Duffy, J.c.c. (temporarily assigned).
The above-named plaintiffs, by verified petition, applied for writ of habeas corpus on the grounds; first, that they are illegally detained in State Prison at Trenton, New Jersey, predicated upon their challenge to the legal propriety of their extradition to New York to answer criminal charges while they were then serving sentences in a New Jersey penal institution. They contend that the surrender of their persons to the New York authorities under such extradition proceedings constituted a pardon of their New Jersey criminal offenses because no statutory authority exists for the Governors of the respective states to enter into an agreement for the return of persons so surrendered unless the crime allegedly committed in the demanding state be murder. Here, the charged crime was robbery. Secondly, they argue that their constitutional rights of due process have been violated.
I appointed Mr. Frank P. Addas as counsel for the plaintiffs in these proceedings pursuant to their request for legal aid. I directed the issuance of the writ of habeas corpus (N.J.S. 2 A:67-17) and conducted a hearing (N.J.S. 2 A:67-28) to inquire into the meritorious grounds for their detention in State Prison.
The background history of this case follows: The Governor of the State of New York by a document dated February 19, 1954 made a demand upon the Governor of New Jersey for the extradition of the four named plaintiffs (and another individual named Dominick Bonomo who is not a party to these proceedings) to answer certain criminal charges lodged against them in New York. The Governor of New Jersey honored the above requisition on April 8, 1954 and, on the same date, issued his warrant for the deliverance of the present plaintiffs and Bonomo to the
duly authorized agents of the Richmond County, New York, District Attorney's office. On April 16, 1954 the Governor of New Jersey by executive order stayed the return of the five above named pending their arraignment in the proper court in Monmouth County, New Jersey, to plead to an indictment charging them with the crime of carrying concealed weapons (N.J.S. 2 A:151-41). On the same date criminal proceedings, by way of open indictments against the five named above, also awaited disposition in Union, Essex and Hudson Counties, all in New Jersey. I will discuss the indictments at greater length, infra.
Contemporaneously with the above-described extradition proceedings, Governor Dewey of New York and Governor Meyner of New Jersey entered into an agreement, endorsed by the former on March 20, 1954 and by the latter on March 29, 1954, wherein it was recited that the "said James Kiernan, Ronald Keith Kramer, Warren Davidson and Frank E. Rau are now confined in the Hudson County Jail awaiting trial for crime of robbery in the first degree," and further provided:
"Now, therefore I, Robert B. Meyner, as Governor of the State of New Jersey, do hereby agree with Thomas E. Dewey, as Governor of the State of New York, for the extradition of said Dominick Bonomo, James Kiernan, Ronald Keith Kramer, Warren Davidson and Frank E. Rau, to the State of New York before the conclusion of the term of sentence now being served by Dominick Bonomo in the State of New Jersey, and before the trial of James Kiernan, Ronald Keith Kramer, Warren Davidson and Frank E. Rau in the State of New Jersey, upon the express condition that the said Dominick Bonomo, James Kiernan, Ronald Keith Kramer, Warren Davidson and Frank E. Rau shall be promptly brought to trial in said State of New York, and upon the further express condition that the said Dominick Bonomo, James Kiernan, Ronald Keith Kramer, Warren Davidson and Frank E. Rau be returned promptly to the State of New Jersey, at the expense of the State of New York, as soon as the prosecution in the State of New York is terminated, and upon such return Dominick Bonomo shall be delivered into the custody of the Warden of the New Jersey State Prison for completion of his term of sentence in the State of New Jersey; and James Kiernan, Ronald Keith Kramer, Warren Davidson and Frank E. Rau shall be delivered into the custody of the Warden of the Hudson County Jail to await trial in the State of New Jersey."
The Governors' agreement further covenanted that "the aforesaid express conditions upon which the application for the extradition of the said Dominick Bonomo, James Kiernan, Ronald Keith Kramer, Warren Davidson and Frank E. Rau are granted shall be in all respects fulfilled and complied with and expressly accepted as terms and conditions of said extradition."
The four plaintiffs herein, by verified complaints dated June 10, 1954 and filed with the Mercer County Court on June 30, 1954, made application for writs of habeas corpus "for the purpose of testing the validity of the extradition proceedings" outlined above. The writs issued and a hearing was conducted before Mercer County Court Judge Bennett on July 26, 1954. Copies of the complaints and a transcript of the hearing before Judge Bennett were received in evidence as exhibits in the case before me. I note that counsel for the present plaintiffs in the Mercer County proceedings directed his main argument towards the right of the Governor of this State to consent to the extradition to the demanding state of prisoners then serving jail sentences in New Jersey unless the crime charged be murder. Judge Bennett dismissed the writ and directed that Rau, Davidson, Kiernan and Kramer be turned over to the New York authorities under Governor Meyner's extradition warrant. I will say in passing that I am aware that at common law the doctrine of res judicata did not apply in habeas corpus proceedings, In re Sabongy , 18 N.J. Super. 334, 340 (Cty. Ct. 1952), although a prior decision is not without weight on a later application. State v. Pohlabel , 40 N.J. Super. 416, 422 (App. Div. 1956).
As noted earlier, in the case at bar, plaintiffs dispute the statutory right of the Governor of New Jersey to enter into agreement with the Governor of New York for their extradition while they were then serving prison sentences in New Jersey. They insist that section 10 of the Uniform Criminal Extradition Act (N.J.S. 2 A:160-10) applies only where the crime charged in the demanding state is murder. They contend further that if resort was
had to section 27 (N.J.S. 2 A:160-27, quoted below) of the act no provision is contained therein for the return of the fugitives to the asylum state after completion of the criminal proceedings in the demanding state.
"2 A:160-27. Extradition of persons pending outcome of criminal prosecution in this state. If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the governor, in his discretion, either may surrender him or demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state."
In interpreting the above section which is common among the Uniform Criminal Extradition Acts that have been adopted by 40 of the states, 9 U.L.A. (Supp.) 93, it has been held that this section was not enacted for the benefit of the fugitive from justice but rather for the benefit of the state. State ex rel. Cutshaw v. Smith , 127 N.E. 2 d 633 (Ohio App. Ct. 1953).
It is obvious that the extradition of the present plaintiffs to New York occurred under section 33 (N.J.S. 2 A:160-33) of our Extradition Act, which, incidentally is verbatimly similar to the provisions of the New York law. (N.Y. Code of Criminal Procedure, sec. 832). The section reads as follows:
"2 A:160-33. Extradition of persons imprisoned or awaiting trial in another state; agreement to return to state from which extradited. When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated."
It must be noted that Governor Dewey initiated the extradition proceedings against the four named plaintiffs based upon the authority conferred upon him under section 832
of the New York Code of Criminal Procedure. It is a matter of comity between the states and resorted to frequently under a reciprocity arrangement. As an illustrative example, in the recent case of Commonwealth ex rel. Hauser v. Seip , 385 Pa. 545, 124 A. 2 d 110, 115 (Sup. Ct. 1956), Governor Meyner made demand upon the Governor of Pennsylvania pursuant to section 33 quoted above for the surrender of a prisoner then serving a robbery sentence ...