Freund, Stanton and Francis. Stanton, J.s.c. (temporarily assigned). Francis, J.c.c. (temporarily assigned) (dissenting).
This is an appeal from the discharge of a writ of habeas corpus by the Law Division on the complaint of Anthony Adamo then and now confined in the State Prison.
Following his conviction on two indictments charging assault, the plaintiff appeared before the County Court on February 8, 1950 and this pronouncement was made by the court:
"It is the judgment of this Court that this defendant be put on probation for a period of five years. He is to report once a week to the Probation Officer of this County, the time and place to be fixed by the Probation Office. He is to obey all the rules of the Probation Office which generally speaking means that he is to observe the law of this State, of the United States, and of any State where he may be permitted to go. He is not to leave the State of New Jersey without the permission of either the Probation Officer or the Judge of the Court. In addition to this he will be fined $500.00. This fine may be paid in installments."
Following some colloquy between the court and the plaintiff's counsel with respect to the installment payments, the court said further:
"All right. The fine is to be paid at the rate of $10.00 per month. Now, about the reporting once a week, this will, of course, be until the further order of the Court. Should the defendant's activities convince the Court that he intends to live within the bounds set by the laws of the State of New Jersey and of the United States of America this reporting may be alleviated, or the periods made longer. I am making it once a week to start with because I want the defendant to become acquainted with the Probation Department and the work they are doing and to realize there is a serious side to all activities and that no one is permitted in Bergen County with impunity to break the law. If subsequent events prove
that his counsel is correct, that he hasn't broken the law no great harm will have been done. Perhaps he will have learned something to his advantage. If subsequent events show that the Court is right, that he has broken the law, then the probation will go on and I hope it has the desired effect."
In connection with this there appears this entry upon the docket:
"Sentence -- February 8, 1950. Report to Probation office once a week for five years, Obey all of the rules of the Probation office as established in this court. Fine $500. Costs $15.00, payable $10. a month thru the Bergen County Probation Office."
On May 16, 1952, the plaintiff was charged with the violation of his probation and there were hearings thereon. The following entries on the docket set forth the determination of the charges and the judgment of the court:
"August 13, 1952. Defendant found guilty of violation of probation. Probation revoked. Defendant remanded to the Bergen County Jail to await sentence."
"August 20, 1952. Sentence. Not less than two nor more than three years in State Prison on each indictment. 7 days spent in the Bergen County Jail to be deducted from both the minimum and maximum. These sentences to run concurrently."
The offenses committed by the plaintiff were misdemeanors and at the time of his conviction a misdemeanor was punishable by a fine not exceeding $1,000 or by imprisonment for a term not exceeding three years, or both. R.S. 2:103-1 and 6.
The question presented here is whether the placing of the plaintiff on probation and the imposition of a fine upon him, where there was no express suspension of the imposition or execution of a prison sentence, exhausted the power of the court to impose a prison sentence upon him because of his violation of the conditions of his probation.
At the times with which we are concerned the following statutory provisions were in force:
"When it shall appear that the best interests of the public as well as of the defendant will be subserved thereby, the courts of this
state * * * shall have power * * * to suspend the imposition or execution of sentence, and also to place the defendant on probation under the supervision of the chief probation officer of the county, for a period of not less than 1 year nor more than 5 years. * * *" R.S. 2:199-1 (now N.J.S. 2 A:168-1).
"The court shall determine and may, at any time, modify the conditions of probation, and may, among others, include any of the following: * * * shall pay a fine or the costs of the prosecution, or both, in one or several sums; * * *." R.S. 2:199-2 (now N.J.S. 2 A:168-2).
"* * * At any time during the probation period the court may issue a warrant and cause the probationer to be arrested for violating any of the conditions of his probation, or any probation officer * * * upon the request of the chief probation officer, may arrest the probationer without a warrant; * * *. Such probation officer shall forthwith report such arrest or detention to the court and submit to the court a report showing the manner in which the probationer has violated his probation. Thereupon the court, after summary hearing, may continue or it may revoke the probation and the suspension of sentence , and may cause the sentence imposed to be executed or impose any sentence which might originally have been imposed * * *." R.S. 2:199-4 (now N.J.S. 2 A:168-4).
The plaintiff contends that the imposition of a fine was the sentence in this case, that payment of it executed the sentence, and thereafter the court lacked the power to impose a prison sentence upon its finding that he had violated the conditions of probation.
Upon the argument the State asserted that the fine imposed here was a part of the original sentence and not merely a condition of probation. It argues that in order to put an offender on probation "all or some part of the penalty must be suspended either expressly or by necessary implication so that it may be imposed later as a penalty for breach of probation"; and also that the withholding of a sentence or a part thereof is inherent in placing a man on probation. Citing State v. Pascal , 133 N.J.L. 528 (Sup. Ct. 1946); Ex parte Samber , 13 N.J. Super. 410 (Cty. Ct. 1951).
It was conceded on the argument that the fine imposed upon Adamo was fully paid prior to the proceeding in which he was charged with the violation ...