Zwillman v. State

• Decision Date: 08 January 1931
• Citation: 152 A. 775
• Parties: ZWILLMAN v. STATE et al.
• Court: New Jersey Supreme Court

152 A. 775

ZWILLMAN

v. STATE et al.

Supreme Court of New Jersey.

Jan. 8, 1931.

Certiorari proceeding by Abraham Zwillman against the State of New Jersey and others, to review the dismissal of a writ of habeas corpus.

Writ denied.

Argued January term, 1931, before PARKER, CAMPBELL, and BODINE, JJ.

Minturn & Weinberger, of Newark, for prosecutor.

Joseph L. Smith, of Newark, for respondents.

PER CURIAM.

The present application seeks to review the dismissal by the Chief Justice of a writ of habeas corpus. The defendant was indicted on October 2, 1928, charged with the crimes of atrocious assault and battery and assault with intent to kill. Eleven different trial days were set, and on February 11, 1929, the defendant signed an application of waiver of trial. The application was granted and the trial proceeded before the court of special sessions of Essex county. The defendant was convicted as charged. On March 12, 1929, the defendant applied for a rule to show cause for a new trial. The court reserved decision, and on December 5, 1930, discharged the rule. On December 12, 1930, the defendant made a motion in arrest of judgment, which was denied by the court, and sentence was imposed. The sentence of the court was that the defendant be imprisoned in the Essex county penitentiary for a term of six months at hard labor and that he pay a fine of $1,000, and stand committed until the fine be paid.

After this sentence was imposed, the defendant applied to the Chief Justice for a writ of habeas corpus. Section 2 of the Habeas Corpus Act (2 Comp. St. 1910, p. 2639, § 2, subd. 2) provides: "That the following persons shall not be entitled to prosecute such writ: * * * 2. Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction."

Counsel for defendant contends, however, that the sentence by the Essex county court of quarter sessions was invalid, and that hence the writ should have gone and that this court must issue the writ of certiorari in order that the action of the Chief Justice may be reviewed.

The law in this state relating to the suspension of sentence by the trial judge is most exhaustively reviewed by Vice Chancellor Garrison in State v. Osborne, 79 N. J. Eq. 430, 82 A. 424. He there said at page 445 of 79 N. J. Eq., 82 A. 424, 430:

"As a general principle, I should say that either the successful or the defeated party in any litigated proceeding, civil or criminal, could move for judgment at any time when and after the matter was ripe for judgment.

"But if the defendant acquiesces, or does not object, it is difficult to see how he can be said to be injured. It is necessary to remember that the defendant has been convicted; that the court has the power to inflict the full measure of punishment; that if a defendant, thus in peril of suffering the full penalty of the law, is not visited with it many things may happen favorable to him, while nothing worse than his present plight can possibly happen. If a defendant thus circumstanced sees fit not to object, or to acquiesce, I do not see who else is concerned that can complain, nor how he can legitimately complain.

"I feel quite sure that, under the criminal law as administered in this state, where every right of the defendant is zealously guarded, and the state is held to have power to inflict punishment only when every step has been taken in exact accordance with legal procedure, there is no danger that a defendant will have any right violated, or be in any way oppressed, if the custom so long in vogue is continued.

"I am inclined to say, although, of course, not to find, because it is not in issue, that...