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In re Application of Silvio De Vita for Writ of Habeas Corpus

Decided: July 14, 1953.

IN THE MATTER OF THE APPLICATION OF SILVIO DE VITA FOR WRIT OF HABEAS CORPUS


Naughright, J.c.c.

Naughright

The petitioner, Silvio De Vita, was convicted of the crime of murder in the first degree in the Essex County Court on March 8, 1952. On March 12 of the same year he was sentenced to suffer the punishment of death.

Petitioner subsequently appealed the judgment of conviction directly to the Supreme Court of New Jersey. On December 15, 1952 that court affirmed the judgment of conviction. State v. Grillo , 11 N.J. 173 (1952).

Petitioner next made application for executive clemency to the Governor for commutation of the death sentence to life imprisonment pursuant to N.J.S. 2 A:167-1 et seq. The application was denied.

Thereafter the petitioner, seeking review of the decision of the Supreme Court of New Jersey, sought a writ of certiorari from the Supreme Court of the United States which was denied on June 8 of this year. De Vita v. State of New Jersey , 345 U.S. 976, 73 S. Ct. 1123.

Petitioner next came to this court and on the representation that he is illegally confined in the State Prison, this court in its discretion, N.J.S. 2 A:67-14 (c), issued a writ of habeas corpus on the 1st day of July, 1953, returnable July 8, 1953, on which date, return being duly made, a hearing was had.

The petitioner asserts that the trial court lacked jurisdiction to convict and sentence him. Such claimed lack of jurisdiction is the only basis on which he can seek the intervention of this court on habeas corpus. In re Zee , 13 N.J. Super. 312 (Cty. Ct. 1951), affirmed 16 N.J. Super. 171 (App. Div. 1951); In re Caruso , 135 N.J.L. 522 (Sup. Ct. 1947). The contentions of the petitioner which appear in paragraph 9 of his complaint are as follows:

"(a) he was denied due process of law and deprived of his substantial right to a fair and impartial trial;

(b) the final judgment or verdict is void, the jury failing to render separate verdicts according to the charge of the court;

(c) the verdict is contrary to the charge and the law;

(d) the trial court was without jurisdiction to impose the sentence of death upon the verdict as returned by the jury and the court erred in imposing sentence thereon for failure of jurisdiction;

(e) the imposition of sentence is in excess of that permitted by law, contrary thereto, and the court exceeded its power in imposing said sentence, and is void and without warrant of law;

(f) the warrant, commitment and detainer are void for lack of power or jurisdiction in the court to ...


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