On writ of error to the Supreme Court, whose opinion is reported in 135 N.J.L. 386.
For the appellant, defendant in error, Gene R. Mariano, Prosecutor of the Pleas of the County of Camden.
For the respondent, plaintiff in error, Walter S. Keown.
The opinion of the court was delivered by
BURLING, J. Stephen Burns, alias Steve Burns, was indicted by the grand jury of the County of Camden during the December term, 1944. The first count of the indictment charged him with having on December 31st, 1944, committed an assault with a revolver with intent to rob one Fred J. DeMarco, and the second count charged a simple assault and battery upon said DeMarco. The indictment also charged in a third count certain allegations which were intended to bring the respondent within the effect of the Habitual Criminal
Act (R.S. 2:103-10 as amended by Pamph. L. 1940, ch. 219), the detail of which is set forth in the opinion of the Supreme Court. He was tried upon this indictment in the Camden County Court of Quarter Sessions and the verdict of the jury was rendered on March 26th, 1945, as follows: "They find the defendant, Stephen Burns, alias Steve Burns, Guilty of Assault with Intent to Rob and so say they all." He was sentenced on June 22d, 1945, to a term in State's Prison for the rest of his natural life. From this conviction and sentence, a writ of error was issued by the Supreme Court on June 14th, 1946. The judgment of the Supreme Court reversed the conviction and sentence of the plaintiff in error and directed a venire de novo issue. The new Criminal Appeal Act (R.S. 2:195A) not being effective until February 1st, 1947, assignments of error upon a bill of exceptions (R.S. 2:195-17) were filed in the Supreme Court and the entire record was returned and specifications of causes of reversal were filed in the Supreme Court, pursuant to R.S. 2:195-16. In this court grounds of appeal as provided by R.S. 2:195A-5 were not so designated but an assignment of errors was filed and served which will be treated as a compliance therewith and reads as follows:
"1. Because the judgment of the Supreme Court in said cause was entered in favor of the said Stephen Burns, alias Steve Burns, whereas it should have been entered in favor of the State.
"2. Because the Supreme Court reversed the conviction and sentence and ordered the issuance of a venire de novo whereas it should have affirmed the judgment and conviction and sentence of the Camden County Court of Quarter Sessions, and the said plaintiff in error, the State of New Jersey, prays: that the judgment aforesaid of Stephen Burns, alias Steve Burns, be in all things affirmed, and that the record and proceedings be remitted to the Supreme Court to be proceeded with according to law and the rules and practice of said court."
The appellant in its brief, first, contends that the prior convictions were so proven to justify the sentence. With this we disagree. Secondly, if otherwise, the sentence should be
corrected and conform to the conviction upon the first count. With this we do agree.
It is not necessary in the disposition of this case to review chronologically the soundness of the proceedings in relation to the manner of asserting and sufficiency of the evidence of the convictions of the other criminal offenses. Suffice it to say, the state failed to meticulously assert and prove either at the trial or upon sentence by an information convictions of high ...