State v. Rose, 8943

Decision Date22 March 1956
Docket NumberNo. 8943,8943
Citation122 A.2d 189,40 N.J.Super. 40
PartiesSTATE of New Jersey, Plaintiff, v. Harry Joseph ROSE, Defendant. Misc. . Law Division, New Jersey
CourtNew Jersey County Court

Charles V. Webb, Jr., Prosecutor (Myron W. Kronisch, Newark, appearing), attorney for Essex County.

Joseph Butt, Elizabeth, attorney for Harry Joseph Rose.


The petitioner, Harry Joseph Rose, was granted a writ of Habeas corpus dated December 20, 1955. In order to acquire an understanding of the present action it is necessary to examine and study other pertinent previous legal proceedings involving this petitioner.

Harry Joseph Rose was indicted by the Essex County grand jury on the following three indictments, among others:

No. 1024, Term of 1949. A five-count indictment as follows:

Count 1, Breaking and entering by night, with intent to steal, at the store building of the A & P Food Stores in Newark, on September 21, 1949.

Count 2, Same as Count 1 except that the breaking and entering was done by day.

Count 3, Entering the same store on the same date as charged in Count 1.

Count 4, Larceny of cigarettes valued at $523.60.

Count 5, Knowingly receiving the goods described in Count 4.

No. 1025, Term of 1949. A two-count indictment as follows:

Count 1, Larceny of goods and chattels of the value of $383 on September 16, 1949, in Newark.

Count 2, Knowingly receiving the goods and chattels described in Count 1.

No. 1026, Term of 1949. A one-count indictment as follows:

'That the defendant did on September 24, 1949, by night, wilfully attempt to break and enter a store building in Montclair, New Jersey, with intent to steal.

On each of the above indictments, the petitioner, on March 6, 1950, entered a plea of not guilty, and on March 23, 1950 retracted such pleas of not guilty and entered pleas of Non vult. On April 26, 1950 he was sentenced on each of the three indictments.

Thereafter, the petitioner made application to Judge Hutchinson. This application was denied as having been filed prematurely (D--1 in evidence, May 1955 proceeding).

On March 25, 1955 petitioner filed his verified petition for correction of illegal sentence. This court held a hearing thereon, treating the application as if a writ of Habeas corpus had been granted, and made findings on the following grounds alleged by petitioner;

1. That his confession was forced from him by reason of fear of what would happen to his fiancee who was apparently apprehended by the Montclair police along with the petitioner;

2. That the sentences were not imposed to run consecutively and therefore must run concurrently;

3. That his counsel misstated in open court that he had been convicted of rape while in the service and had been sentenced to a long term of imprisonment, whereas in truth, the charge of rape was withdrawn by the young lady who made it and that counsel's misstatement in effect, prejudiced the sentencing judge;

4. That his motion for an adjournment of sentence in order to give him an opportunity to retract his plea of non vult was denied.

All the above allegations were disposed of adversely to the petitioner and his application for a rehearing was denied.

Thereafter, petitioner served upon the State a notice of appeal to the Appellate Division and a copy of a 'Brief For Appellant In Support Of Petition On Leave To Appeal' (S--2 in evidence). This appeal was thereafter abandoned.

On October 26, 1955, through present counsel, petitioner filed a complaint for a writ of Habeas corpus. This the court construed to be an application for rehearing of the previous application to correct an illegal sentence, and because there appeared to be no new grounds, the court denied the application.

Upon request of counsel, the court heard oral argument on the application for the writ. At that argument, the court's attention was called to a certification (later P-1 in evidence in this hearing). That certification raised new matters not theretofore considered and the Court thereupon granted the writ of Habeas corpus. State v. Fontano, 26 N.J.Super. 166, 97 A.2d 498 (App.Div.1953), affirmed 14 N.J. 173, 101 A.2d 559 (1953).

The hearing on the new writ was limited to the new issues raised in the certification and the question of the failure to have adequate representation by competent counsel. The question of adequacy of counsel led to a hearing on a variety of issues that included, among others, the legality of the Non vult pleas to the indictments, and the plea for leniency. On all matters the petitioner was given wide latitude in his proof. The limitation was based on authority of In re Sabongy, 18 N.J.Super. 334, 87 A.2d 59 (Cty.Ct.1952), and United States ex rel. McCann v. Thompson, 144 F.2d 604, 156 A.L.R. 240, (2d Cir.1944). See also State v. Fontano, supra, wherein at page 170 of 26 N.J.Super., at page 500 of 97 A.2d, Judge Jayne stated:

'We do not intend to imply that in the consideration of the subsequent petition the judge should entirely ignore the allegations of the applicant's former petition or petitions and the decision or decisions rendered in those proceedings. While the prior determinations are not to be recognized as conclusive, due recognition and regard should be accorded to the previous factual findings.'

And on pages 171 to 172 of 26 N.J.Super., on page 500 of 97 A.2d:

'We express the opinion that in the consideration of such an application the judge may properly examine the former petition, ascertain the facts therein alleged, the adequacy of the hearing and the scope of the prior factual findings, and where it is apparent that the grounds for relief are substantially identical with those alleged in the former petition concerning which the petitioner was afforded a full hearing and that there appears to have been no material change in circumstances, the judge may in the exercise of sound discretion ascribe influential, but not necessarily controlling, weight to the findings in the prior proceeding.'

This is a rule of reason. A prisoner should have the right to successive writs under proper circumstances. However in hearings upon successive writs, policemen, court reporters, court clerks and other public officials should not be called from their important duties to testify about matters already fully explored or to put into evidence and testify as to documents already considered by the court.

As will be shown by the record, the petitioner then filed an affidavit on February 15, 1956 in which he sought to disqualify this court. In this connection correspondence passed between the court and the petitioner (C--1 in evidence).

The court determined as a matter of law that the proceedings on the writ were civil in nature. In re Kershner, 9 N.J. 471, 474, 88 A.2d 849 (1952), and that N.J.S. 2A:15--49 et seq., N.J.S.A., applied. The court then heard the motion for disqualification and refused to grant the same. See Clawans v. Waugh, 10 N.J.Super. 605, 77 A.2d 519 (Cty.Dist.Ct.1950).

Turning now to the merits of the present hearing. The court will dispose of the questions raised by petitioner, keeping in mind that the 'burden of proving his charges (rests) affirmatively upon the defendant who obtained the writ.' State v. Cynkowski, 10 N.J. 571, 92 A.2d 782, 785 (1952). The issues raised by petitioner are as follows:

1. That pleas of Non vult to a five-count indictment (No. 1024) and a two-count indictment (No. 1025) were invalid and sentences imposed thereon cannot stand.

Counsel for the petitioner cites as authority therefor State v. Shelbrick, 33 N.J.Super. 7 at page 10, 109 A.2d 17, at page 18 (App.Div.1954):

'There is no doubt that a person cannot be guilty of larceny and receiving of the same property. 45 Am.Jur., Receiving Stolen Property, §§ 4, 10. The two offenses may be asserted in separate counts of an indictment (State v. Friedman, 98 N.J.L. 577, 120, A. 8, 9 (E. & A.1922)), even though convictions on both counts would be repugnant. State v. Verona, 93 N.J.L. 389, 108 A. 250 (E. & A.1919); 45 Am.Jur., Receiving Stolen Property, §§ 2, 13. But where the two offenses are joined and there is a jury question as to whether the defendant is the thief or the receiver, the proper practice is for the court to charge the jury that they should specify the particular offense if a verdict of guilt is found. State v. Dunlap, 103 N.J.L 209, 211, 136 A. 510 (Sup.Ct.1927). If there is no jury question as to one or the other of the counts, presumably that matter will be taken care of by appropriate motion of defense counsel. However, in the absence of such a charge or a request therefor, a general verdict of guilty without specification of counts would not be disturbed so long as there was evidence to support the conviction on one of the counts. State v. Verona, supra; State v. Huggins, 84 N.J.L. 254, 87 A. 630 (E. & A.1913.)'

The above italicized portion was not included in defense counsel's brief. As set forth above, the quotation from the Shelbrick case is the complete answer to the question here involved.

A plea to such an indictment is valid. State v. Friedman, 98 N.J.L. 577, 120 A. 8, 9 (E. & A.1922). A plea of guilty or Non vult is equivalent to a conviction after trial on the merits. State v. Compton, 28 N.J.Super. 45, 100 A.2d 304 (App.Div.1953). In the Friedman case, 98 N.J.L. at page 577, 120 A. at page 9, the court stated:

'The next point is that the verdict of guilty of larceny and receiving is void for repugnancy. We think not. An indictment joining counts for larceny and receiving is not improper pleading. State v. Braunstein, 84 N.J.L. 765, 87 A. 335. A valid judgment can be entered upon a general verdict of guilty on such an indictment (State v. Dugan, 65 N.J.L. 65, 46 A. 566), and in such case the proper practice is to sentence on the count for the highest crime. (State v. Verona, 93 N.J.L. 389, 108 A. 250.) That appears to have been the course pursued in the present case.'

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