State v. Zee, A--517
| Decision Date | 09 October 1951 |
| Docket Number | No. A--517,A--517 |
| Citation | 16 N.J.Super. 171,84 A.2d 29 |
| Parties | STATE v. ZEE. |
| Court | New Jersey Superior Court — Appellate Division |
George B. Zee, pro se, for appellant.
Mitchell H. Cohen, Pros. of Camden County, Camden (Benjamin Asbell, Asst. Pros., Camden, appearing), for respondent.
Before Judges JACOBS, EASTWOOD and BIGELOW.
The opinion of the court was delivered
The defendant filed a petition for writ of habeas corpus attacking his 1941 conviction and sentence and on the basis thereof the writ was issued. It was discharged for the reasons set forth fully in the lower court's opinion (In re Zee, 13 N.J.Super, 312, 80 A.2d 480 (Cty.Ct.1951)) and appeal has been taken from this action.
The sole contention advanced by the defendant in the brief supporting his appeal is that his sentence to life imprisonment as an habitual criminal under R.S. 2:103--10, N.J.S.A. was invalid and should be set aside. He asserts that the three prior convictions required under R.S. 2:103--10, N.J.S.A. were not properly alleged and proved as required by our decisions. See State v Lutz, 135 N.J.L. 603, 52 A.2d 773 (Sup.Ct.1947); State v. Cubbler, 4 N.J.Super. 297, 67 A.2d 206 (App.Div.1949). The 1941 indictment of the defendant charged him with breaking and entering with intent to steal and larceny and expressly set forth three prior convictions for high misdemeanors including a conviction in 1935 for breaking and entering and larceny, a conviction in 1935 for receiving stolen goods, and a conviction in 1938 for breaking and entering and larceny. The defendant pleaded not guilty, waived trial by jury and was duly tried before the court. He was represented by counsel, testified in his own behalf, was found guilty and sentenced. He did not seek review of his conviction within the year then allowed by statute (R.S. 2:195--5, N.J.S.A.) and although he made application for writ of habeas corpus to our former Supreme Court to have his sentence set aside this was denied in October, 1943.
It is clear that the defendant's contention that the three prior convictions were not properly alleged in the indictment is without foundation in fact. It is true that the burden of proving the prior convictions, as well as the 1941 offenses charged in the indictment, rested with the State and, in the light of the court's action in finding the defendant guilty and sentencing him as an habitual criminal under R.S. 2:103--10, N.J.S.A., we assume that the proofs were sufficient. If the defendant believed that the proofs were insufficient he could have asserted that as ground for reversal on...
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...85 N.J.L. 613, 90 A. 259 (E. & A.1914); Ex parte Zee, 13 N.J.Super. 312, 320--322, 80 A.2d 480 (Law.Div.), aff'd P.C. State v. Zee, 16 N.J.Super. 171, 84 A.2d 29 (App.Div.1951), cert. den. 343 U.S. 931, 72 S.Ct. 766, 96 L.Ed. 1340 (1952); Comment Note: Cruel Punishment--Length of Sentence, ......
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