the conviction on the second count of the indictment, and that, since the State did not cross-appeal, the only matter before the Supreme Court was the correctness vel non of the Appellate Division's ruling on the second count. He further says that the Supreme Court's arrogation to itself of the right to pass upon the question of the validity of the first count was violative of his right to a fair trial, particularly since he received no notice of the intention of the Supreme Court to pass upon the matter of the first count, and was not heard in opposition thereto.
There would seem to be no question of the fact that the only matter formally brought to the attention of the New Jersey Supreme Court was the affirmance of the Essex County Court with relation to the second count. This court is asked, in effect, to declare that the action of the New Jersey Supreme Court in considering the dismissal of the first count of the indictment by the Appellate Court, and the Supreme Court's reinstatement of that count and the judgment thereon in the Essex County Court, offended 'some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Commonwealth of Massachusetts, 1934, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L. Ed. 674.
Certain rules of the New Jersey Supreme Court require examination in weighing the force of the argument profferred by the applicant on this point. The New Jersey State Constitution gives to the Supreme Court of that State the power to make rules 'subject to law' governing practice and procedure in all courts of the State. N.J.Const. Art. 6, § 2, Cl. 3. Under this authorization, the procedure governing appeals has been established. Defendants in criminal cases may petition for certification to the Appellate Division, not as a matter of right, but of sound judicial discretion. R.R. 1:10-2. A significant rule concerning causes on review reads as follows: 'The court may exercise such original jurisdiction as may be necessary to the complete determination of any cause on review.' R.R. 1:5-4(a) (Supp.). A further rule which may be pertinent gives the plaintiff in any criminal cause the same right to an appeal to the Supreme Court from any judgment of the Appellate Division as is accorded to a defendant. R.R. 1:2-4.
It may be well to note, in addition to the foregoing, that among the reasons to be considered in allowing certification is where the Appellate Division has decided an important question of law which had not been, but should be settled by the Supreme Court. R.R. 1:10-2(d). The instant case would seem to have included such a situation, though it was not made a ground for appeal by the State, as it might have been.
With these circumstances premised, inquiry suggests itself as to the effect of the application of these rules in connection with established principles of law in the cause instantly pressing for decision.
Ordinarily, questions of administration are left to the State, Snyder v. Commonwealth of Massachusetts, supra, 291 U.S. at page 105, 54 S. Ct. at page 332; Storti v. Massachusetts, 1901, 183 U.S. 138, 22 S. Ct. 72, 46 L. Ed. 120; Kohl v. Lehlback, 1895, 160 U.S. 293, 16 S. Ct. 304, 40 L. Ed. 432, which may enforce its own notion of fairness in the administration of criminal law unless it is offensive to basic concepts of justice and the 'conscience of our people.' Judgments rendered unauthorizedly deprive defendants of the fundamental rights guaranteed them by the 14th Amendment of the United States Constitution.
So the issue presented here is whether the procedure adopted and used under color of the Rules of the New Jersey Supreme Court in this case violates some principle inherent in the constitutional requirement of due process of law. It is axiomatic that a defendant must be afforded notice and adequate opportunity to make a defense. Powell v. State of Alabama, 1932, 287 U.S. 45, 68, 53 S. Ct. 55, 77 L. Ed. 158; Cf. Coe v. Armour, Fertilizer Works, 1915, 237 U.S. 413, 35 S. Ct. 625, 59 L. Ed. 1027. This is important in view of the allegation by petitioner that he received no notice of the intention of the New Jersey Supreme Court to review the finding of the Appellate Division of the Superior Court anent the deficiency of the first count of the indictment.
Proceedings in an appellate tribunal are considered to be a continuation of the original litigation rather than the institution of a new action, and they may be taken upon such notice, actual or constructive, as the state creating the tribunal may provide. Everett v. Wing, 1931, 103 Vt. 488, 156 A. 393; certiorari denied, 1931, 284 U.S. 690, 52 S. Ct. 266, 76 L. Ed. 582. The extent to which this often misunderstood principle may go is exemplified in the case of Trono v. United States, 1905, 199 U.S. 521, 26 S. Ct. 121, 50 L. Ed. 292, in which the United States Supreme Court upheld the action of the Supreme Court of the Philippine Islands. In that case a defendant charged with murder and convicted of assault and battery, appealed that conviction to the Supreme Court of the Islands. He was found guilty of homicide by that court after it reversed the conviction of the lesser offense; and in the case of Flemister v. United States, 1907, 207 U.S. 372, 28 S. Ct. 129, 52 L. Ed. 252, in which on appeal from a conviction in the court of the first instance the sentence of the lower court was increased. The rationale in both cases was that such procedures in their usual course comprehended review of the whole case, and that this practice does not deprive the defendant of his right to due process of law. Of course, such inclusive review would not warrant setting aside a judgment of acquittal which would result in the abomination of double jeopardy (with drastic limitation noted by Justice Cardozo in Palko v. Connecticut, 1937, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288).
In the instant case there would seem to be no denial of due process inasmuch as the Supreme Court of New Jersey under its published rules may treat all matters in a case under review, either because of specific certification to the court below or by treating them as certified on its own motion, particularly where a question of law calling for determination is present.
It is true that the New Jersey Supreme Court has imposed rigid requirements on the defendant to preclude him from raising questions not raised in his petition for certification and relaxed requirements unfavorably to the defendant by means of implicit certification by itself. That may seem unsportsmanlike, but legal proceedings are not a game and unless the unsportsmanlike acts constitute a shock to justice and fair play to the point of amounting to denial of that illimitable, by definition, 'due process of law', which is a constitutional safeguard, no relief may be demanded.
The petitioner herein was afforded such notice and opportunity to defend himself in the New Jersey courts as is consonant with due process of law, and it is the conclusion of this court that he is not illegally deprived of his liberty.
The remarks of Judge Hastie in his concurring opinion in the case of United States ex rel. Auld v. Warden of New Jersey State Pen., 3 Cir., 1951, 187 F.2d 615, 621, effectively cover the question of requiring any further action before considering and dismissing a petition on its merits, resulting in circuitous rerouting of litigation, and seem peculiarly apt for the present case.
The petition for a writ of habeas corpus is dismissed. Let an order in conformity herewith be submitted.
© 1992-2004 VersusLaw Inc.