Price, Schettino and Gaulkin.
Appeal is from the denial by the Superior Court, Law Division of a writ of habeas corpus.
Petitioner Kronyak, Charles Wille, Jr. and Richard Ascoli, were indicted in 1954 for armed robbery (N.J.S. 2 A:141-1) and for conspiracy (N.J.S. 2 A:98-1). On arraignment, all three pleaded not guilty and trial was set for September 20, 1954. On that date, petitioner and Ascoli changed their
pleas to non vult to armed robbery, and Wille changed his plea to non vult to the conspiracy charge. Petitioner and Ascoli were sentenced on October 8, 1954 to a term of not less than seven and not more than ten years for armed robbery. Wille was sentenced on the conspiracy charge.
Petitioner and Ascoli on July 10, 1954 had given signed statements to the City of Clifton police implicating all three of them. After their commitment to State Prison defendant and Ascoli recanted, and signed an affidavit dated November 23, 1954 stating that Wille had not joined in the conspiracy and had not participated in the crime. Armed with this affidavit, Wille applied for and was granted a writ of habeas corpus. Hearings on the return of the writ were held in March, 1955. At these hearings petitioner and Ascoli testified that Wille had had nothing to do with the conspiracy or the robbery. Wille testified to the same effect. The County Court, after hearing the contrary testimony of the Clifton police officers, a disinterested minister, and the three attorneys who had originally represented the three prisoners, disbelieved petitioner and his two friends and discharged the writ.
On April 15, 1955 the three men were again brought before the county judge who had heard the application for habeas corpus. There they were told for the first time that they were guilty of criminal contempt because they had testified falsely in the habeas corpus hearings. Only Wille was there represented by counsel, appointed by the court, but even this counsel was unaware of the contempt charge before coming into court. Counsel asked for an adjournment to meet the charge but his request was denied. Petitioner was then summarily sentenced for criminal contempt "in that he did willfully commit perjury by giving false testimony under oath." He was given a term of one to one and a half years which was to begin after his prior sentence had been served.
On January 24, 1958 petitioner made application to the Superior Court, Law Division, for a writ of habeas corpus pursuant to R.R. 1:12-9(c), to review the judgment of conviction of contempt. As the alleged defects in the
contempt proceeding are jurisdictional if proved, it is no bar to the issuance of the writ that petitioner did not avail himself of his statutory right to appeal. N.J.S. 2 A:10-3; cf. In re Caruso , 10 N.J. 184, 190 (1952).
On July 24, 1958 the Superior Court entered an order denying petitioner's application for the writ, saying:
"1. That the contemptuous acts were such that they were inter-twined with the hearing of testimony on the application of Charles Wille for a writ of habeas corpus and the prosecution of the contempt against the defendant herein was presented in the aforementioned application of Charles Wille, and no notice was required inasmuch as the Judge of the Passaic County Court was authorized to dispose of the matter summarily. State v. Zara[f]u , 35 N.J. Super. 177 (App. Div. 1955), 182.
2. That the Passaic County Court had jurisdiction to adjudicate the defendant guilty of contempt and impose the ...