Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
Petitioner Benjamin Petrolia appeals from a judgment of the Law Division, Passaic County, denying his application for a writ of habeas corpus.
In October 1954 petitioner was convicted of the crime of armed robbery committed on August 4, 1950. His appeal was dismissed by the Appellate Division as out of time. State v. Petrolia , 37 N.J. Super. 326 (App. Div. 1955). The New Jersey Supreme Court thereafter reversed the conviction and remanded for a new trial on the ground that petitioner's constitutional rights had been violated by the admission into evidence, over defense counsel's objection, of a written confession which had been obtained on August 7, 1950 involuntarily and by reason of "unlawful physical
applications" on the part of the police. 21 N.J. 453 (1956). The facts concerning the hold-up and the giving of the confession are stated in the opinion last cited.
Petitioner was retried in September 1956 and convicted of the same offense, armed robbery. On appeal to the Appellate Division, it was urged principally that the trial judge had erred in instructing the jury with respect to Petrolia's flight to Chicago after arrest and before the first trial. The judgment was affirmed. 45 N.J. Super. 230 (App. Div. 1957), certification denied 25 N.J. 43 (1957). Petitioner applied to the United States Supreme Court for a writ of certiorari , which was denied. 355 U.S. 942, 78 S. Ct. 431, 2 L. Ed. 2 d 422 (1958).
At the retrial, the State did not offer into evidence the written confession which had been used at the first trial. However, the State called, among other witnesses, Officers Dworak, Murphy and O'Brien who did testify that Petrolia, on August 7, 1950 and in their presence, had orally admitted taking part in the robbery. Petitioner argues that since the admission of guilt made in the presence of these officers was made at the same time and as part of the same general occurrence as concerned the giving of the written confession, which was held to have been extracted by force and violence, his oral admission was as untrustworthy as the confession and that, as a result, the second conviction is as constitutionally vulnerable as the first.
The seemingly anomalous feature of the present collateral attack on the judgment is that, when the State's witnesses did testify as to the petitioner's admission of participation in the hold-up, the same counsel who had defended at the first trial and who had just succeeded in obtaining a reversal of the first conviction because of the coerced confession, did at no time object to or move to strike such testimony. The charge of the court to the jury, which did not in any way refer to the admissions made by the defendant, was said by defense counsel to be a "most commendable" one, except as to the reference therein to the accused's flight. And,
neither on appeal to this court nor in the petitions for certification to our Supreme Court and the United States Supreme Court was any question raised, as grounds for review, regarding the defendant's oral admissions as testified to by the police officers. The denial of the petition for certiorari by the United States Supreme Court took place February 3, 1958. Only seven days later petitioner applied to the United States District Court for the District of New Jersey for a writ of habeas corpus , thereby raising for the first time the ground he presently advances. (That court is holding petitioner's application "in abeyance" in order to afford him an opportunity to exhaust state remedies with regard to the issue.)
We do not rest our conclusion in this matter on the reasons stated by the Law Division judge for denying petitioner's application for a writ. The court below was first persuaded that "whether or not the oral admissions and confessions of Petrolia were voluntary or * * * the product of police brutality, certainly, presented a fact question to be determined by the jury" and that the court's charge had left to the jury all issues of fact. In our opinion, however, it would have been error for the court in which defendant was retried to have permitted the jury to find as a matter of fact that the admissions or confessions were voluntarily made; that matter had been conclusively determined in defendant's favor by the Supreme Court on appeal from the first conviction. In any event, the voluntariness of the admissions and confessions was not submitted to or decided by the jury in the second trial.
The Law Division also found that the action of the trial court in admitting into evidence the officers' testimony regarding Petrolia's oral admissions to them was at most a mere trial error and hence not reviewable on a writ of habeas corpus. State v. Mastic , 20 N.J. 428, 430 (1956). In State v. Jacobson , 28 N.J. Super. 226, 230 (App. Div. 1953), it was held in specific ...