On application for writ of habeas corpus.
Petitioner, William Hodge, is confined in the New Jersey State Prison and on the basis of petitions filed under R.S. 2:82-1, et seq., N.J.S.A. , seeks issuance of the writ of habeas corpus to examine into the legality of his imprisonment.
On November 17, 1944, this petitioner was convicted in the former Mercer County Court of Quarter Sessions on an indictment charging him with the crime of robbery. The jury verdict of guilty, he alleges, was returned in his absence, late at night while he was in custody and, therefore, involuntarily absent from such proceeding. On November 24, 1944, he appeared before such court for sentence, and there was imposed upon him an "institutional" term at the former New Jersey Reformatory at Rahway. R.S. 30:4-146, N.J.S.A. , amended L. 1948, c. 60. This sentence potentially accommodated the statutory maximum term for the offense involved (R.S. 30:4-148, N.J.S.A.), which in the case of robbery amounts to 15 years. R.S. 2:166-1, N.J.S.A. He entered upon service of this term on November 24, 1944, was assigned institutional number 25379 and the date of November 24, 1959, was established of record as his maximum expiration
date. This, of course, is a gross date since the prisoner is entitled to earn work time credits under R.S. 30:4-92, N.J.S.A. , but not the more substantial credits available to those sentenced directly to the New Jersey State Prison under R.S. 30:4-140, N.J.S.A. Ex parte White , 10 N.J. Super. 600 (Cty. Ct. 1950); Ex parte Zienowicz , 12 N.J. Super. 563 (Cty. Ct. 1951).
Having assaulted a guard while so confined, petitioner was indicted for assault and battery and pleaded non vult in the appropriate court in Middlesex County, which, on July 19, 1945, sentenced him to serve not less than one and one-half nor more than two years in the New Jersey State Prison. He was forthwith taken to such prison and assigned a prison number, 24633. The sentencing judge in Middlesex County did not, in terms, order that this sentence should run consecutively to the former sentence then being served at Rahway, and in this posture such sentence would ordinarily run concurrently therewith. Ex parte DeLuccia , 10 N.J. Super. 374 (Cty. Ct. 1950). There is some doubt, however, that this rule would apply in the instant case because the sentences were to be served at different institutions, which would ordinarily require them to be served consecutively, even though not so specified by the court. U.S. v. Remus , 12 F.2d 239 (C.C.A. 6, 1926), cert. den. 271 U.S. 689, 46 Sup. Ct. 640, 70 L. Ed. 1153 (1926). It is unnecessary to decide this question since the State Prison authorities (perhaps in view of the fluidity of transfer permitted by R.S. 30:4-85, N.J.S.A.) have continued to regard the date of November 24, 1959, as the gross maximum expiration date of the petitioner's Rahway sentence.
By order of the Commissioner of Institutions and Agencies, dated September 16, 1946, and under the authority of R.S. 30:4-85, N.J.S.A., supra , the Rahway term of the petitioner was transferred to be served at the New Jersey State Prison. This court has previously held this transfer statute valid and constitutional. Ex parte Zienowicz, supra.
On September 27, 1946, petitioner received from the
former New Jersey Court of Pardons a "license to be at large" (R.S. 2:198-1, et seq., N.J.S.A. , repealed L. 1949, c. 18, p. 63, § 6) on the Middlesex County sentence, and he was thereupon "reverted" to continue service of his Rahway sentence under number 25379. The use of the term "reverted" is something of a misnomer here since prior to September 27, 1946, the petitioner was serving the two sentences concurrently, although separately. U.S. v. Patterson, Keeper, &c. , 29 F. 775 (Cir. Ct. D.N.J. , 1887). Thus he was continually serving the Rahway sentence, in contemplation of law, and did not "revert" to it. He has not been paroled since on the Rahway sentence and is presently serving that sentence and it is this imprisonment which he claims here to be illegal.
Petitioner asserts that since the judge who imposed sentence on the Middlesex County charge knew that he was then serving a term of confinement at Rahway, such sentence had the effect of merging that term in the Middlesex County sentence, because the confinement on the latter was ordered to be at the New Jersey State Prison and no specification was made that it should run concurrently to the Rahway term. This point is specious. The Middlesex County Court could not terminate the Rahway sentence, for the power to do so, or to grant parole thereon, was confided by law to the board of managers of such institution (R.S. 30:4-148, N.J.S.A., supra) and to the former Court of Pardons. R.S. 2:198-1, N.J.S.A., supra. Unless excused by death, authorized termination, or grant of parole, a prisoner must serve the maximum of his sentence. Ex parte Fitzpatrick , 9 N.J. Super. 511 (Cty. Ct. 1950).
Petitioner urges that the administrative delay in ordering transfer of the remaining part of his Rahway sentence to be served at the State Prison, i.e. , by order entered October 16, 1946, ought to result in his immediate release. This ground too is baseless. The petitioner has not been injured by that delay and, as stated, the time elapsing from July, 1945, when the ...