Eastwood, Bigelow and Francis. Bigelow, J.A.D. Eastwood, S.j.a.d. (concurring).
This is an appeal from an order on habeas corpus , remanding appellant to State Prison. On October 28, 1940, defendant pleaded non vult to seven indictments for robbery and a month later sentences were pronounced, running consecutively for a total minimum of 20 years and maximum of 30 years. At no stage in the prosecution did he have the aid of counsel and this he alleges as ground for discharge from prison.
Counsel for the State argues that because the prisoner for ten years failed to demand release from prison, the reasons urged for his discharge should now be brushed aside. The earliest support for such a theory seems to be In re Tremper , 126 N.J. Eq. 276 (Ch. 1939). The vice chancellor in that case found that although the court which sentenced the
petitioner had lost jurisdiction of the cause and consequently that the conviction was void, yet the petitioner must remain in prison because he had delayed five years before asking to be released. The Court of Errors and Appeals held that the trial court had jurisdiction, that the imprisonment was lawful and so affirmed, but hinted no approval of the reasons on which Vice-Chancellor Buchanan counted. 129 N.J. Eq. 274 (1941). The vice-chancellor was followed by the Mercer County Court in In re Zee , 13 N.J. Super. 312 (1951), and again, while the order was affirmed on the merits, the subject of delay was ignored, 16 N.J. Super. 171 (App. Div. 1951). The same County Court in In re Hodge , 17 N.J. Super. 198 (1951), refused to issue a writ of habeas corpus "because of the long and unexplained delay in applying for the writ."
The foundation of the late Vice Chancellor Buchanan's conclusion that unexplained delay should lead to denial of a writ of habeas corpus , was his strong opinion that issuance of the writ was always a matter of discretion. He said that a prisoner's right to the writ is not established simply by
"showing, prima facie , a reasonable possibility that the court, upon the issuance of the writ and the subsequent inquiry and hearing thereunder, would conclude that the sentencing court did in fact lack jurisdiction. * * * The court is required to determine, in its sound judicial discretion, whether under all the circumstances which the court has before it on the application in the particular case, the writ ought to be issued as a matter of justice, -- all things considered."
Starting with that premise, he upheld the State's contention that "because of their long and unexcused delay, during which witnesses on the part of the State may have died or otherwise become unavailable or their memories dimmed, they (the petitioners) are not now entitled as a matter of justice and right, to have their claim entertained and passed upon." And he stated his conclusion "that an application of this kind, made only after more than four years and a half from the time of sentence, ought not to be entertained, at least in the absence of special circumstances."
We think that the discretion of the court on application for
habeas corpus is not so broad as In re Tremper indicates. Our Habeas Corpus Act, modeled on the famous statute of 31 Car. II, c. 2, for many years provided that if the chancellor or any justice of the Supreme Court "shall deny any writ of habeas corpus by this act required to be granted, being moved for as aforesaid, they shall severally forfeit to the prisoner or party grieved the sum of one thousand four hundred dollars to be recovered in manner aforesaid." Pat. 168, § 10. While this penal clause has been omitted since the revision of 1874, that revision as well as the Revised Statutes of 1937 flatly commanded the court to "grant such writ without delay, unless it shall appear from the petition itself, or from the documents annexed, that the party applying therefor is, by the provisions of this act (chapter), prohibited from prosecuting such writ." Rev. 1877, p. 468, and R.S. 2:82-16. Cf. N.J.S. 2 A:67-17. Even though no application is made, the court is required to issue a writ when the court "shall have evidence from any judicial proceeding had before them that a person within this state is illegally confined and restrained of his liberty." R.S. 2:82-3 and N.J.S. 2 A:67-3. The statute is "liberally construed so as to secure, as far as possible, the liberty of the citizen." R.S. 2:82-1 and N.J.S. 2 A:67-1.
"The writ of habeas corpus is a writ of right when reasonable cause is shown, but not a writ of course. 39 C.J.S., Habeas Corpus , § 6." In re Gottsmann , 141 N.J. Eq. 271 (E. & A. 1948). And such was Blackstone's opinion: "If a probable ground be shown that the party is imprisoned without just cause, the writ of habeas corpus is then a writ of right, which 'may not be denied, but ought to be granted to every man that is committed, or detained in prison or otherwise restrained, though it be by the command of the king, the privy council, or any other.'" 3 Blacks. Comm. 133. As pointed out by Judge Jacobs, "Although our decisions state that ...