[12 NJSuper Page 409] On the representation that he is illegally confined in the New Jersey State Prison, petitioner, Edward Kneipher, was granted the writ of habeas corpus under the authority of R.S. 2:82-1, et seq. On the return of the writ, a
hearing was had, testimony taken and stipulations entered, projecting the following issues:
On May 3, 1944, petitioner was sentenced in the former Essex County Court of Quarter Sessions to serve a sentence of not less than two nor more than five years and he thereafter commenced the service of such sentence at the State Prison. At the expiration of the minimum term thereof, as reduced by the uniform commutation time credits allowed by law (R.S. 30:4-140), he was granted a license to be at large pursuant to R.S. 2:198-1, repealed L. 1949, c. 18, by the former Court of Pardons. Two of the several conditions imposed upon him by that court, the imposition of which was authorized, generally, by such statute, were as follows:
"6. If you are returned to prison by revocation of parole, the time between your release upon this license and your return to prison will not be taken into account as part of your sentence, * * *."
"7. You must not change your residence to another State, unless you have beforehand obtained permission from the Keeper."
The prisoner accepted his license to be at large on these and other conditions, as evidenced by his signature of acceptance thereof.
During the period of his enlargement under the license (measured by the unexpired maximum of his original sentence, less the uniform commutation credits to which he was entitled under R.S. 30:4-140), the prisoner left the State of New Jersey and failed to report periodically, as required by another condition of his license, and thereby violated certain of the conditions under which the license had been issued to him. For such reason, his parole was revoked on December 9, 1947, as authorized by the statute, R.S. 2:198-3, repealed L. 1949, c. 18, and later, on March 11, 1949, he was returned to the State Prison as required by R.S. 2:198-3, repealed L. 1949, c. 18. It is to be noted that such revocation was based on the breach of the conditions aforementioned and not upon the subsequent commission of any crime, and so far as the record shows the petitioner has not been convicted of any crime subsequent to the one on which he was originally sentenced and imprisoned.
The return to the writ predicates his present detention upon the foregoing sequence of events, the State contending that in accordance with the conditions upon which the license to be at large was granted petitioner, and the revocation of such as aforesaid, it properly holds him to serve the unexpired portion of the maximum of his original sentence. On the other hand, the petitioner contends that the time under his original sentence continued to run during the period he was "on the street," that is, during the time he was at large under his license, and innocent of conviction of subsequent crime or other lesser breach of condition of his license, that he may not be required to serve any portion of that time by reason of the revocation and, consequently, that he is entitled to immediate release.
This claim is based upon several grounds. Petitioner claims that during the period of his parole, time continued to run against his maximum sentence since he was still in the technical legal custody of the Keeper of the State Prison, pointing to certain terms of his license as follows:
"This license to be at Liberty, or Parole, is issued upon the following Security, Terms, ...