Gaulkin, Foley and Lewis. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Defendant Kirkland is in custody awaiting trial upon an indictment which charges him with atrocious assault and battery. After the indictment was returned, he sought his freedom, by way of habeas corpus , upon the grounds hereafter set forth. After a hearing, the trial judge denied the relief sought. We granted leave to appeal.
Defendant contends that his rights under the State and Federal Constitutions have been violated and he has been denied due process of law because counsel was not assigned to advise and assist him when he was brought before the municipal court for a preliminary hearing and examination pursuant to R.R. 3:2-3 and R.R. 8:3-3, citing In re Garofone , 80 N.J. Super. 259 (Law Div. 1963) and Gideon v. Wainwright , 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963). Defendant
argues that this taints the indictment and it must be dismissed, for if he were convicted upon it, the conviction would have to be set aside.
We lay aside the question whether habeas corpus is the proper vehicle upon which to mount this attack, and, for the purposes of this opinion, we accept defendant's version of the facts.
Defendant asserts that he was arrested and taken to the Elizabeth Municipal Court, and there the magistrate questioned him and the complaining witness informally. Neither he nor the complaining witness was sworn, and neither got "up on the witness stand." Defendant says that after this informal questioning the magistrate "asked me * * * did I have a lawyer and I told him no. He asked me did I think I could afford one and I told him no, that my mother couldn't afford it at the time and he sent the case to the Grand Jury."
No verbatim record was made of the proceedings before the magistrate. The magistrate testified he could not remember all of the details of what had transpired. He said:
"Yes, I apparently arraigned [ sic ] this man, asked him his age, asked him to enter a plea of not guilty , I asked him if he wanted to be represented by counsel or wanted a postponement for a week or two, and he said he wanted to proceed, and that was the end of the matter as far as I was concerned * * * I proceeded. I held a preliminary hearing and at the end of it I set bail at $1,500 and held him for the Grand Jury." (Emphasis ours)
When asked "What did the hearing consist of?" he answered, "I couldn't tell you. I have no notes here."
The magistrate did not "arraign" the defendant. The proceedings before our magistrates are often loosely called arraignments, but they are not -- they are "preliminary hearings" or "preliminary examinations." Preliminary hearings and preliminary examinations are provided for by R.R. 3:2-3 and R.R. 8:3-3, while arraignments are governed by R.R. 3:5-1 and R.R. 8:4-2. An examination of the rules will show that there are significant differences between arraignments and preliminary hearings and examinations. One of
those differences is that the magistrate is not authorized to, and should not, ask the accused to plead to a crime beyond the magistrate's jurisdiction, in a preliminary hearing or examination. R.R. 8:4-2. And note that R.R. 1:12-9(a) provides, "Where a person charged with crime appears in a trial court without counsel," counsel must be assigned unless ...