36 A.2d 213 | N.J. | 1944
James I. Hardman was convicted of the crime of robbery in the Essex County Court of Quarter Sessions on October 16th, 1941, before Judge Flannagan and a jury. He was sentenced on December 3d 1941, by the trial judge to a term in state prison of from fourteen to fifteen years. It will be observed that a period of forty-eight days elapsed from the date of conviction until the date of sentence. The statute R.S. 2:192-1 provides: "In all criminal cases where sentence is by law to be imposed, it shall be the duty of the trial court to impose sentence upon a defendant within forty-five days after such defendant shall have been convicted of * * * a crime * * *." *258
Hardman seeks a writ of habeas corpus to review the legality of the sentence on the theory that the statute quoted makes mandatory the imposition of sentence within forty-five days of conviction and that the court had no jurisdiction after that period. His contention is that not having been sentenced within the forty-five day period of limitation, the sentence is void and he is therefore entitled to be liberated from prison.
We are not in accord with that view and so must deny the application. In Ervolini v. Camden County,
"It is argued that the effect of these legislative enactments is to require the court to impose sentence within thirty days after the rendition of a verdict, and that although the defendant in this case was seeking to have his conviction set aside the court must impose the sentence within the time fixed by law, although it was considering the matters urged on the defendant's rule, and thereby lost its power to impose sentence. Thus, the defendant by trick, could defeat the state of its remedy.
"It is inconceivable to suppose that the legislature intended any such result. As Vice-Chancellor Garrison pointed out inState v. Osborne, supra, the power to suspend sentence where the defendant does not object, resides in the courts of this state. It certainly resides in these courts where defendant, by his own motions, has delayed the imposition of sentence. Otherwise, the legislative enactment, which was obviously intended to be merely directory, would result in fugitives from justice and those who sought a new trial by rule to show cause on motions in arrest of judgment securing a release from the penalties of the law and would, by the mere passage of the days, secure immunity from punishment."
In Sheldon v. Sheldon,
"As to mandatory and directory statutes, it is said that when the provision of an act is the essence of the thing required to be done it is mandatory; otherwise, when it relates to form and manner, and where an act is incident, it is directory merely.Bouv. L. Dict. (Rawle's 3d rev.) 3130. The essence of the provision under consideration is service, not time of service; the latter is rather an incident of the main purpose, except that service must be made in time to *260
prevent any curtailment of the period allowed after the return day for filing an answer. The word `shall' is to be construed as merely permissive when no public benefit or private right requires it to be given an imperative meaning. 36 Cyc. 1161. (Cited approvingly by the Court of Errors and Appeals inMcDonald v. Freeholders of Hudson,
Tested by that rule certainly no public benefit or private right would be lost by a delayed three days beyond the statutory period. The defendant lost no right of appeal, nor do we think his rights were prejudiced at all by the delay.
The application will be denied, but without costs.