For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Hall, J.
On March 18, 1959 the defendant shot and killed his mother and wounded his sister in a small luncheonette operated by the mother on Waverly Avenue in Newark. He was indicted for murder and originally entered a plea of not guilty in the Essex County Court. Michael Breitkopf, Esq., a practitioner of long years of experience both as an assistant prosecutor and on the side of the defense in criminal matters, was assigned to represent him. On June 22, 1959 defendant changed his plea to non vult, N.J.S. 2A:113-3. At the same time he entered similar pleas to indictments for atrocious assault and battery arising from the shooting of his sister and for armed robbery of a tavern and larceny of two automobiles. The latter crimes were committed about 24 hours before the shooting episode. On July 10, 1959 he was sentenced to life imprisonment on the murder charge. Sentences were also then imposed on the other charges, to run concurrently with the life sentence except that of 10 to 15 years for the robbery which was made consecutive thereto.
More than a year later Daniels filed a pro se application for habeas corpus. Present counsel was assigned, who we may say has represented his client with great diligence and ability. The application was then very properly molded into a motion in the original criminal cause to withdraw the non vult plea to the murder charge under R.R. 3:7-10(a). No attack was made on the pleas to the other indictments. The County Court (not the judge who accepted the pleas and imposed sentence) held a full hearing and concluded that the defendant should be permitted to withdraw the plea and stand trial. The State has appealed under claim of right. The matter comes to us directly because the indictment was for murder. R.R. 1:2-1(c).
Defendant has raised a preliminary issue that the order is interlocutory and not appealable without leave. His motion to dismiss on that ground was held pending argument on the main case.
We will treat this procedural point first. The State's right to appeal in criminal cases is a limited one. The only rule dealing with interlocutory appeals is R.R. 1:2-4(c), effective September 11, 1961:
"In any criminal cause the plaintiff may appeal to the appropriate appellate court:
(1) from an interlocutory order entered before trial, upon leave granted by the appellate court * * *
Defendant suggests that this appeal "would seem to be squarely within the intendment" of this rule since the order comes before a litigated trial in the case and permits the case to proceed to such a trial for the first time. We agree. Defendant presses his motion to dismiss, however, because the required leave of this court was not first obtained.
The State counters the motion by first urging that the matter should be treated as a habeas corpus proceeding, it having been originally instituted pro se in that form. In such event, the State has an absolute right of appeal where a discharge from custody is ordered because habeas corpus is not merely a further step in the criminal cause out of which it originates, but an independent civil proceeding with the order for discharge being the final judgment therein. State v. Rivers, 16 N.J. Super. 159 (App. Div. 1951). The difficulty with the argument is that habeas corpus does not properly lie in the instant situation since defendant did not seek, nor would he be entitled in any event to, a discharge from custody -- an indispensable prerequisite to the writ in its traditional application. In re Kershner, 9 N.J. 471
The State further points out that this court accepted and decided the State's appeal, without leave first obtained, in the somewhat similar case of State v. Rosania, 33 N.J. 267 (1960) and that the prosecution merely followed the procedural course seemingly approved there. That case, however, arose before the promulgation of R.R. 1:2-4(c); moreover, the question of appealability was not raised and we expressly passed over all adjective problems in order to ...