On appeal from the Superior Court, Law Division, 1955, whose opinion is reported in 31 N.J. Super. 382.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J. Heher, J. (concurring in affirmance). Heher, J., concurs in result.
This is an appeal from a judgment of the Superior Court dismissing an application for habeas corpus. The application for the habeas corpus stemmed from the decision of this court in State v. Monahan, 15 N.J. 34 (1954). The appeal was certified here on our motion. R.R. 1:10-1(a).
The appellant was born on April 29, 1929. He was indicted by the September term, 1943, grand jury of the Court of Oyer and Terminer of Camden County for the
murder of one Freeberger which occurred on October 1, 1943. The killing occurred during the perpetration of a robbery. R.S. 2:138-1, N.J.S. 2 A:113-1; R.S. 2:138-2, N.J.S. 2 A:113-2. At the time the appellant was 14 1/2 years of age. On January 20, 1944 he pleaded "not guilty" to the indictment and counsel was assigned by the State to defend him. On May 17, 1944 he withdrew the plea "not guilty" and pleaded " non vult " and was sentenced by the Court of Oyer and Terminer to life imprisonment. He was received at the State Prison on May 19, 1944 and was transferred to the Reformatory at Rahway on a transfer order of the Commissioner of the Department of Institutions and Agencies pursuant to R.S. 30:4-85, and on July 12, 1948 by the same authority was re-transferred back to the State Prison where he has been and is now presently confined. It is stipulated in this case he was under the age of 16 years on the date the offense was committed and that he was 25 years of age on the date of the application for the writ. The court below after a full hearing dismissed the writ.
The trial court held: (1) the case of State v. Monahan, supra, did not apply to the application; (2) that the appellant's continued confinement was not a violation of due process since the judge who sentenced him in the Court of Oyer and Terminer was the same judge who would have sat in the Juvenile and Domestic Relations Court; and (3) the statute, R.S. 30:4-143, requires, in the case of a male convicted of murder, that he be confined to the State Prison and that the ultimate release of such a prisoner is an administrative act to be performed by the appropriate authorities with due consideration for the seriousness of the charge, the age of the defendant, his behavior and his adjustment to take his place in society.
At the time of the conviction of the appellant the Camden County Court of Oyer and Terminer was vested with jurisdiction to indict and try the appellant for the crime of murder. The Court of Errors and Appeals in the case of In re Mei, 122 N.J. Eq. 125 (E. & A. 1937), held that R.S. 2:103-3.1, now N.J.S. 2 A:85-4, and R.S. 9:18-12
were unconstitutional insofar as they attempted to deprive the grand jury and the Court of Oyer and Terminer of jurisdiction to indict and try a person under the age of 16 for murder.
This was the law of this State until the decision of this court in State v. Monahan, supra. In this latter decision the prior decision of In re Mei, supra, was overruled and this court held that under the parens patriae doctrine both on psychological and sociological grounds the State and Legislature had the power to treat such a crime when committed by an infant under the age of 16 as juvenile delinquency and that jurisdiction was exclusive in the Juvenile and Domestic Relations Court. The question had come before this court on an appeal from a denial of a motion to transfer the proceedings from the Court of Oyer and Terminer to the Juvenile and Domestic Relations Court and the cause was so transferred on the remand.
The appellant contends that the decision in the Monahan case must be applied retrospectively and when so applied renders the sentence heretofore imposed upon him invalid, illegal and void for lack of jurisdiction of the subject matter and the person by the Camden County Court of Oyer and Terminer at the time the sentence was imposed. He further contends that the provisions of the Juvenile Act do not apply to him presently because the statute has no application to him as a prisoner at the age of 25 years because the statute is limited in its application to children and therein contemplates a person under the age of 21 years.
The appellant relies principally upon the holding in Stockton v. Dundee Mfg. Co., 22 N.J. Eq. 56 (Ch. 1871), where the court said:
"A change in the law, by decision, is retrospective, and makes the law at the time of the first decision as it is declared in the last decision, as to all transactions that can be reached by it."
This has been the law of this State and expresses the general prevailing view with respect to civil cases. It was re-declared in Ross v. Board of Chosen Freeholders of Hudson, 90 N.J.L. 522 (E. & ...