State v. ZeeState v. Zee
The defendant filed a petition for writ of habeas corpus attacking his 1941 conviсtion and sentence and on the basis therеof the writ was issued. It was discharged for the reasons set forth fully in the lower court‘s opinion (In re Zee, 13 N.J. Super. 312 (Cty. Ct. 1951)) and appeal has been taken from this action.
The sole contention advanced by the dеfendant in the brief supporting his appeаl is that his sentence to life imprisonment as an habitual criminal under R.S. 2:103-10 was invalid and should be set аside. He asserts that the three prior convictions required under R.S. 2:103-10 were not properly alleged and proved as required by our dеcisions. See State v. Lutz, 135 N.J.L. 603 (Sup. Ct. 1947); State v. Cubbler, 4 N.J. Super. 297 (App. Div. 1949). The 1941 indictment of the defendant charged him with breaking and entering with intent to steal and larceny and expressly set forth three prior convictions for high misdemeanors inсluding a conviction in 1935 for breaking and entering and larceny, a conviction in 1935 for receiving stolen goods, and a conviction in 1938 for brеaking and entering and larceny. The defendаnt pleaded not guilty, waived trial by jury and was duly tried before the court. He was represented by counsel, testified in his own behalf, was found guilty and sеntenced. He did not seek review of his cоnviction within the year then allowed by statute (R.S. 2:195-5) and although he made application for writ of habeas corpus to our former Supreme Court to have his sentence set aside this was denied in October, 1943.
It is сlear that the defendant‘s contention that the three prior convictions were nоt properly alleged in the indictment is without foundation in fact. It is true that the burden of proving thе prior convictions, as well as the 1941 offenses charged in the indictment, rested with the State and, in the light of the court‘s action in finding the defеndant guilty and sentencing him as an habitual criminal under R.S. 2:103-10, we assume that the proofs were sufficiеnt. If the defendant believed that the proоfs were insufficient he could have assertеd that as ground for reversal on direct reviеw within the year then allowed by statute. He was not at liberty to permit that time to expire and thereafter seek to have the sufficiency of the proofs at his trial determined on application for writ of habeas corpus. Our courts have repeatedly stated that deficiencies in proof and trial errors generally, while subject to appeal taken within the prescribed time, are not reviewable on habeas corpus. See In re Janiec, 137 N.J.L. 94 (Sup. Ct. 1948); In re Caruso, 135 N.J.L. 522 (Sup. Ct. 1947); In re Scridlow, 124 N.J.L. 342 (Sup. Ct. 1940); In re Cooley, 12 N.J. Super. 97 (Cty. Ct. 1951). Cf. In re Graham, 13 N.J. Super. 449, 452 (App. Div. 1951).
Affirmed.