Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Harold Konigsberg appeals from the denial of his application for a writ of habeas corpus , the reasons for which are stated in the opinion of Judge Drewen reported in Application of Konigsberg , 41 N.J. Super. 490 (Cty. Ct. 1956).
The facts pertinent on this appeal are as follows: On May 2, 1949 Konigsberg was indicted for robbery. Pursuant to R.S. 30:4-82, now N.J.S.A. 30:4-82, on February 27, 1950 it was ordered that an inquiry be made and proofs taken relating to his mental condition. By order of March 21, 1950 he was transferred from the Hudson County Jail
to the House of Detention for the Criminal Insane at the New Jersey State Hospital at Trenton, established for the care and treatment of the insane. On May 11, 1950 Dr. Harold Magee, Chief Executive Officer of the State Hospital, by petition certified that Konigsberg was "cured and has no psychosis and is now in a condition to be discharged from said institution as a patient." Thereafter, on May 17, 1950 Konigsberg was remanded to the Hudson County Jail and on October 2, 1950 was brought to trial.
His attorney thereupon objected to the trial proceeding, requesting that the court determine whether Konigsberg was capable of standing trial, since the original certificate of Dr. Magee discharging the defendant as cured could not be found in the files of the Hudson County Clerk's Office. By direction of Judge Drewen a search for the certificate was made, but it was not found, although the order of May 17, 1950 remanding Konigsberg was in the court's file and specifically referred to Dr. Magee's certificate. Konigsberg's attorney continued to object to the trial proceeding in the absence of the certificate of release, although Konigsberg was then actually in the courtroom.
After a recess Judge Drewen announced that he personally had just spoken to Dr. Magee on the telephone and that Dr. Magee had stated that prior to May 17, 1950 he had certified to the Attorney-General that Konigsberg "was in a condition of cure and fit to be discharged from further detention at the institution," and that upon receipt of the court order of May 17, 1950 he had, on May 24, 1950, authorized Konigsberg's release. Judge Drewen stated further that he had then telephoned to Mr. Urbaniak of the Attorney-General's office, who has charge of releases from the State Hospital, who stated that he had before him the duplicate original of Dr. Magee's petition and certificate of cure which had been mailed on May 11 to the Prosecutor of Hudson County. Judge Drewen then said that upon the strength of these statements he would "assume the existence of the records in their respective offices sufficient to afford a basis for the making of papers and documents nunc pro tunc
should the original certificate and petition continue to be unavailable." He then ordered the trial to proceed. After a two-day trial Konigsberg was found guilty and sentenced to State Prison for a term of 14 to 15 years.
The respondent's brief states that on February 23, 1951 the defendant appealed to the Appellate Division, which in an unreported opinion affirmed the conviction. Subsequently, the defendant filed a notice of appeal to the New Jersey Supreme Court, but this was never perfected; instead, he applied to the Mercer County Court for a writ of habeas corpus , which on May 9, 1952 was denied.
In July 1956, almost six years after his conviction, Konigsberg applied to the Hudson County Court for a writ of habeas corpus predicating his application on the ground that the trial court should not have, on October 2, 1950, proceeded with his trial in the absence of the statutory certificate of cure. The defendant does not contest that Dr. Magee signed a certificate of cure, nor that he had in fact been released from the State Hospital and remanded for trial, nor does he contend that he was not capable of standing trial. His petition was dismissed and he appeals.
R.S. 30:4-82, in effect at the time of the defendant's trial, provided as follows:
"If any person in confinement under commitment, indictment or sentence * * * shall appear to be insane * * * the * * * judge of the court of common pleas * * * may * * * institute an inquiry and take ...