Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The defendant was indicted for murder and, on a plea of non vult , was, on February 9, 1948, sentenced by the Union County Court to serve a term in State Prison of not less than ten years nor more than ten years. On the defendant's application, the Mercer County Court denied his application for a writ of habeas corpus to review the sentence upon the ground that it was illegal. The defendant thereupon filed this appeal. A prior application for the correction of the alleged illegal sentence was similarly denied on the ground that it was not reviewable under habeas corpus proceedings. It is quite clear from defendant's second application, now under review, that he misconceived the appropriate procedure to effect a correction of the sentence. Under the circumstances, we think it may be helpful if we consider the meritorious question.
R.S. 2:138-3 (now R.S. 2 A:113-3), provides that if a plea of non vult or nolo contendere be accepted in a case of indictment for murder, the sentence to be imposed shall be
either imprisonment at hard labor for life or the same as that imposed upon a conviction of murder in the second degree. R.S. 2:138-4 (now R.S. 2 A:113-4), provides that "* * * Every person convicted of murder in the second degree shall suffer imprisonment at hard labor not exceeding thirty years." R.S. 2:192-4 (now R.S. 2 A:164-17), in effect at the time of the imposition of sentence, provides, inter alia:
"All sentences to the New Jersey state prison shall, on and after May twenty-sixth, one thousand nine hundred and thirty-two, be for a maximum and minimum term, except sentences for life. The maximum term shall not be in excess of the maximum term prescribed by law for the offense for which the offender was convicted. The minimum term shall not be less than one year. Commutation time for good behavior, as provided by law shall be allowed on both the maximum and minimum terms. Nothing contained in this section shall be construed to repeal or affect the power of the courts to suspend the imposition or execution of sentence and place the offender on probation."
In New Jersey there exists a distinct separation of the power to impose sentence of detainment as a correctional measure for wrongs committed under our administration of criminal justice, wherein that power is vested in the judicial branch of the government of this State, and the authority and power to parole one so detained after consideration of credits provided for in the statutes, with such power being delegated to an executive board presently known as the State Parole Board. In the case of Ex parte Fitzpatrick , 9 N.J. Super. 511 (Cty. Ct. 1950), at pp. 519, 520; (affirmed 14 N.J. Super. 213, App. Div. 1951), the separation of power is recognized, to wit:
"Under the 1844 Constitution, in effect at the time of imposition of petitioner's sentences, and under the present Constitution, distribution of the powers of our State Government has placed the functions of pardon and parole in the executive branch (Const. 1844, Art. V, par. 10; Const. 1947, Art. V, sec. 2, pars. 1, 2; R.S. 2:198-1 et seq.; R.S. 30:4-106.1 et seq.; P.L. 1948, c. 84, etc.).
Traditionally, the granting of outright remission of guilt and the effects thereof, i.e. , pardon, is the voluntary act of the sovereign,
and, thus, an executive function. The concept of parole is more modern and the distinctions between it and pardon are well defined. Pardon is a remission of guilt and a declaration of record by the authorized authority that a particular individual is to be relieved of the legal consequence of a particular crime. Territory v. Richardson , 9 Okl. 579, 60 Pac. 244, 49 L.R.A. 440 (Sup. Ct. 1900). Parole, on the other hand, is born of a broad statutory scheme, which, in the discretion of the paroling authority, permits the conditional release of an offender from a penal or correctional institution after he has served a portion of his sentence, under the continued supervision of the State and under conditions that permit his reincarceration in the event of misbehavior. Properly conceived, parole contains none of the elements of executive clemency, as in the case of pardon. The basic purpose of parole is, or should be, to bridge the gap between the closely ordered life within the prison walls and the freedom of normal community living. The concept of parole recognized in our present Constitution is effectuated by statute. Previously, the power to parole, inter alia , was lodged in the old Court of Pardons (R.S. 2:10-1 et seq.; R.S. 2:198-1 et seq.), and also, in the case of State Prison inmates, in the board of managers of such institution (R.S. 30:4-106.1 et seq.). Presently, the function of parole, in the case of State Prison inmates, is in the State Parole Board (R.S. 30:4-123.1 et seq.). Such former custodians of the power of granting parole had exercised it, and the State Parole Board presently functions, within the framework of the executive branch of the government."
Imposing minimum and maximum terms of sentence identically alike operates as a restriction against the exercise of powers of parole delegated exclusively to the State Parole Board. It withdraws from that Board the consideration and the discretionary authority to determine that the prisoner has rehabilitated himself and is worthy of return to normal association with society and in the event of misbehavior to reincarcerate him. It is tantamount to a direction that at the expiration of the minimum sentence the prisoner must be released regardless of his state of rehabilitation, a direction which is not only akin to an encroachment upon the authority of the State Parole Board to determine such questions, but also contrary to the modern ...