On error to Hudson County Court of Quarter Sessions.
For the plaintiff in error, Thomas H. Brown.
For the state, Walter D. Van Riper, Attorney-General; Simon L. Fisch, Assistant Attorney-General.
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Tersely stated the dispositive question for decision on the facts of this case is whether the re-sentencing of the plaintiff in error infringes the fundamental requirements of due process of law -- of fair play.
Our answer to the question is in the affirmative. A statement of the undisputed events and the dates upon which they occurred, as disclosed by the record submitted, consisting of a return to the writ of error and depositions taken on the ancillary writ of certiorari to review the re-sentencing of the plaintiff in error, hereafter referred to as defendant, will lay bare the rudimentary basis upon which we reach our stated answer.
In April of 1943, the December term (1942) grand jury of Hudson County handed up two indictments, in which
defendant was one of the persons named therein, to the Court of Quarter Sessions for trial. By one indictment (No. 297) defendant was charged with "keeping a gaming resort," and by the other (No. 298) he was charged with "bookmaking on horses." He entered a plea of "not guilty" to each indictment. On April 18th, 1944, he retracted his pleas of "not guilty" and pleaded "non vult."
On May 5th, 1944, the day set for sentence, Judge Roberson sentenced defendant to state prison at hard labor for a maximum term of "three (3) years" and a minimum term of "one (1) year" and thence until "costs of prosecution" were paid, but he "suspended" the operation of the "prison sentence," and fined defendant "a total of $1,000 and costs to cover" both indictments and directed that defendant "pay the fine and costs through the probation office." Pursuant to that sentence, defendant paid $45 on account of the fine and costs.
On June 9th, 1944, the Attorney-General (in charge of the office of prosecutor of the pleas of Hudson County), in accordance with a fixed schedule, caused raids simultaneously to be made, at or about 3:30 P.M., on gambling places in that county. As a result of these raids some 60 or 70 persons were found in the places raided and they were arrested on the spot without complaints and warrants. Among those arrested were defendant and some eight or nine other persons found in premises known as 140 48th Street, Union City, New Jersey. All arrested were taken to and arrived at the court house, in Jersey City, about 4:00 P.M. There, according to the defendant, he was kept in a court room from the time of his arrival until some time between 2:00 and 2:30 A.M., of the next day, June 10th, 1944; further that a court attendant would not permit him to use the telephone to call his wife to get his lawyer. During that time defendant, as well as all others, were interrogated, their statements taken, and complaints drawn. Arraignment of those apprehended began before ...