On writ of habeas corpus.
On the basis of a verified petition alleging his unlawful imprisonment in the New Jersey State Prison, the writ of habeas corpus was issued to George B. Zee under the authority of R.S. 2:82-1, et seq. The State made its return and justified its detention of petitioner in conformity with a commitment of the former Camden County Court of Quarter Sessions, evidencing that on October 22, 1941, there was imposed upon him therein a sentence to the state prison for the duration of his natural life. Conviction had been had on an indictment charging breaking, entering and larceny and also prior convictions of defendant of three high misdemeanors, and sentence was imposed upon him under R.S. 2:103-10, as amended L. 1940, c. 219, p. 889, § 3.*fn1
The hearing on the writ accomplished little, except to provide a general factual basis for the legal contentions of the petitioner, and his case is determinable without further amplification of this factual record.
The principal contentions of petitioner deal with the failure of the State at trial to offer adequate proof of his previous convictions of crime as alleged in the indictment; his claim that the statute mentioned, which is a part of the Habitual Criminal Act, is unconstitutional as ex post facto legislation; that the statute is also unconstitutional as providing cruel and unusual punishment for the offense which may precipitate its application, which may be a comparatively minor violation
of the criminal law; and finally, that he was denied, unlawfully, a trial by jury in violation of his constitutional right thereto. The petitioner asserts that on each and every one of these grounds the court lacked jurisdiction to convict and sentence him and such claimed lack of jurisdiction is indeed the only basis on which he can seek the intervention of this court on habeas corpus. In re Caruso , 135 N.J.L. 522 (Sup. Ct. 1947).
There is no doubt that the application of the Habitual Criminal Act depends upon the furnishing of adequate proof of the prior offenses, for it is well settled that proof of every act necessary to make the law apply is essential; that the court may not take judicial notice of the record of prior convictions; that the burden of proving the prior convictions and the identity of the defendant as being the same person previously convicted rests with the State and must be established beyond a reasonable doubt. State v. Lutz , 135 N.J.L. 603 (Sup. Ct. 1947); Singer v. United States , 278 Fed. 415 (3 C.C.A. 1921); State v. Janiec , 9 N.J. Super. 29 (App. Div. 1950); State v. Burns , 136 N.J.L. 601 (E. & A. 1948).
But, though a failure to meet these standards at trial will invalidate the conviction on appeal, such deficiency in proof does not go to the jurisdictional capacity of the court and hence is not remediable on habeas corpus. In re Caruso, supra; In re Hall , 94 N.J. Eq. 108 (Ch. 1922); In re Scridlow , 124 N.J.L. 342 (Sup. Ct. 1940); In re Cooley , 12 N.J. Super. 97 (Cty. Ct. 1951). That writ may not be used in lieu of appeal. In re Rose , 122 N.J.L. 507 (Sup. Ct. 1939). The fact that the time for appeal has expired is of no moment. Ex Parte Hill , 2 N.J. Super. 598 (Law Div. 1949); In re Tremper , 126 N.J. Eq. 276 (Ch. 1939).
The petitioner initially challenges the constitutionality of the statute, which he asserts is ex post facto because it permits that there be shown in evidence against the defendant charged thereunder, previous criminal offenses committed before the effective date of the act. The act as it existed prior
to amendment, L. 1927, c. 263, § 1, p. 483,*fn2 describes the relevant prior offenses, in part, as those entailing service of state prison sentences imposed thereon, whereas the act as amended in 1940, supra , has no such limitation and depends only upon convictions of crime of the grade of high misdemeanors, regardless of the sentences imposed thereon. Petitioner deems this particularly apropos to his case because the previous offenses pleaded against him all antedated the amendment of the statute and on one of them he was granted probation and was not sentenced to the state prison. Hence, he argues that insofar as the application of the amended act is made to depend on previous offenses of different character than those mentioned in the law in effect when those offenses were committed (L. 1927, supra), the Habitual Criminal Act, as so amended, is ex post facto in that it alters the grade of proofs necessary to bring him within its orbit. This argument is akin to the legal assaults which have been made on habitual offender statutes, namely, that the act punishes the prior offenses and hence is ex post facto.
This reasoning is fallacious. Habitual offender statutes, such as the one in effect here, do not undertake to punish again for the prior offenses. They enhance the punishment for the subsequent offense. A statute is not constitutionally offensive which enhances the punishment for the offense which culminates the repetitive criminal conduct, even though the prior offenses occurred before the statute was enacted or became ...