State v. McCall
| Decision Date | 13 August 1953 |
| Docket Number | No. A--343,A--343 |
| Citation | 27 N.J.Super. 157,99 A.2d 153 |
| Parties | STATE v. McCALL. |
| Court | New Jersey Superior Court — Appellate Division |
J. Leroy Jordan, Elizabeth, argued the cause for defendant-appellant.
H. Russell Morss, Jr., Prosecutor of Union County, Elizabeth, argued the cause for plaintiff-respondent.
Before Judges GOLDMANN, SMALLEY and SCHETTINO.
The opinion of the court was delivered by
SMALLEY, J.S.C. (temporarily assigned).
This is an appeal from a conviction under an accusation charging the defendant-appellant, Edward S. McCall, hereinafter referred to as 'defendant,' as an habitual criminal in accordance with the provisions of N.J.S. 2A:85--12, N.J.S.A.
On October 9, 1952 the defendant was convicted for a violation of N.J.S. 2A:94--1, N.J.S.A. (breaking and entering) arising out of charges contained in Indictment 257, Union County grand inquest, May stated session, 1951.
On October 16, 1952, the Prosecutor of the Pleas of Union County filed accusation 1-H-A in two counts charging the defendant with being an habitual criminal, in that previous to the conviction of October 9, 1952 the defendant had been convicted on 'three separate occasions' of crimes which are high misdemeanors under the laws of this State. The pertinent part of the accusation (1--H--A) is as follows:
'On the 13th day of November, 1941, in the Union County Court of Common Pleas and Quarter Sessions, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Forgery upon the following allegation:
'Allegation No. 103, May Term, 1941, for a violation of R.S. 2:132--1 (Forgery);
'On the 29th day of July, 1943, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following allegations:
'Allegation No. 36, May Term, 1943, for a violation of R.S. 2:115--1 ();
'Allegation No. 37, May Term, 1943, for a violation of R.S. 2:115--1 ();
'Allegation No. 39, May Term, 1943, for a violation of R.S. 2:115--1 (); 'Occasion No. 3.
'On the 26th day of April, 1945, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following indictments:
'Indictment No. 45, October Term, 1943, for a violation of R.S. 2:115--1 ();
'Indictment No. 46, October Term, 1943, for a violation of R.S. 2:115--1 ();
'Indictment No. 47, October Term, 1943, for a violation of R.S. 2:115--1 (Burglary; breaking and entering by night);
'Indictment No. 49, October Term, 1943, for a violation of R.S. 2:115--1 ().
'Wherefore, said defendant is subject to the penalties of N.J.S. 2A:85--8, 9 and 12, (N.J.S.A.), against the peace of this State, the government and dignity of the same.
'Second Count.
'Edward Cohn, Esq., Prosecutor of the Pleas of the County of Union further alleges that:
'1. On October 9, 1952, the defendant Edward Samuel McCall, also known as Edward S. McCall, also known as Edward McCall, also known as Eddie McCall, was convicted in the County Court of Union County of a high misdemeanor, to wit: Breaking and Entering (N.J.S. 2A:94--1, N.J.S.A.), and is awaiting sentence therefor.
'2. Said defendant is an habitual criminal in that previous, to the above conviction, the above described defendant had been convicted on more than three separate occasions, to wit:
'Eight separate occasions, all being crimes which are high misdemeanors under the laws of this State, upon which he was sentenced, to wit:
'On the 13th day of November, 1941, in the Union County Court of Common Pleas and Quarter Sessions, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Forgery upon the following allegation:
'Allegation No. 103, May Term, 1941, for a violation of R.S. 2:132--1 (Forgery);
'On the 29th day of July, 1943, in the Union County Court of Common Pleas and Quarter Sessions, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Burglary upon the following allegation:
'Allegation No. 36, May Term, 1943, for a violation of R.S. 2:115--1 ();
'On the 29th day of July, 1943, in the Union County Court of Common Pleas and Quarter Session, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Burglary upon the following allegation:
'Allegation No. 37, May Term, 1943, for a violation of R.S. 2:115--1 ();
'On the 29th day of July, 1943, in the Union County Court of Common Pleas and Quarter Sessions, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Burglary upon the following allegation:
'Allegation No. 39, May Term, 1943, for a violation of R.S. 2:115--1 ()
'On the 26th day of April, 1945, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following indictment:
'Indictment No. 45, October Term, 1943, for a violation of R.S. 2:115--1 ();
'On the 26th day of April, 1945, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following indictment:
'Indictment No. 46, October Term, 1943, for a violation of R.S. 2:115--1 ();
'On the 26th day of April, 1945, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following indictment:
'Indictment No. 47, October Term, 1943, for a violation of R.S. 2:115--1 (); 'Occasion No. 8.
'On the 26th day of April, 1945, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following indictment:
'Indictment No. 49, October Term, 1943, for a violation of R.S. 2:115--1 ();
'Wherefore, said defendant is subject to the penalties of N.J.S. 2A:85--8, 9 and 12 (N.J.S.A.), against the peace of this State, the government and dignity of the same.'
Thereafter, on December 2, 1952, the defendant stood trial on the second count, the first count having been abandoned by the State, and on December 3, 1952 a verdict of guilty was rendered. This resulted in a mandatory sentence being imposed upon the defendant on December 19, 1952, committing him to the State Prison for the remainder of his natural life, as was required by N.J.S. 2A:85--12, N.J.S.A.
During the trial the defendant successfully attacked the record of his 1941 conviction of the crime of forgery, and the trial court granted defendant's motion to void the record of the above mentioned conviction.
At the conclusion of the evidence and summation by counsel the court in its charge, after telling the jury that allegation 103, May term 1941, for violation of R.S. 2:132--1, N.J.S.A. (forgery), had been stricken, then proceeded to refer in his charge to 'occasions' 2 to 8 inclusive, and further stated that the first 'occasion' in the second count was to be entirely disregarded by the jury and to further disregard any evidence concerning this particular 'occasion,' and continued,
'I will instruct the jury that the fact that the defendant was sentenced in some cases on the same day does not constitute a conviction which is not separate.'
It appears that the jury then retired, but sought further instruction. Juror No. 10 stated,
'I want to know on these accusations and charges where the prisoner was convicted at one time for three or more acts or breaking, entering and committing burglary, whether that constitutes one misdemeanor or four misdemeanors?'
At 5:30 P.M., the court received a note from the jury stating, The following colloquy occurred:
'The Court: * * * Do I understand that the jury reports a disagreement?
'Mr. Ali (No. 1): Yes, that's right.
'The Court: Is that the report of the jury?
'Mrs. Glacken (No. 10): I understood the question was what would happen to the defendant, if we didn't agree.
'The Court: Do I understand that the jury is reporting that they cannot agree on a verdict?
'Mr. Ali (No. 1): No, our question was what would happen to the defendant if we didn't reach a unanimous agreement?
'The Court: If the jury cannot reach an agreement, do you report a disagreement?
'Mr. Ali (No. 1): Yes, sir, at this time we report a disagreement.
'The Court: Is that true?
'Mr. Ross (No. 4): I would like one more chance.
'Mr. Morss: Sir, will you...
To continue reading
Request your trial
-
State v. Taylor
...(App.Div.1970); State v. Leonardo, Supra, State v. Fair Lawn Service Center, 20 N.J. 468, 120 A.2d 233 (1956); State v. McCall, 27 N.J.Super. 157, 99 A.2d 153 (App.Div.1953), vac. 14 N.J. 538, 103 A.2d 376 (1958); State v. Morrison, 25 N.J.Super. 534, 96 A.2d 723 (App.Div.1953); State v. Pe......
-
State v. Costagliola
...v. Henson, 66 N.J.L. 601, 50 A. 468 (E. & A.1901); Stewart v. Stewart, 93 N.J.Eq. 1, 114 A. 851 (Ch. 1921). In State v. McCall, 27 N.J.Super. 157, 99 A.2d 153 (App.Div.1953), where the court interpreted the word 'conviction' in the context of a criminal statute, it concluded that the Legisl......
-
Tanzer v. United States
...the form of sentence does not affect the finality of the judgment. Winn v. Commonwealth, Ky.1957, 303 S.W.2d 275; State v. McCall, 1953, 27 N.J.Super. 157, 99 A.2d 153, 161; People v. Funk, 1948, 321 Mich. 617, 33 N.W.2d 95, 5 A.L.R.2d 1077; People v. Rave, 1936, 364 Ill. 72, 3 N.E.2d 972; ......
-
State v. McCall
...entered in the Union County Court in December 1952, was affirmed by the Superior Court, Appellate Division, on a divided vote, 27 N.J.Super. 157, 99 A.2d 153. The defendant filed an appeal as of right to this court. N.J.Const.1947, Art. VI, Sec. V, par. 1, clause (b); R.R. The record disclo......