For reversal -- Chief Justice Vanderbilt, and Justices Burling, Jacobs and Brennan. For affirmance -- Justices Heher, Oliphant and Wachenfeld. The opinion of the court was delivered by Jacobs, J.
The Appellate Division, by a divided vote, reversed the Law Division's order discharging the writ of habeas corpus which the plaintiff Anthony Adamo had obtained. The appeal to this court was duly taken under Rule 1:2-1(b) -- (now R.R. 1:2-1(b)).
On January 23 and 24, 1950 Anthony Adamo was tried on two indictments for assault. The jury found him guilty as charged in both indictments and on February 8, 1950 the State moved for sentence. At that time the trial court made the following pronouncement:
"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."
On May 16, 1952 Adamo was charged with violation of his probation. Prior to that date the $500 fine had been paid.
Hearings on the charge of violation of probation were held and on August 13, 1952 there was a finding of guilty, the probation was revoked and Adamo was remanded to the Bergen County jail to await sentence. On August 20, 1952 he was sentenced to concurrent terms of not less than two nor more than three years in State Prison.
Thereafter Adamo obtained a writ of habeas corpus, contending that the fine was the original sentence imposed upon him, that payment executed the sentence, and that the court lacked power to impose the later prison sentence. The writ was discharged in the Law Division. On his appeal to the Appellate Division a majority of the court held that since the judgment of probation was not preceded by an express declaration that imposition of sentence was being suspended, it was void, thus leaving the fine as the valid and fully executed sentence. Judge Francis, dissenting, found that the judgment of probation for five years necessarily meant that the imposition of sentence was being suspended and there was no need for any further formal expression to that effect; he considered that the fine was simply one of the several conditions of probation and that its payment in nowise altered or terminated Adamo's clear obligation to comply with all other terms of the probation. We are in full agreement with the position taken by Judge Francis.
Probation is well recognized as an important device in our criminal jurisprudence. It is designed to aid both society and the offender by affording opportunity for correction and reform under suitable supervision. The main hope is that during the period of probation the violator will establish himself as a law-abiding and useful member of the public and thus avoid the need for actual confinement and its adverse consequences. Although the matter is comprehensively dealt with in our present Probation Act (R.S. 2:199-1 et seq. -- now N.J.S. 2 A:168-1 et seq.) there are common law and statutory antecedents in our State which are worthy of mention. See Murphy and McLoughlin, Probation and its Present Status with Special Reference to New Jersey, 5 John Marshall L.J. 69 (1935); Webster, The Evolution of Probation
in American Law, 1 Buffalo L. Rev. 249 (1952); Grinnell, The Common Law History of Probation, 32 J. Crim. L. & Criminology 15 (1941).
Notwithstanding the doubts which may be expressed as to its basis in English common law, there is little question that the practice of suspending sentence during good behavior long antedated statutory authority in our State and elsewhere. See Ex Parte United States, 242 U.S. 27, 47, 37 S. Ct. 72, 61 L. Ed. 129, 142 (1916); Murphy, supra, at p. 88; Grinnell, supra, at p. 21; Note, Suspension of Sentence, 30 Harv. L. Rev. 369 (1917). Thus, there are records of the suspension of sentence at least as early as 1846 in Passaic County, 1862 in Union County, 1868 in Hudson County and 1874 in Essex County. See Murphy, supra, at p. 90. By 1881 the practice was sufficiently established and widespread to call forth the comment by Justice Dixon that the suspension of sentence "in criminal cases has long been in vogue in this as well as other states." State v. Addy, 43 N.J.L. 113, 114 (Sup. Ct. 1881). See State v. Osborne, 79 N.J. Eq. 430, 442 (Ch. 1911); In re Baer, 140 N.J. Eq. 571, 573 (E. & A. 1947). In the Addy case the defendant was convicted upon an indictment for maintaining a nuisance by obstructing a culvert over a water-course so that a highway was overflowed. The court ordered that sentence be suspended on payment of the costs of prosecution, so long as the defendant shall keep the culvert unobstructed and abate the nuisance. Thereupon the defendant paid the costs and abated the nuisance. However, he did not keep the culvert clear and was later sentenced to serve 30 days in the county jail. The court, while recognizing the practice of ...