For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
[54 NJ Page 331] Defendants applied separately to the Appellate Division for leave to appeal as indigents from separate judgments of the Bergen County Court denying their respective petitions for appointment of counsel and for post conviction relief. The Appellate Division granted defendants leave to appeal, denied them counsel and dismissed their appeals as patently frivolous and without merit.
Defendants then filed individual petitions for certification to this Court. We granted leave to each defendant to appeal and ordered the appeals consolidated. 52 N.J. 169 (1968).
The undisputed facts are as follows: On March 30, 1960, defendants and one Joseph Michael Moon who does not appeal, were indicted in the United States District Court for the District of New Jersey, on two counts: (1) for robbery of money of the River Edge, New Jersey, Savings and Loan Association, in violation of 18 U.S.C.A. § 2113(a), and (2) for putting the life of the bank president, W. Sheldon Davis, in jeopardy by use of a dangerous weapon, to wit, a firearm, in violation of 18 U.S.C.A. § 2113(d). On May 31, 1960, in the course of trial, defendants pleaded guilty to the indictment. On July 1, 1960, they each received ten year terms on each count, the terms to run concurrently.
Two weeks before the imposition of the federal court sentences, two indictments were returned in Bergen County against each of the defendants. The first, and the one involved here, charged them with feloniously carrying and possessing a dangerous weapon, to wit, a gun, with intent to use it unlawfully against another, on February 27, 1959 in River Edge, New Jersey, contrary to N.J.S. 2 A:151-56. The second charged them with kidnapping Davis on the same date. Defendants pleaded not guilty to the first indictment on July 12, 1960, but retracted this plea and pleaded guilty on November 30, 1962. The second indictments, charging kidnapping, were then dismissed. On January 4, 1963, they were each sentenced to the New Jersey State Prison for nine years, 364 days to ten years, the sentences to run consecutively to the federal sentences they were then serving.
Four years later, defendants filed the above mentioned petitions for post-conviction relief. (By this time they had been released by the federal authorities into state custody to begin their sentences.)
Although defendants raised various grounds for reversal in both courts below, only two appear in the petition for
certification filed here by the Public Defender. (The balance defendants have raised pro se.) The first ground for reversal urged by the Public Defender is that the sentences were arbitrary and excessive and therefore should be vacated; the second, that the state prosecution following the federal conviction placed defendants twice in jeopardy for the same offense. We shall discuss these grounds in that order.
Are the sentences arbitrary, excessive and illegal because there was a difference of only one day in the minimum and maximum terms?
As above stated, defendants were sentenced to nine years, 364 days to ten years. The thrust of their argument is that these sentences are arbitrary. They reason that because the minimum sentence has a direct bearing on the length of time a convict must serve before being eligible for parole, the statutory provision requiring that a minimum and a maximum sentence be imposed, N.J.S. 2 A:164-17, is for the purpose of parole. They argue that the imposition of the type of sentence here imposed is in effect an evasion of the parole statute (N.J.S.A. 30:4-123.1, et seq.) and therefore arbitrary and an abuse of discretion.
In order to assay the merits of defendants' arguments it is necessary to ascertain the origin and purposes of the minimum-maximum sentence mandate and its relation to parole. We proceed first to consider the history of sentencing. In State v. Moore, 21 N.J. Super. 419 (App. Div. 1952), in tracing the history of sentencing, the court said:
"The common law punished treason and felony with death, corruption of blood, loss of dower and forfeiture of lands, goods and chattels and, on conviction of misdemeanor, the punishment was that of fine and imprisonment, in the discretion of the court. O'Regan and Schlosser, Criminal Laws of New Jersey, p. 128, sec. 113. In 1898, the Legislature adopted 'An Act for the punishment of crimes (Revision of 1898),' L. 1898, c. 235, p. 794, and by sec. 217, provided that the penalty of one ...