Clapp, Jayne and Hughes. The opinion of the court was delivered by Hughes, J.A.D.
A writ of habeas corpus was issued by the Somerset County Court on May 13, 1957 and after full hearing thereon, it was discharged and the prisoner remanded, which judgment comes before us on this appeal. We granted leave to appeal in forma pauperis and the appellant, though confined in the New Jersey State Prison, directs his claims to our attention by briefs which are lacking neither in fullness of content nor in adequacy of legal presentation. We note initially, from the transcript of evidence taken at the habeas corpus hearing (at which the prisoner was assisted by counsel assigned to him as an indigent person) and the carefully reasoned opinion of Judge Halpern of that court, the full performance of that obligation to which our courts have been exhorted with increasing emphasis in recent times, the exercise of zeal in the procedural protection of legal and constitutional rights, particularly those involving human freedom. State v. Piracci , 14 N.J. Super. 319 (App. Div. 1951); State v. Ballard , 15 N.J. Super. 417 (App. Div. 1951), affirmed 9 N.J. 402 (1952); State v. Cynkowski , 10 N.J. 571 (1952); State v. Lenkowski , 24 N.J. Super. 444 (App. Div. 1953).
The appellant previously has called to the attention of several courts his views as to the validity of the concurrent life sentences being served by him, which had been imposed in the former Somerset County Court of Special Sessions in 1947. In 1953 he petitioned the Law Division, Superior Court, Somerset County, for a writ of habeas corpus , on broad allegations that he had suffered a denial of constitutional right in that he had been deprived of the assistance
of counsel in his defense. This application was denied as insufficient to justify issuance of the writ and hearing thereon, despite a contemporary climate of caution invoked by decisions of our appellate courts discouraging the denial of the writ without hearing, abandoning the rule of In re Tremper , 126 N.J. Eq. 276 (Ch. 1939) (which withheld the writ under circumstances of long and unexplained delay in seeking it) (State v. Piracci, supra; In re Hodge , 17 N.J. Super. 198 (Cty. Ct. 1951), affirmed 24 N.J. Super. 564 (App. Div. 1953); State v. Walters , 19 N.J. Super. 597 (App. Div. 1952); State v. Cynkowski, supra; State v. Lenkowski, supra), and placing particular emphasis upon the implications of the constitutional right to the assistance of counsel (Zasada v. State , 19 N.J. Super. 589 (App. Div. 1952)). On appeal to this court, however, such denial of the writ was approved (State v. Worbetz , February 25, 1954, Docket No. A-198-53) and our Supreme Court affirmed on the basis of that decision (State v. Worbetz , 17 N.J. 569 (1955)). The United States Supreme Court denied certiorari. Worbetz v. State of New Jersey , 349 U.S. 941, 75 S. Ct. 787, 99 L. Ed. 1268 (1955).
There followed a petition for writ of habeas corpus to the United States District Court which denied the writ on June 30, 1955, and application for certificate of probable cause for appeal from the denial of such application was denied by order of the Third Circuit Court of Appeals by Judge McLaughlin on July 26, 1955.
While the principle of res adjudicata is not strictly applicable to proceedings involving the Great Writ, since a prisoner is not limited to but one opportunity to regain his freedom (Price v. Johnston , 334 U.S. 266, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948)), it is settled that the previous litigation is subject to scrutiny on the new application for relief and that the court may consider relevant earlier judicial findings on issues common to both (Salinger v. Loisel , 265 U.S. 224, 44 S. Ct. 519, 68 L. Ed. 989 (1924); Wong Doo v. United States , 265 U.S. 239, 44 S. Ct. 524, 68 L. Ed. 999 (1924); United States ex rel. Bergdoll v.
The abuse of the writ by repeated applications, noted with concern by Judge Learned Hand in United States ex rel. McCann v. Thompson , 144 F.2d 604, 156 A.L.R. 240 (2 Cir. 1944), certiorari denied 323 U.S. 790, 65 S. Ct. 313, 89 L. Ed. 630 (1944), was curtailed in the federal jurisdiction by a statute which Congress was constrained to enact for that purpose in 1948 (62 Stat. 965 (1948), 28 U.S.C. 2244 (1952)). While we have here no statutory counterpart to achieve finality in this type of litigation, although similar abuses of the writ have become apparent (State v. Bey , 29 N.J. Super. 331 (App. Div. 1954)), our courts have not hesitated to "ascribe influential, but not necessarily controlling, weight to the findings in the prior proceeding" (State v. Fontano , 26 N.J. Super. 166 (App. Div. 1953), affirmed sub. nom. State v. Fontana , 14 N.J. 173 (1954); State v. Janiec , 15 N.J. Super. 445 (App. Div. 1951), certiorari denied 342 U.S. 894, 72 S. Ct. 203, 96 L. Ed. 670 (1951); State v. Pohlabel , 40 N.J. Super. 416 (App. Div. 1956)), in an exercise of their undoubted power to protect this privileged writ of freedom from pollution by the filing of successive and repetitious applications therefor by a pertinacious relator (In re Sabongy , 18 N.J. Super. 334 (Cty. Ct. 1952); State v. Jefferson , 40 N.J. Super. 466 (App. Div. 1956); Kline v. State , 41 N.J. Super. 391 (App. Div. 1956)).
Our panoramic scrutiny of such prior proceedings, not only permitted but encouraged by the foregoing authorities, reveals to us the common thread of appellant's insistence that fundamental rights of due process, to which he was entitled under the Fourteenth Amendment to the United States Constitution , were invaded in the events leading to his conviction, particularly because of the deprivation of counsel. This contention, however, in its present frame, may not be considered in the comparative factual vacuum of a showing of the mere absence of counsel, of the failure
of the court to offer counsel, nor even, arguendo , of the truth of his repeated protestations that he was ignorant of his right to be represented by counsel. Otherwise, and without more, we would now be justified in dismissing his appeal, for that skeletal question has been settled in the courts (State v. Worbetz , 17 N.J. 569, and other litigation references, supra). But the asserted interrelation of such lack of counsel at the time of his pleas and sentences, with the peculiar characteristics of our Habitual Criminal Act (R.S. 2:103-10, amended L. 1940, c. 219, § 3, substantially reenacted in N.J.S. 2 A:85-12; vide, In re Caruso , 10 N.J. 184 (1952)), in the setting of entry of pleas exposing the accused to life imprisonment, invokes a broader inquiry, albeit one not uninfluenced by relevant prior findings. This is so because, although neither the statutory nor decisional law of our State imposed any obligation upon the court in 1947 to advise a defendant affirmatively of his right to counsel (State v. Raney , 63 N.J.L. 363 (Sup. Ct. 1899); State v. Murphy , 87 N.J.L. 515 (E. & A. 1915); State v. Cynkowski, supra; State v. Worbetz , 17 N.J. 569, supra), the appellant in the proceeding sub judice seeks to bring himself within the class of cases projecting such deprivation of constitutional right as to destroy the very jurisdiction of the court to act (Johnson v. Zerbst, Warden, etc. , 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); In re Carter , 14 N.J. Super. 591 (Cty. Ct. 1951); Zasada v. State, supra).
The Sixth Amendment to the Federal Constitution assures the accused, in all criminal prosecutions, of the right to have the assistance of counsel in his defense. Although such amendment applies only to trials in federal courts and has, in itself, no application to the states, and while the due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment , it is undoubted that a denial by a state of rights or privileges embodied in that and others of the first eight amendments may, in certain circumstances or in connection with other elements, operate, in a given case, to [47 NJSuper Page 399] deprive a litigant of due process of law in violation of the Fourteenth Amendment. While due process of law is secured against state invasion by the Fourteenth Amendment , it has been commented that its language formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application has been viewed less as a matter of rule than as a matter of principle. An asserted denial of due process is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may in other circumstances, and in the light of other considerations, fall short of such denial. Powell v. State of Alabama , 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Betts v. Brady , 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942); Foster v. People of State of Illinois , 332 U.S. 134, 67 S. Ct. 1716, 91 L. Ed. 1955 (1947); Bute v. People of State of Illinois , 333 U.S. 640, 68 S. Ct. 763, 92 L. Ed. 986 (1948); Uveges v. Commonwealth of Pennsylvania , 335 U.S. 437, 69 S. Ct. 184, 93 L. Ed. 127 (1948); Gibbs v. Burke , 337 U.S. 773, 69 S. Ct. 1247, 93 L. Ed. 1686 (1949); State v. Miller , 16 N.J. Super. 251 (App. Div. 1951); In re Sabongy, supra; Zasada v. State, supra; State v. Raicich , 30 N.J. Super. 316 (App. Div. 1954); State v. Flood , 32 N.J. Super. 161 (App. Div. 1954); State v. Mastic , 20 N.J. 428 (1956). Deprivation of counsel in the constitutional sense is equally applicable to the entry of a plea equivalent to that of guilt as it is to the incidents of conventional trial (Uveges v. Commonwealth of Pennsylvania, supra; Palmer v. Ashe, Warden, etc. , 342 U.S. 134, 72 S. Ct. 191, 96 L. Ed. 154 (1951); State v. Gladstone , 17 N.J. Super. 467 (App. Div. 1952); Kokinda v. Carty , 30 N.J. Super. 253 (App. Div. 1954); State v. Rose , 40 N.J. Super. 40 (Cty. Ct. 1956), affirmed 41 N.J. Super. 434 (App. Div. 1956); State v. Forsythe , 42 N.J. Super. 275 (App. Div. 1956)), and such deprivation is of like significance whether it is accomplished by threat (Uveges v. Commonwealth of Pennsylvania, supra), inadvertence (In
re Carter, supra), pressure of judicial business (People v. Gordon , 262 App. Div. 534, 30 N.Y.S. 2 d 625 (App. Div. 1941)), mistake (Wilfong v. Johnston, Warden, etc. , 156 F.2d 507 (9 Cir. 1946)), haste (Poindexter v. State , 183 Tenn. 193, 191 S.W. 2 d 445 (Sup. Ct. 1946); United States v. Bergamo , 154 F.2d 31 (3 Cir. 1946)), conflict of interest (Glasser v. United States , 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); Noble v. ...