State v. Wimbush

• Decision Date: 27 February 1959
• Docket Number: Nos. A--304,A--570,s. A--304
• Citation: 148 A.2d 724,54 N.J.Super. 283
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Frank WIMBUSH, also known as Frank Blackwell, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 283

54 N.J.Super. 283

148 A.2d 724

STATE of New Jersey, Plaintiff-Respondent, v. Frank WIMBUSH, also known as Frank Blackwell, Defendant-Appellant.

Nos. A--304, A--570.

Superior Court of New Jersey Appellate Division.

Argued Feb. 25, 1959.

Decided Feb. 27, 1959.

Robert Queen, Trenton, argued the cause for appellant.

Edward J. Phelan, Asst. Prosecutor, Trenton, argued the cause for respondent (Stanley E. Rutkowski, Mercer County Prosecutor, Trenton, attorney).

Before Judges GOLDMANN, CONFORD and HANEMAN.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant appeals from a judgment of the County Court sentencing him to a term of 7 to 15 years in State Prison for the crimes of assault with an offensive weapon (N.J.S. 2A:90--3, N.J.S.A.) and carrying a concealed weapon (N.J.S. 2A:151--41, N.J.S.A.). He was sentenced as an habitual criminal (N.J.S. 2A:85--12, N.J.S.A.). Defendant does not challenge the finding of guilt of the crimes charged but raises certain procedural objections to his being sentenced as an habitual criminal.

On September 18, 1957 defendant was tried and convicted under an indictment charging him with the crimes of assault with an offensive weapon (two counts) and with carrying a concealed weapon (one count). No sentence was imposed at that time.

Pursuant to the County Court's direction, the prosecutor on October 9, 1957 filed an accusation alleging that defendant had been convicted of the above crimes on the stated date; further, that he had on three prior occasions been convicted of crimes classified as high misdemeanors, and consequently he was subject to the penalty provided by the Habitual Criminal Act, N.J.S. 2A:85--8 et seq., N.J.S.A. The prior convictions and sentences were: (1) in 1936, atrocious assault and battery, sentence to the Rahway Reformatory; (2) in 1945, breaking, entering, larceny and receiving, 2--3 year sentence in State Prison; and (3) in 1947, robbery, 2--3 year sentence in State Prison. In each of these cases defendant had retracted a former plea of not guilty and entered a plea of Non vult.

N.J.S. 2A:85--12, N.J.S.A., provides that any person convicted on three separate occasions of high misdemeanors, and who thereafter is convicted of a misdemeanor or high misdemeanor under the laws of this State, is an habitual criminal; and the court in which such fourth or subsequent conviction is had may impose upon the person so convicted a sentence in State Prison for any term of years or for life. N.J.S. 2A:85--13, N.J.S.A., sets out the procedure to be followed in such case:

'If at any time, before sentence, it shall appear that a person convicted of a misdemeanor or a high misdemeanor under the laws of this State has previously been convicted as set forth either in sections 2A:85--8, 2A:85--9 or 2A:85--12 of this Title, and it also appears to the court by whom such person is to be sentenced that the offenses resulting in such conviction are such as to warrant the imposition of a penalty greater than the maximum which may be imposed upon a person convicted of such misdemeanor or high misdemeanor who had not previously been convicted as aforesaid, then the court shall direct the prosecutor of the county in which such conviction was had to file an accusation accusing the said person of such previous convictions. Whereupon, the court in which such conviction was had, shall cause the said person to be brought before it and shall inform him of the allegations contained in such accusation and of his right to be tried as to the truth thereof, and shall require such person to plead to the accusation. If such person refuses to plead or remains silent or pleads not guilty, a not guilty plea shall be entered and a jury shall be impanelled to inquire whether said person is guilty as outlined in sections 2A:85--8, 2A:85--9 and 2A:85--12 of this Title, respectively.

'If the jury finds said person guilty or if he pleads guilty or non vult, the court may sentence him to the punishment prescribed in sections 2A:85--8, 2A:85--9 and 2A:85--12, as the case may be. * * *'

It was pursuant to N.J.S. 2A:85--13, N.J.S.A., that the County Court directed the prosecutor to file the above described accusation. A copy was served on defendant personally, and he was thereafter brought before the County Court where a plea of not guilty was entered. At the ensuing trial the State introduced in evidence copies of his prior convictions, along with his fingerprint records and photographs. Defendant admitted he was the identical party involved in the prior crimes. The jury found him guilty.

On February 14 defendant was sentenced under the accusation to a term of 7 to 15 years in State Prison as an habitual criminal. Defendant promptly appealed. The County Court and the prosecutor recognized that error had been committed, and on March 28, 1958 defendant was brought before the court, the sentence theretofore imposed on the accusation was vacated, and defendant sentenced to a term of 7 to 15 years in State Prison on the assault with offensive weapon and carrying concealed weapon indictment under which he had been found guilty the previous September. Defendant thereupon appealed that conviction.

The plain import of N.J.S. 2A:85--12 and 13, N.J.S.A., is that a fourth offender is to be sentenced to prison for his guilt of the offense for which he has been convicted (here assault with offensive weapon and carrying concealed weapon), taking into account his prior record. He is not sentenced for the substantive crime of being an 'habitual criminal.' That designation is merely a warrant for the imposition of a greater sentence for the fourth offense for which he has been convicted. State v. McBride, 15 N.J.Super. 436, 439, 83 A.2d 627 (App.Div.1951). The prior convictions are only a matter of aggravation of guilt in the repetition of criminal conduct, warranting the imposition of the heavier penalty ordained by the Legislature in the case of a convicted recidivist for the substantive offense presently dealt with. State v. Lutz, 135 N.J.L. 603, 604--605, 52 A.2d 773 (Sup.Ct.1947); Worbetz v. Goodman, 47 N.J.Super. 391, 404--405, 136 A.2d 1 (App.Div.1957).

The difficulty here, of course, arises from the court's error in imposing sentence for guilt of the several elements charged in the accusation, rather than for the crimes charged in the fourth indictment tried in September 1957--an error which it sought to correct by its judgment of March 28, 1958. Had the...