Decided: November 10, 1952.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES I. HARDMAN, DEFENDANT-APPELLANT
On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is as follows.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Jacobs and Brennan. For reversal -- None.
[10 NJ Page 469]
"On October 16, 1941, the defendant, James I. Hardman, was tried before judge and jury in the Essex County Court of Quarter Sessions and convicted of the crime of robbery. On December 3, 1941, he was sentenced to State Prison for a minimum term of 14 years and a maximum term of 15 years.
"In 1943 the trial judge, pursuant to the defendant's request, assigned counsel to represent him on his application for a writ of habeas corpus. The application was made on the ground that his sentence was illegal because he was not sentenced within 45 days after his conviction, as directed by the then statute applicable; namely, R.S. 2:192-1, as amended L. 1938, c. 273, § 2. Supreme Court Justice Porter decided that the 45-day provision of this statute was directory and not mandatory and that the sentence was legal. In re Hardman, 131 N.J.L. 257 (Sup. Ct. 1944).
"In 1945 the defendant made an application for a writ of habeas corpus to Supreme Court Justice Parker, and it was denied. In re Hardman, 24 N.J. Misc. 260 (Sup. Ct. 1945).
"On June 25, 1951 the present proceeding, a motion by the defendant for a new trial, was brought before a judge of the Essex County Court. At the hearing on the motion the defendant was represented by counsel, testified in his own behalf, and indicated that he had no other witnesses available. The motion for a new trial was denied. The defendant on this appeal alleges 11 grounds of error.
"Grounds 1, 4, 5, 6, 7, and 8 were treated at length in the opinion filed in this proceeding by the trial judge, and all were determined adversely to the defendant. We concur in these determinations.
"Ground 2 is that 'The trial court erred in not presenting appellant with bill of particulars, copy of indictment, etc.' There is nothing in the record to show any proper demand for either a bill of particulars or a copy of the indictment. In addition, there is no showing that the defendant was in any way prejudiced by lack of either or both.
[10 NJ Page 470]
"Ground 3 is that 'The trial court erred in trying appellant for armed robbery, when indictment stated that robbery was committed by felonious means, no weapon was mentioned in the indictment.' The record shows that the indictment, trial, conviction and sentence were all for robbery.
"Ground 9 is that 'The trial court erred in not sentencing appellant by due process of law. Sentencing appellant after the statutory period had expired where appellant had in no way interfered with imposition of sentence, was assuming powers not vested in Court by statute of New Jersey.' This ground was not raised in the proceeding below; in fact, it could not be raised because of the nature of the proceeding. On appeal, our review extends only to questions raised in the proceeding below. Further, In re Hardman, 131 N.J.L. 257 (Sup. Ct. 1944) disposed of this ground.
"Ground 10 is that 'The trial court erred in having a State witness testify under a fictitious name, Miss Marion Parker's right name is Marion Wilson.' There is no support in the record for the alleged fact, and even if true no possible prejudice to this defendant is suggested.
"Ground 11 is that 'Both State witnesses gave conflicting testimony.' Neither the ground as stated nor the argument advanced under it suggests any error which would support reversal or the grant of a new trial, even if raised within time.
"The order is affirmed."
The judgment is affirmed for the reasons expressed in the opinion of the Superior Court, Appellate Division.