Clapp, Jayne and Hughes. The opinion of the court was delivered by Jayne, J.A.D.
Since common points for the reversal of the judgments of conviction were implicated in these appeals, they were argued in concert.
At the 1954 Term, the grand jury of the County of Hudson presented an indictment designated as No. 631 charging the defendants, Harry Wines and Anthony Palumbo, in the first count with the commission of armed robbery on April 20, 1955 in the Town of Guttenberg in violation of N.J.S. 2 A:151-41 and 2 A:141-1, and in the second count
with the commission on the same date and place of an assault upon the same person with the intent to rob, in disobedience of N.J.S. 2 A:90-3 and 2 A:141-1. At the trial held on November 4, 1955 in pursuance of the indictment, the jury resolved that both defendants were guilty of the offenses therein charged.
For their guilt of armed robbery each defendant was sentenced to imprisonment for the term of from 10 to 15 years; for the commission of assault, the defendant Wines was sentenced to serve a consecutive term of imprisonment of from 5 to 7 years, and the sentence of the defendant Palumbo for that alleged offense was suspended.
Oddly, one Part of this Division granted Wines leave to appeal in forma pauperis , and he forthwith filed his notice of appeal; a like petition presented by Palumbo to another Part was denied. The State challenges the right of the defendant Palumbo to prosecute his desired review in the absence of the requisite notice of appeal.
True, the defendant Palumbo has not filed a notice of appeal. It is recognized that his original petition for leave to appeal in forma pauperis tolled the time for filing the notice of appeal. R.R. 1:3-3(b). The denial of the prayer of the petition again started the clock. Some 16 days later, he applied for a rehearing of his petition. This untimely application did not operate to re-toll the period for appeal. R.R. 1:9-4; R.R. 2:9-2; R.R. 1:3-3(e). Thus, the time allowed for filing a notice of appeal [three months -- R.R. 1:3-1(a)] appears to have expired on or about September 25, 1956. Obviously R.R. 1:27 B does not now avail.
A further circumstance must, however, be heeded. The defendant Palumbo, after his allotted time for appeal had passed, nevertheless acquainted the Supreme Court with the denials of his petition and sought from that tribunal leave to appeal from his conviction in forma pauperis.
The Supreme Court, evidently recognizing the correspondence in the grounds of appeal seemingly available alike to both Wines and Palumbo and the probably unintended discrimination
in the allowance to one and the denial to the other of the privilege of prosecuting an appeal in forma pauperis , remanded the case to us "for consideration and determination." We have accepted the implication that this Division should consider and determine the common appellate issues in their relation to the convictions of both defendants.
To that fair and just end and after a preliminary discussion of the subject with counsel, we, sua sponte , vacated the order of the Part denying Palumbo's petition for leave to appeal and extended to him the privilege therein requested. See, In re Katz , wherein a petition for certification was initially denied but subsequently reconsidered and granted, 19 N.J. 328 (1955); 21 N.J. 337 (1956); see, power to recall mandate, Yonadi v. Homestead Country Homes, Inc. , 42 N.J. Super. 521 (App. Div. 1956). Consult, also, United States v. Ohio Power Co. , 353 U.S. ...