Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
This prisoner, who is confined in State Prison, applied for a writ of habeas corpus to attack the validity of the sentences which produced his incarceration. The trial court denied the writ summarily. We reversed and directed a hearing, pointing out that the statements in affidavit form accompanying the petition were uncontradicted and, if true, warranted relief. State v. Forsythe , 38 N.J. Super. 578 (App. Div. 1956). A hearing was held, and the writ discharged. Prisoner appeals.
The record discloses that on July 15, 1952 Forsythe and two companions were arrested and charged with entering
without breaking, larceny and atrocious assault and battery. All three engaged the same counsel to represent them and discussed the case with him. On August 18, 1952 they escaped from the county jail. The two companions were apprehended within a short time, following which they pleaded non vult to the charges mentioned and to the additional offense of criminal escape.
Forsythe was not recaptured until February 15, 1953. Twelve days later he was arraigned on three indictments charging entering without breaking, larceny, atrocious assault and battery, and escape. At this time, through the attorney previously retained, he entered pleas of non vult to them.
The pleas were made in open court in the presence of the prisoner. The stenographic record of the proceedings indicates that the court had already received and examined the pre-sentence probation report and announced that he was prepared to impose sentence. Thereupon both the assistant prosecutor and defense counsel made statements with respect thereto. Defense counsel said, among other things:
"On behalf of the defendant, John Forsythe, having previously made the statement to this court concerning the other two defendants, John H. Porta and Henry H. Stengel, I will not review the plea that I made at that particular time, but as far as Forsythe is concerned, on the atrocious assault and battery charge, I merely have this to say, namely, that Forsythe at no time left the automobile. He was the operator of the automobile but he did not enter the Fireside, has not had, nor had anything whatsoever to do with any act of assault and battery upon the victim [the watchman of the place entered] in this particular case. I well realize that the facts and statements as presented by the prosecutor are substantially true in all respects, except the assault and battery charge, and I ask the court to take that into consideration in imposing sentence upon this defendant, to give as much consideration as it possibly can on indictment number 21 dealing with the atrocious assault and battery." (Insertion ours.)
The court then pronounced the sentences, saying:
"John Forsythe, the only difference between you and the other two defendants, your companions in the case, is apparently the fact that you did not actually and physically partake in the atrocious assault and battery, but under the law, you know you are equally
guilty with them. On the other hand, the court will take that into consideration in imposing sentence upon you. I will not mete out as much of a sentence as your two companions received on that particular count."
The following consecutive sentences were given: entering without breaking and larceny, 2-3 years; atrocious assault and battery, 3-5 years; and escape, ...