For the prosecutor, Raymond Chasan.
For the respondents, Horace K. Roberson, Prosecutor of the Pleas of the County of Hudson, and William W. Wimmer, First Assistant Prosecutor of the Pleas of the County of Hudson (William P. Gannon, Assistant Prosecutor of the Pleas of the County of Hudson, on the brief).
Before Justices Parker, Donges and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. Certiorari has been allowed to review the propriety of the action of the Court of Common Pleas of Hudson County, in discharging a writ of habeas corpus emanating from said court, on the petition of Thomas Ledbetter, the prosecutor herein. Factually, it appears that Ledbetter had been confined in the Hudson County penitentiary, at Secaucus, under a sentence of six months, imposed upon him on May 9th, 1946, following a conviction for an offense committed in this state. While so incarcerated, a detainer from the State of Georgia was lodged against Ledbetter with the Hudson County authorities, informing the authorities that Ledbetter had been convicted of burglary in the State of Georgia, and had been sentenced to imprisonment for a term of five years, in 1936, and had escaped from one of its penal institutions on February 9th, 1943, prior to the expiration of his sentence. In the habeas corpus proceedings, Ledbetter testified that he first learned that he was wanted in Georgia, on October 9th, 1946. He also testified that on November 4th, 1946, he was transferred from the Hudson County penitentiary, at Secaucus, to the Hudson County jail, in Jersey City. On November 4th, 1946, Ledbetter refused to sign a waiver of extradition and return to Georgia. Although the docket entries of the Hudson County Court of Common Pleas do not set forth the exact succession of events following November 4th, 1946, we are informed in respondents' brief, and it is not denied by the prosecutor herein, that on the same day, namely November 4th, 1946, Ledbetter was
brought before one of the judges of the Hudson County Pleas and informed that he had a right to a hearing on a writ of habeas corpus, and a right to counsel. The prisoner thereupon advised the court that he was represented by counsel, and the court allowed the prosecutor additional time, viz., until November 13th, 1946, within which his counsel could apply for a writ of habeas corpus to test the validity of his imprisonment, further stating that the hearing on the return could be had on the same day. On November 13th, 1946, Ledbetter was brought before the Pleas, but, it appearing that counsel for the prisoner was not in court, a representative of an organization interested in the prisoner's behalf requested an adjournment of the matter. There was no objection raised by the Prosecutor of the Pleas and the court thereupon fixed November 25th, 1946, as the date within which the prisoner's counsel could apply for a writ of habeas corpus, also stating, that the hearing on the return would be held on the same day. On November 25th, 1946, the prisoner was in court represented by counsel and a petition for a writ of habeas corpus was presented and allowed, returnable at 12:00 o'clock noon of the same day. The hearing, in the habeas corpus proceedings, was accordingly held, and resulted in a dismissal of the writ. Certiorari was allowed on November 29th, 1946, to review that action.
We are now asked to reverse the determination and order of the Hudson County Court of Common Pleas on two grounds: (1) that no return to the writ of habeas corpus was made as required by statute, and that, therefore, there was no justification made to appear to the Hudson County Common Pleas for the imprisonment and restraint of Ledbetter; and (2) that the restraint and imprisonment of Ledbetter were illegal, and the determination of the Hudson County Common Pleas in discharging the writ of habeas corpus was erroneous, in that the demand of the Governor of Georgia for the extradition of Ledbetter did not contain a statement by the executive authority of that state, that the person claimed had escaped from confinement, or had broken the term of his bail, probation or parole, as provided by the Uniform Extradition Law, R.S. 2:185-11.
Addressing our attention to ground (1) to the effect that the return to the writ of habeas corpus was improper, and not in compliance with the statutory provisions as set forth in R.S. 2:82-23, et seq., which require that the custodial officer upon whom the writ of habeas corpus is served, shall return the same, setting forth plainly and unequivocally whether he has or has not the party in his power or custody, or under his restraint, and if he has, the authority and true cause of the imprisonment or restraint, setting forth the same at large; together with a copy of the writ, warrant, or other written authority, authorizing the detention annexed thereto. The return is to be signed by the person making it. It is conceded that the specific procedural elements governing the return as set forth in the statutory pronouncement were not literally complied with. However, it appears that at the time of the hearing on the writ, the prisoner was in court, represented by counsel, and made no objection whatsoever to the admission of the various extradition papers from the State of Georgia. We conclude that his failure so to do, and his participation in the hearing on the merits, precludes him from now, for the first time, raising such objection. In Patterson v. State, 49 N.J.L. 326; 8 A. 305, this court, speaking through Mr. Justice Reed, said:
"But the mere failure of such custodian to return a warrant, or the fact that his return is imperfect, does not operate to discharge the prisoner. The recognition of such a rule would place in the hands of negligent or corrupt jailers the power to empty a penitentiary.
"Where the court or judge has reason to believe that a writ, order or record is in existence, which should be before the court or officer to enable complete justice to be done, the production of such paper can be compelled and the return amended. The court or justice, upon the return coming in, may examine, under oath, the officer or other ...