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In re Rodgers

Decided: April 19, 1955.

IN THE MATTER OF THE APPLICATION OF ANDERSON B. RODGERS FOR A WRIT OF HABEAS CORPUS


Gaulkin, J.c.c.

Gaulkin

This is a petition by a prisoner for a writ of habeas corpus. Pursuant to R.R. 1:12-9(d) I assigned counsel for the purpose of a preliminary review of the petition, who reported to me that it was his considered opinion that the petition "is without foundation or merit." Thereupon, as I am required to do, I made an independent examination of the petition and of the records.

The petition is verified by an affidavit which states that "after having all allegations read very carefully to me, I * * * find all the allegations of this petition to be true to the best of my knowledge and belief " (italics mine).

When a petition for habeas corpus is based on matters of law, such an affidavit probably would be accepted without any question. However, when the petition is based on matters of fact, and especially where those matters of fact are charges as serious as those contained in this petition, and the statements if true must necessarily be within the personal knowledge of the petitioner, the affidavit should state flatly that those charges are true, and not that they are made "to the best of my knowledge and belief." The court is not obliged to accept such an affidavit. R.R. 4:44-4; State v. Tune , 13 N.J. 203 (1953); Maplewood Township v. Margolis , 102 N.J. Eq. 467 (Ch. 1928), affirmed 104 N.J. Eq. 207 (E. & A. 1928); cf. R.R. 4:58-6. The allegations of this petition illustrate the importance of enforcing that rule here.

The petition recites that "the cause or pretence of my confinement and restraint according to the best of my knowledge and belief is:

"Under an illegal sentence as imposed upon me by the Essex County Court, such imposition is for the alleged crime of (Assault with Intent to Rob) one Dominick Neri * * *."

The truth is that the defendant is serving a sentence for murder, which he does not mention at all in his petition. He had been sentenced October 18, 1944 to serve a term of not less than 8 or more than 12 years for assault with intent to rob, but that term had been completely served prior to the filing of the present petition. At the time of the filing of this petition, defendant was serving a term of 15 to 20 years for murder, imposed in 1946 in Burlington County, consecutive to the 8- to 12-year term which had been imposed in Essex County. That murder sentence defendant is still serving.

Apparently the petitioner hopes that by voiding the sentence for assault with intent to rob, he will receive credit for the time he has served upon his sentence for murder. U.S. v. Morgan , 346 U.S. 502, 74 Sup. Ct. 247, 98 L. Ed. 248 (1954).

There is no record that the prisoner made any previous complaint, though he has been in custody 11 years. His excuse is that he was illiterate, very young, and ignorant of

his rights when he was arrested in Essex County in 1944, and (inferentially) that he has just become aware of his rights. However, it is to be noted at the outset that before his arrest in Essex County he had spent four years in prison for assault with intent to rape, and some time in the Essex County Penitentiary for assault and battery. He was therefore hardly unfamiliar with the operation of the criminal law. Cf. State v. Cynkowski , 10 N.J. 571 (1952).

In his petition, he claims that he is innocent. The assault with intent to rob was in an attempt to hold up a tavern. From the petition it is not clear whether he claims he did not do it, or whether he says he was too drunk to know what he was doing. In any event, he says he walked out of the tavern unaware of any attempted robbery, and that "upon my getting outside no body bothered me I walked down the street and was about two blocks away from the tavern when a police car came out of a side street and the officers stopped me and told me to get in the car which I did." The prosecutor's file, on the other hand, shows that defendant fled, and that shots were fired to bring him to a halt. I mention the contents ...


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