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State v. McCall

Decided: August 13, 1953.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDWARD S. MCCALL, DEFENDANT-APPELLANT



Goldmann, Smalley and Schettino. The opinion of the court was delivered by Smalley, J.s.c. (temporarily assigned). Schettino, J.s.c. (temporarily assigned) (dissenting).

Smalley

This is an appeal from a conviction under an accusation charging the defendant-appellant, Edward S. McCall, hereinafter referred to as "defendant," as an habitual criminal in accordance with the provisions of N.J.S. 2 A:85-12.

On October 9, 1952 the defendant was convicted for a violation of N.J.S. 2 A:94-1 (breaking and entering) arising out of charges contained in Indictment 257, Union County grand inquest, May stated session, 1951.

On October 16, 1952, the Prosecutor of the Pleas of Union County filed accusation 1-H-A in two counts charging the defendant with being an habitual criminal, in that previous to the conviction of October 9, 1952 the defendant had been convicted on "three separate occasions" of crimes which are high misdemeanors under the laws of this State. The pertinent part of the accusation (1-H-A) is as follows:

"Occasion No. 1.

On the 13th day of November, 1941, in the Union County Court of Common Pleas and Quarter Sessions, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Forgery upon the following allegation:

Allegation No. 103, May Term, 1941, for a violation of R.S. 2:132-1 (Forgery);

Occasion No. 2.

On the 29th day of July, 1943, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following allegations:

Allegation No. 36, May Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Allegation No. 37, May Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Allegation No. 39, May Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Occasion No. 3.

On the 26th day of April, 1945, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following indictments:

Indictment No. 45, October Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Indictment No. 46, October Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Indictment No. 47, October Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Indictment No. 49, October Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night).

Wherefore, said defendant is subject to the penalties of N.J.S. 2 A:85-8, 9 and 12, against the peace of this State, the government and dignity of the same.

Accusation No. 1-H-A.

Second Count.

Edward Cohn, Esq., Prosecutor of the Pleas of the County of Union further alleges that:

1. On October 9, 1952, the defendant Edward Samuel McCall, also known as Edward S. McCall, also known as Edward McCall, also known as Eddie McCall, was convicted in the County Court of Union County of a high misdemeanor, to wit: Breaking and Entering (N.J.S. 2 A:94-1), and is awaiting sentence therefor.

2. Said defendant is an habitual criminal in that, previous to the above conviction, the above described defendant had been convicted on more than three separate occasions, to wit:

Eight separate occasions, all being crimes which are high misdemeanors under the laws of this State, upon which he was sentenced, to wit:

Occasion No. 1.

On the 13th day of November, 1941, in the Union County Court of Common Pleas and Quarter Sessions, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Forgery upon the following allegation:

Allegation No. 103, May Term, 1941, for a violation of R.S.

2:132-1 (Forgery);

Occasion No. 2.

On the 29th day of July, 1943, in the Union County Court of Common Pleas and Quarter Sessions, sitting as the Union County

Court of Special Sessions, the said defendant was convicted of the crime of Burglary upon the following allegation:

Allegation No. 36, May Term, 1943, for a violation of R.S.

2:115-1 (Burglary: breaking and entering by night);

Occasion No. 3.

On the 29th day of July, 1943, in the Union County Court of Common Pleas and Quarter Session, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Burglary upon the following allegation:

Allegation No. 37, May Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Occasion No. 4.

On the 29th day of July, 1943, in the Union County Court of Common Pleas and Quarter Sessions, sitting as the Union County Court of Special Sessions, the said defendant was convicted of the crime of Burglary upon the following allegation:

Allegation No. 39, May Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Occasion No. 5.

On the 26th day of April, 1945, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of Burglary upon the following indictment:

Indictment No. 45, October Term, 1943, for a violation of R.S.

2:115-1 (Burglary; breaking and entering by night);

Accusation No. 1-H-A.

Occasion No. 6.

On the 26th day of April, 1945, in the Union County Court of Common Pleas and Quarter Sessions, the said defendant was convicted of the crime of ...


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