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State v. Burns

Decided: April 2, 1947.

THE STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
STEPHEN BURNS, PLAINTIFF IN ERROR



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

For the plaintiff in error, Walter S. Keown.

For the state, Gene R. Mariano, Prosecutor of the Pleas.

Before Case, Chief Justice, and Justices Heher and Colie.

Colie

The opinion of the court was delivered by

COLIE, J. This writ of error brings up for review the conviction of plaintiff in error in the Camden County Court of Quarter Sessions. The indictment in one count charged Stephen Burns, alias Steve Burns, with having, on December 31st, 1944, committed "an assault with a revolver with intent to rob" and in another count with a simple assault upon one Fred DeMarco. The indictment also charged as follows:

"AND THE GRAND INQUEST aforesaid, upon their respective oath aforesaid do FURTHER PRESENT that the said Stephen Burns, alias Steve Burns, was heretofore duly charged, arraigned, convicted and sentenced for the high misdemeanor of Larceny, in the Common Pleas Court of Buffalo, N. J. on December 13, 1922; and that the said Stephen Burns, alias Steve Burns, was heretofore duly charged, arraigned, convicted and sentenced for the high misdemeanor of Receiving

Stolen Goods, in the Common Pleas Court of Elmira, N.Y. on May 5, 1923; and that the said Stephen Burns, alias Steve Burns, was heretofore duly charged, arraigned, convicted and sentenced for the high misdemeanor of Larceny in the Common Pleas Court of Philadelphia, Pa., on August 8, 1929; and that the said Stephen Burns, alias Steve Burns, was heretofore duly charged, arraigned, convicted and sentenced for the high misdemeanor of Atrocious Assault and Battery, in the Camden County Court of Quarter Sessions, on July 12, 1934; and that the said Stephen Burns, alias Steve Burns, was heretofore duly charged, arraigned, convicted and sentenced for the high misdemeanor of Assault with Intent to Kill, in the Court of Quarter Sessions, Trenton, N.J. on September 20, 1934; all of which crimes had they been committed in this State, would be high misdemeanors and wherefore in the premises the said Stephen Burns, alias Steve Burns, is declared to be a habitual criminal according to the form of the statute in such case made and provided and against the peace of this State the government and dignity of the same."

This language was clearly intended to bring plaintiff in error within the operation of the Habitual Criminal Act. R.S. 2:103-10, as amended Pamph. L. 1940, ch. 219, p. 889.

"Any person who on three separate occasions has been convicted of high misdemeanors in this state, or of crimes under the laws of the United States or of any other State or country, which crimes would be high misdemeanors if committed in this State, or whose convictions for such offenses in this State or under the laws of the United States or of any other State or country shall total three or more, and who shall thereafter be convicted of a subsequent offense enumerated in this subtitle, is hereby declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, shall impose a life sentence in the State Prison upon the person so convicted."

The specifications of causes for reversal and assignments of error number thirty-two and thirty-four, respectively. Plaintiff in error briefs them under seven points ...


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