State v. Moore

• Citation: 21 N.J.Super. 419,91 A.2d 342
• Decision Date: 08 September 1952
• Docket Number: No. A--494,A--494
• Parties: STATE v. MOORE. . Considered
• Court: New Jersey Superior Court – Appellate Division

Page 419

21 N.J.Super. 419

91 A.2d 342

STATE v. MOORE.

No. A--494.

Superior Court of New Jersey Appellate Division.

Considered Sept. 8, 1952.

Decided Sept. 18, 1952.

H. Russell Morss, Jr., Elizabeth, (Edward Cohn, Elizabeth, attorney) for plaintiff-respondent.

David Solomon Moore, pro se.

Before Judges EASTWOOD, GOLDMANN and FRANCIS.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The defendant was indicted for murder and, on a plea of non vult, was, on February 9, 1948, sentenced by the Union County Court to serve a term in State Prison of not less than ten years nor more than ten years. On the defendant's application, the Mercer County Court denied his application for a writ of habeas corpus to review the sentence upon the ground that it was illegal. The defendant thereupon filed this appeal. A prior application for the correction of the alleged illegal sentence was similarly denied on the ground that it was not reviewable under habeas corpus proceedings. It is quite clear from defendant's second application, now under review, that he misconceived the appropriate procedure to effect a correction of the sentence. Under the circumstances, we think it may be helpful if we consider the meritorious question.

R.S. 2:138--3, N.J.S.A. (now R.S. 2A:113--3, N.J.S.A.), provides that if a plea of non vult or nolo contendere be accepted in a case of indictment for murder, the sentence to be imposed shall be either imprisonment at hard labor for life or the same as that imposed upon a conviction of murder in the second degree. R.S. 2:138--4 N.J.S.A. (now R.S. 2A:113--4, N.J.S.A.), provides that '* * * Every person convicted of murder in the second degree shall suffer imprisonment at hard labor not exceeding thirty years.' R.S. 2:192--4, N.J.S.A. (now R.S. 2A:164--17, N.J.S.A.), in effect at the time of the imposition of sentence, provides, inter alia:

'All sentences to the New Jersey state prison shall, on and after May twenty-sixth, one thousand nine hundred and thirty-two, be for a maximum and minimum term, except sentences for life. The maximum term shall not be in excess of the maximum term prescribed by law for the offense for which the offender was convicted. The minimum term shall not be less than one year. Commutation time for good behavior, as provided by law shall be allowed on both the maximum and minimum terms. Nothing contained in this section shall be construed to repeal or affect the power of the courts to suspend the imposition or execution of sentence and place the offender on probation.'

In New Jersey there exists a distinct separation of the power to impose sentence of detainment as a correctional measure for wrongs committed under our administration of criminal justice, wherein that power is vested in the judicial branch of the government of this State, and the authority and power to parole one so detained after consideration of credits provided for in the statutes, with such power being delegated to an executive board presently known as the State Parole Board. In the case of In re Fitzpatrick, 9 N.J.Super. 511 (Cty.Ct.1950), at pp. 519, 520, 75 A.2d 636; affirmed s4 N.J.Super. 213, 82 A.2d 8, (App.Div.1951), the separation of power is recognized, to wit:

'Under the 1844 Constitution, in effect at the time of imposition of petitioner's sentences, and under the present Constitution, distribution of the powers of our State Government has placed the functions of pardon and parole in the executive branch (Const.1844, art. V, par. 10; Const.1947, art. V, § 2, pars. 1, 2; R.S. 2:198--1 et seq., N.J.S.A.; R.S. 30:4--106.1 et seq., N.J.S.A.; P.L.1948, c. 84, R.S. 30:4--123.1 et seq., N.J.S.A., etc.).

'Traditionally, the granting of outright remission of guilt and the effects thereof, i.e., pardon, is the voluntary act of the sovereign and, thus, an executive function. The concept of parole is more modern and the distinctions between it and pardon are well defined. Pardon is a remission of guilt and a declaration of record by the authorized authority that a partiular individual is to be relieved of the legal consequence of a particular crime. Territory v. Richardson, 9 Okl. 579, 60 P. 244, 49 L.R.A. 440 (Sup.Ct.1900). Parole, on the other hand, is born of a broad statutory scheme, which, in the discretion of the paroling authority, permits the conditional release of an offender from a penal or correctional institution after he has served a portion of his sentence, under the continued supervision of the State and under conditions that permit his reincarceration in the event of misbehavior. Properly conceived, parole contains none of the elements of executive clemency, as in the case of pardon. The basic purpose of parole is, or should be, to bridge the gap between the closely ordered life within the prison walls and the freedom of normal community living. The concept of parole recognized in our present Constitution is effectuated by statute. Previously, the power to parole, inter alia, was lodged in the old Court of Pardons (R.S. 2:10--1 et seq., N.J.S.A.; R.S. 2:198--1 et seq., N.J.S.A.), and also, in the case of State Prison inmates, in the Board of Managers of such institution (R.S. 30:4--106.1 et seq., N.J.S.A.). Presently, the function of parole, in the case of State Prison inmates, is in the State Parole Board (R.S. 30:4--123.1 et seq., N.J.S.A.). Such former custodians of the power of granting parole had exercised it, and the State Parole Board presently functions, within the framework of the executive branch of the government.' (9 N.J.Super. 511, 75 A.2d 640).

Imposing minimum and maximum terms of sentence identically alike operates as a restriction against the exercise of powers of parole delegated exclusively to the State Parole Board. It withdraws from that Board the consideration and the discretionary authority to determine that the prisoner has rehabilitated himself and is worthy of return to normal association with society and in the event of misbehavior to reincarcerate him. It is tantamount to a direction that at the expiration of the minimum sentence the prisoner must be released regardless of his state of rehabilitation, a direction which is not only akin to an encroachment upon the authority of the State Parole Board to determine such questions, but also contrary to the modern conception that the major purpose of the imposition of a punishment for criminal wrongs is reformation, rather than the old and now discredited theory of atonement. In New Jersey, we think it may be justifiably stated that we presently adhere to the general policy that, while for the protection of society it is necessary to deprive the offender against society of his liberty for a greater or less period of time, yet such deprivation should be conducted as humanely as possible, and with the view of restoring him as a useful citizen to society, if that result is possible of realization.

Only the Legislature may ordain the punishment for crime and the sentencing court may not impose a sentence inconsistent therewith. State v. Dugan, 84 N.J.L. 603, 89 A. 691 (Sup.Ct.1913); affirmed 85 N.J.L. 730, 89 A. 1135 (E. & A.1914). The statutory language employed by the pertinent provision mandatorily directs the sentencing court to impose a 'maximum and minimum term, except sentences for life' in all sentences to the New Jersey State Prison. The words 'minimum' and 'maximum' have separae and distinctly opposing meaning. This clearly appears from their definitions set forth in Webster's New International Dictionary (2d ed., Unabridged) where the word 'minimum' is defined as: 'The least quantity or amount assignable, admissible, possible, etc., in a gfiven case;--opposed to maximum.' and 'maximum' is defined as: 'The greatest quantity or value attainable in a given case; or, the greatest value attained by a quantity which first increases and then begins to decrease; the highest point or degree; the time or period of highest number, greatest brightness, etc.;--opposed to minimum.' In 24 C.J.S., Criminal Law, § 1582, p. 111, it is stated: '* * * Under an indeterminate sentence law, the court cannot fix the minimum and maximum term of imprisonment to expire at the same time.' Citing Sanders v. State, 19 Ala.App. 367, 97 So. 294 (1923) and Ex parte Collins, 51 Mont. 215, 152 P. 40 (1915). In the Collins case, dealing with a statute which prescribed that '* * * both the minimum and the maximum time shall be named in such judgment, and such minimum time shall not be less than the minimum time named in law prescribing punishment for such crime or offense nor shall the maximum time named in such judgment exceed the maximum punishment named in such law; * * *.' Mr. Chief Justice Brantly, speaking for the court, stated:

'* * * Prior to the enactment of this statute the provisions of the Revised Codes imposing imprisonment in the state prison as punishment for felonies prescribed the extent of the term of service in each case, with reference to some fixing a term not to exceed a certain maximum number of years, and with reference to others providing that the imprisonment should not be less than a minimum nor greater than a maximum number of years, and requiring the court or the jury, according as the one or the other assessed the punishment, to designate a definite term below the maximum, if a maximum only were designated, or between the minimum and maximum number of years designated. Sections 8635 and 8572 of the Revised Codes are illustrative examples. With some exceptions, all convicts were, at the discretion of the Governor and state board of pardons, entitled to be paroled--those serving time sentences, at the expiration of one-half of the term, or, in cases of long terms, at the expiration of 12 1/2 years; and those serving life sentences, at the expiration of 25 years. Rev.Codes, § 9573. The purpose of the new enactment was to so change the rule relating to sentences as to require the court or jury to...