For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Hall, J.
These consolidated appeals bring before the court again the question of the validity and duration of the continued confinement of one of those individuals originally convicted and sentenced in the criminal courts for murder committed prior to having attained the age of 16 years and before the decision in State v. Monahan, 15 N.J. 34 (1954), which held jurisdiction over such an offense resided exclusively in the Juvenile and Domestic Relations Court. That Monahan did not automatically entitle such persons to release from imprisonment imposed under the law as it previously existed was determined in Johnson v. State, 18 N.J. 422 (1955), certiorari denied 350 U.S. 942, 76 S. Ct. 318, 100 L. Ed. 822 (1956). Smigelski, another of the very few so imprisoned when Monahan was decided, represents the question in a somewhat different factual and legal setting. The facts are not in dispute.
On September 12, 1947, when he was 14 years old, admittedly he feloniously killed another and was subsequently indicted for murder by the Hudson County grand jury. After a not guilty plea was entered, his motion to quash the indictment or to transfer the matter to the juvenile
court on the ground the latter tribunal had exclusive jurisdiction under the Juvenile Court Act was denied by the Court of Oyer and Terminer, and the denial upheld on appeal. State v. Smigelski, 137 N.J.L. 149 (Sup. Ct. 1948), appeal dismissed 1 N.J. 31 (1948). The appellate tribunals held, following In re Mei, 122 N.J. Eq. 125 (E. & A. 1937), that murder by a juvenile could not constitutionally be removed from the jurisdiction of the criminal courts despite statutory directions otherwise. Thereafter he changed his plea to non vult (R.S. 2:138-3, now N.J.S. 2 A:113-3) and in January 1949, before he had become 16 years of age, was sentenced in the Court of Oyer and Terminer to a term of 25 to 30 years. Under the law as it then existed, there was no question but that the court had jurisdiction and the proceedings, conviction and sentence were entirely proper and regular.
Monahan was decided March 22, 1954, overruling Mei. On the strength thereof Smigelski, through the same experienced personal counsel who had represented him previously, promptly petitioned the court to vacate the plea and sentence. On June 29, 1954 (ten months before the decision in Johnson) the assignment judge so ordered, and further directed, assumedly over objection, that "the petitioner be proceeded against forthwith in the Juvenile and Domestic Relations Court of Hudson County, in accordance with the statute in such cases made and provided, and the petitioner remain in custody * * *." No statute of limitations on the offense had, of course, run. A transfer order was signed on August 21, followed by a formal complaint in the juvenile court charging him with delinquency by reason of the killing.
The hearing before the juvenile court judge was held on August 25, 1954 when the complaint was filed. At that time Smigelski was just over 21 years of age. (Institution records show his birth date as August 13, 1933. He claims to be a couple of months older. The difference is of no moment as we see it, even though on the basis of the record birth date he had not reached 21 when the law court ordered him
to be proceeded against in the juvenile court.) His counsel moved to dismiss the complaint for lack of jurisdiction in the court on the ground that such power did not extend over persons who had passed 18 years of age. The judge denied the application, holding the age when the act was committed and not that when the party is tried controls. No plea or contention of double jeopardy or autrefois convict was made. Smigelski then, saving his jurisdictional contentions, admitted the commission of the act and pleaded guilty to the charge of juvenile delinquency based thereon. He was remanded to Bordentown Reformatory pending the requisite investigation preparatory to disposition of the charge. On September 30, 1954 he was committed to the reformatory "for an indefinite term" and has since been confined there. Without a doubt the proceeding in the juvenile court met every requirement of constitutional due process from the procedural aspect.
In September 1956, after unsuccessfully seeking parole, he sought discharge from confinement by habeas corpus, claiming he was rehabilitated and had been unjustly denied parole by the reformatory board of managers. The writ issued and a hearing was held, at which Smigelski was represented by competent court-appointed counsel. The board denied he was yet fit for return to society even on parole, although there was no trial of the issue, since the court discharged the writ on the determination that habeas corpus did not lie to review alleged arbitrary action or abuse of discretion by a paroling authority, such being the proper subject only of an appeal to the Appellate Division under R.R. 4:88-8. No appeal was taken or further proceedings had along this line. It is to be noted that on this occasion it was not urged that the detention was invalid for lack of jurisdiction in the juvenile court, but on the contrary the validity of the commitment and confinement was expressly conceded.
Smigelski obtained another writ in 1958 on a complaint brought by his present assigned counsel (who are to be
commended for their conscientious and able presentation both in the trial court and on these appeals), charging unlawful imprisonment on the basis of lack of jurisdiction in the juvenile court in 1954 because he was then over the age of 21. A full hearing was held and the matter defended on behalf of the board of managers. The trial judge discharged the writ on the basis of the decision in Johnson ...