[10 NJSuper Page 422] The petitioner, David Tierson Graham, was convicted of the crime of incest with his infant daughter in the Mercer County Court of Quarter Sessions on September 22, 1947.
On October 3rd of the same year, he was sentenced to the New Jersey State Prison for a term of not less than seven years nor more than ten years.
On the representation that he is illegally confined in the State Prison, petitioner sought and obtained his writ of habeas corpus on the 20th day of October, 1950, returnable November 20th of this year, on the single issue that he was not present at the time the jury rendered its verdict of guilty in open court.
The State, in its memorandum filed, "disputes the factual basis for the application, and claims that the petitioner was present at the time the jury rendered its verdict."
This court heard the testimony offered and being satisfied that the petitioner was not in court at the rendition of the verdict by the jury, remanded the petitioner to the Mercer County Jail for trial.
Thereafter, this court, on being advised that its determination would require a further consideration by appeal, the request for the filing by this court of a short memorandum to complete the record seems in order.
The testimony adduced at the hearing on the writ disclosed that the trial judge and petitioner's counsel were not present when the jury rendered its verdict.
The petitioner testified that he was not present, that he was in the county jail and did not know the result until the next day when he was advised by certain individuals and by the reading of articles in the local newspapers.
The clerk of the court could not say that the defendant was present when the jury rendered its verdict and could not even determine from the minutes what time the jury brought in its verdict. One juror testified that she thought the petitioner was present when the verdict was rendered but "could not swear" that this was the fact.
This may be said to be a fair recital of the testimony offered at the hearing on the writ.
It was argued by the State that a writ of habeas corpus can not perform the functions of a writ ...