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In re Forcella

Decided: June 3, 1963.

IN THE MATTER OF THE PETITION OF LEO ROBERT FORCELLA FOR A WRIT OF HABEAS CORPUS


For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. Schettino and Haneman, JJ., concur in result. Schettino, J. (concurring). Mr. Justice Haneman joins in this opinion.

Per Curiam

Leo Robert Forcella appeals from an order of the Superior Court, Law Division, dismissing his petition for a writ of habeas corpus. Forcella shot and killed his girl friend, Marion Wetzel, on February 4, 1960. At that time he was on parole after having served 10 years of a 25 to 30-year sentence for killing his wife in 1948. He pleaded non vult to the earlier killing, which, he asserted, occurred during an interval when he had blacked out -- the identical and only defense offered by Forcella to the second killing. For the slaying of Marion Wetzel, he was convicted of murder in the first degree without a recommendation of life imprisonment. He appealed, claiming that the verdict was against the weight of the evidence and that the court improperly charged the jury. We affirmed. State v. Forcella, 35 N.J. 168 (1961).

On July 30, 1961 Forcella obtained a stay of execution pending consideration of his petition for rehearing, which was denied without opinion on December 11, 1961. A second petition for stay of execution, submitted by present counsel, neither of whom represented Forcella at trial or on the first appeal, was denied by this court on January 29, 1962. The following day a Justice of the United States Supreme Court granted Forcella a writ for a stay of execution to allow him to petition that court for a writ of certiorari. On April 30, 1962 his petition was denied. 369 U.S. 866, 82 S. Ct. 1035, 8 L. Ed. 2 d 86 (1962).

Forcella then applied to the United States District Court for the District of New Jersey for a writ of habeas corpus, asserting that the deficiency of New Jersey law and of the indictment and the circumstances under which the trial was conducted robbed the State proceedings of that essential fairness

called for by the due process clause of the Fourteenth Amendment. That court determined that no New Jersey court had ruled on these arguments, and on June 26, 1962 it denied Forcella's petition because he had failed to exhaust his state remedies. An order staying execution during the District Court proceedings remained in effect to allow Forcella to pursue whatever means of redress remained open to him in our courts.

Pursuant to N.J.S. 2A:67-16, Forcella made application for a writ of habeas corpus to the Superior Court, Law Division. The matter was assigned to the judge who presided at the trial, and a hearing was held on September 21, 1962. The petition was denied and the cause dismissed.

The complaint seeking the writ contains eleven counts all of which are cast by the pleader in constitutional terms. We have considered the merits of the grounds advanced in the complaint and find no substance in any of them. We add that, for the most part, the charges relate to matters which are evident upon the face of the original trial record and which of course were reviewable, as to any claim of error, upon the appeal to us from the judgment of conviction. Habeas corpus cannot be used as a device for a second appeal from the original judgment. And insofar as the complaint appears to allege matters beyond the trial record, we find no allegations of fact which would justify a hearing.

The judgment is accordingly affirmed. Stay is denied.

SCHETTINO and HANEMAN, JJ., concur in result.

SCHETTINO, J. (concurring).

I concur but feel it necessary to set forth at length my views of the merits of defendant's eleven-count complaint.

Counts 1, 2 and 9 allege in substance that defendant was tried by a biased jury, unfairly selected. Forcella's motion for an order allowing his counsel to interview, examine or question the fourteen jurors in order to establish this charge was ...


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