypostatic allegations, if any, of the petition. Assuredly, to be entitled to a writ of Habeas corpus the prisoner must allege facts which, if true, would warrant its issuance. Compare, In re Domako, 9 N.J. 443, 88 A.2d 606 (1952); State v. Moore, 21 N.J.Super. 419, 91 A.2d 342 (App.Div.1952); State v. Roleson, 22 N.J.Super. 40, 91 A.2d 623 (App.Div.1952). While it has been stated that the issuance of the writ is a matter of judicial discretion, its relation to the protection of personal liberty is so critical that where adequate cause is disclosed by the verified petition, the granting of the writ is recognized as a matter of right. Vide, 3 Bl.Comm., 133; In re Thompson, 85 N.J.Eq. 221, 96 A. 102 (Ch.1915); In re Van Winkle, 3 N.J. 348, 70 A.2d 167 (1950); State v. Cynkowski, 10 N.J. 571, 92 A.2d 782 (1952); Const.1947, Art. I. par. 14; R.S. 2:82--1, N.J.S. 2A:67--1, N.J.S.A. It is essentially a writ of inquiry.

In the present proceeding the petitioner under oath alleges that at the December term of the Court of Oyer and Terminer of Camden County he and four others were charged in the one indictment with the commission on December 24, 1939 of the crime of murder. This defendant was apprehended in 1941 in Philadelphia and upon a waiver of extradition was transported in custody to the Camden County Jail.

The further allegations of material significance contained in the petition are that following his arrest the prosecutor visited, conversed with and interrogated him in the county jail on approximately 15 different occasions at which he, the defendant, declared his innocence, and that it was during the period of those interviews that the prosecutor informed him that his presence with the others at the time of the commission of the crime made him equally responsible and that if he declined to admit his guilt he would 'burn in the electric chair.' The defendant avers that the prosecutor also stated to him that he possessed evidence to convict the defendant of robberies which would justify his imprisonment for life as an habitual offender, but upon an admission of guilt under the indictment for murder he would receive a prison sentence not exceeding 30 years which for considerations of good behavior would 'in all probability' require him 'only to serve about 10 years.'

The petition discloses that the defendant requested time to consider the remarks of the prosecutor and meanwhile counsel was appointed by the court to represent him, who subsequently advised him that his defense 'was hopeless.' It is asserted by the defendant that notwithstanding his innocence and in consequence of the representations made to him by the prosecutor and his court-appointed attorney, he resolved on September 12, 1941 in company with his attorney to enter a plea of non vult to the indictment for murder, whereupon he was sentenced to imprisonment at hard labor for the term of his natural life. Additionally the petition declares that prior to September 12, 1941 the four other defendants had been tried and three of them were acquitted, but it does not divulge whether this defendant was or was not aware of that event before the submission of his plea.

The present application was noticeably distinguishable in at least two particulars from those to which references have been made in some other recently reported decisions in that this petitioner was charged with a capital offense, his...