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State v. Pascal

Decided: January 7, 1946.


On writ of error to the Atlantic County Court of Quarter Sessions.

For the defendant in error, Lewis P. Scott, Prosecutor of the Pleas of Atlantic County, and David R. Brone, First Assistant Prosecutor of the Pleas.

For the plaintiff in error, Elias G. Naame and Irving I. Jacobs.

Before Brogan, Chief Justice, and Justices Parker and Oliphant.


The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. The plaintiff in error was sentenced to imprisonment in the state penitentiary for a minimum of fifteen months and a maximum of two years for a violation of the conditions that attached to his probation. The antecedent events were these: On June 8th, 1943, the plaintiff in error entered in the Atlantic County Court of Quarter Sessions a plea of non-vult to an indictment charging that he maintained a disorderly house for gambling purposes. Common Pleas Judge Loveland, then presiding, imposed sentence of one to two years in state's prison but suspended the sentence and placed the defendant, Pascal, on probation for three years and imposed a fine of $200 to be paid in installments to the probation officer of that county. On April 3d, 1945, the plaintiff in error was arrested by the chief probation officer of Atlantic County "for violation of probation" and two days later was served with a notice in letter form, signed by the probation officer, that he would be given a summary hearing on April 9th, 1945. The state produced evidence in proof of the charge that the conditions of probation had been violated by Pascal and he on his part did not take the stand.

We are asked to reverse the judgment under review because it is said that the trial court erred in denying the motion to dismiss the proceeding. The first motion to dismiss was urged at the time of the arraignment and before plea. The reason advanced was that the state failed to supply the defendant with information sufficient to inform him of the nature and character of the charges against him. The law which is pertinent to the matter under consideration is found in the statute, R.S. 2:199-4. It provides as follows:

"* * *. At any time during the probation period the court may issue a warrant and cause the probationer to be arrested for violating any of the conditions of his probation, or any probation officer, police officer, or other officer with power of arrest, upon the request of the chief probation officer, may arrest the probationer without a warrant; and a commitment by such probation officer setting forth that the probationer

has, in his judgment, violated the conditions of his probation shall be sufficient warrant for the detention of such probationer in the county jail, house of detention or local prison, when designated in the commitment, until he can be brought before the court. Such probation officer shall forthwith report such arrest or detention to the court and submit to the court a report showing the manner in which the probationer has violated his probation. Thereupon the court, after summary hearing, may continue or it may revoke the probation and the suspension of sentence, and may cause the sentence imposed to be executed or impose any sentence which might originally have been imposed."

The record shows that in the instant case the probation officer, on April 5th, 1945, in writing, advised Pascal that on April 9th, he would be charged with violation of probation; he was further advised of the prison sentence of "one to two years" which had been suspended and that he had been placed on probation for the ensuing three years and that his probationary period was still incomplete; that the probation officer had been informed that Pascal had violated his probation in that he became "involved in gaming and lottery commonly known as numbers;" and that at the hearing he might be represented by counsel to prepare and present such defense as he had. Much reliance on the argument of the first point is placed upon our decision in the case of State v. Haber, 132 N.J.L. 507. The facts and circumstances of that case, however, are so strikingly at odds with the facts and circumstances here that it cannot serve as an advantage to the plaintiff in error.

The balance of the argument under this point, in an endeavor to show that the plaintiff in error was not apprised sufficiently of the charge he was required to meet, consists of the citation of many cases where the legal issue was whether an indictment sufficiently informed a person charged of the character and nature of the alleged offense. ...

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