On appeal from Superior Court, Appellate Division.
For reversal -- Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt and Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
This is an appeal from a judgment of conviction of the defendant, Edward S. McCall, as an habitual criminal. The judgment, entered in the Union County Court in December 1952, was affirmed by the Superior Court, Appellate Division, on a divided vote. 27 N.J. Super. 157. The defendant filed an appeal as of right to this court. N.J. Const. 1947, Art. VI, Sec. V, par. 1, clause (b); R.R. 1:2-1(b).
The record discloses that the defendant was convicted in the former Union County, New Jersey, Court of Special Sessions on November 13, 1941 of the crime of forgery (R.S. 2:132-1), and was committed to the reformatory at Annandale; that on July 29, 1943 the defendant was convicted in the former Union County Court of Special Sessions on three separate allegations (to each of which he had entered the plea of "guilty") of violation of R.S. 2:115-1, i.e., breaking, entering and larceny by night (respectively the allegations charged the defendant with the commission of separate offenses on July 3, 1943, June 23, 1943, and July 13, 1943); that on April 26, 1945, the defendant was convicted in the Union County Court of Quarter Sessions on four separate indictments (to each of which he had entered the plea of " non vult ") for breaking, entering and stealing by night (each indictment charged the defendant with the commission of a separate offense on March 19, 1943, April 9, 1943, April 28, 1943, and June 10, 1943). Each of the convictions on July 29, 1943 resulted in a separate sentence to the New Jersey State Reformatory, but each sentence was made to run concurrently with the other two. Each of the convictions on April 26, 1945 resulted in a separate sentence of imprisonment at hard labor in the State Prison for a minimum term of two years and a maximum term of three
years, but each sentence was made to run concurrently with the other three.
On October 9, 1952, in the Union County Court, the defendant was again convicted of a high misdemeanor, namely breaking and entering by night with intent to steal (N.J.S. 2 A:94-1). The offense allegedly occurred on February 10, 1952.
While the defendant awaited sentence on the October 9, 1952 conviction, the State filed an accusation charging that the defendant was an habitual criminal subject to the penalties of N.J.S. 2 A:85-8, 9 and 12. A mistrial occurred, following which the State amended its accusation.
The amended accusation contained two counts. The first count alleged that the defendant had sustained prior convictions on four occasions, namely November 13, 1941 (forgery), July 29, 1943 (burglary, on the three allegations hereinabove adverted to), on April 26, 1945 (burglary, on the four indictments hereinabove adverted to) and on October 9, 1952 (the conviction for burglary hereinabove last mentioned). This count was abandoned by the State at the trial. The second count alleged that each of the convictions hereinbefore mentioned (one on November 13, 1941, three on July 29, 1943, four on April 26, 1945, and one on October 9, 1952) constituted a conviction on a separate "occasion." On December 2 and 3, 1952, the defendant was tried as an habitual criminal on the second count. During the course of the trial evidence was introduced in the defendant's behalf to prove that the defendant was born on July 30, 1925. On this evidence the trial court ruled that the purported conviction for forgery on November 13, 1941 could not stand, and ordered that allegation stricken out.
After summation and charge, the jury retired at 3:00 P.M. to consider their verdict. Subsequently (at 4:30 P.M.) they returned to the courtroom for further instructions. The jurors asked several questions. They asked whether their belief that the crimes committed were not serious enough to warrant a life sentence should influence them. The trial court instructed them that such a consideration
was not a matter open to them to decide. They asked what maximum sentence could be imposed on the defendant on his last conviction if they found him "not guilty" as an habitual criminal. The trial court instructed them that this was not an element open for their consideration. Other questions related to the construction and application of N.J.S. 2 A:85-12, supra. The trial court charged "that if this defendant pleaded guilty or non vult to separate accusations or indictments, the fact that those pleas were taken on the same day or at the same court session on that day would not prevent them from being separate occasions within the meaning of the statute."
The jury again retired to the jury room, but at 5:30 P.M. requested further instructions. They returned to the courtroom and asked the court what would happen to the defendant if the jury did not agree. The prosecutor then addressed the trial court, and the following colloquy ensued:
"Mr. Morss: Sir, will you instruct the jury there will have to be another trial in the event they do not agree?
Mr. Liotta: I don't think that is fair for the Prosecutor to make such a remark.
The Court: The remarks of counsel are stricken out. Let the jury go back and if they cannot agree, in any event, they will be discharged.
Mrs. Glacken (No. 10): Is it an improper question to ask whether or not this man will be retried for the same thing?
The Court: I don't think that has anything to do with this jury. It is not for you to say. If the jury reports they cannot agree we ...