On the basis of a petition alleging his unlawful imprisonment by the Principal Keeper of the New Jersey State Prison, the writ of habeas corpus was issued to James E. Cooley under the authority of R.S. 2:82-1 et seq. By the return to the writ, the State predicates its detention of petitioner on a commitment of the former Camden County Court of Quarter Sessions, evidencing that on December 2, 1941, that court imposed on petitioner a sentence of not less than 4 nor more than 15 years. Petitioner entered upon service of such sentence and since no parole has intervened, is presently being held to serve the maximum thereof. Ex parte Fitzpatrick, 9 N.J.Super. 511 (Cty. Ct. 1950).
The basic contention of this petitioner is that he was convicted of the crime of atrocious assault and battery, which has a statutory maximum punishment of seven years (R.S. 2:110-1), and that there was illegally imposed upon him a sentence having a maximum in excess thereof. Examination of the indictment, copy of which is made a part of the petition, indicates that in addition to the crime of atrocious assault and battery, petitioner was charged therein with previous convictions of high misdemeanors, and it would thus appear that sentence was passed upon him as a multiple offender within the purview of R.S. 2:103-9, as amended L. 1940, c. 219; L. 1950, c. 315. This section is a portion of the statute referred to as the Habitual Criminal Act, which has been held by our courts to be constitutional. In re Caruso, 131 N.J.L. 505 (Sup. Ct. 1944); In re Caruso, 135 N.J.L. 522 (Sup. Ct., en banc, 1947); State v. Janiec, 9 N.J.Super. 29 (App. Div. 1950).
Despite petitioner's contention that there was no proof at trial of previous convictions, he was convicted by a jury on this indictment, as appears from a copy of the minutes of the Camden County Court of Quarter Sessions, vol. 8, p. 465, filed by petitioner in this cause. And although the indictment itself is miscaptioned "Sur. Indictment — Atrocious Assault and Battery," such has no effect on the essential substance of the indictment, which fulfilled the basic requirement of a charge of prior convictions within the principle of the Habitual Criminal Act, supra. Hence, it is clear that the petitioner, although asserting that his claim for relief brings into question the jurisdictional capacity of the court which imposed sentence upon him, really levels his attack at the validity of his conviction, on which such sentence was based. There was certainly, in view of the statutes quoted, the requisite jurisdictional power in the former Court of Quarter Sessions to convict him of the offense charged in the indictment and, based upon that conviction, there was clear jurisdictional authority to impose the sentence here questioned.
The State moves now to dismiss the petition for the writ of habeas corpus, on the ground that such writ may not be utilized for the purpose of appeal or writ of error, relying on the cases of In re Caruso, supra. I think this point is well
Accordingly, the motion to dismiss the petition for the writ is granted; the application for the writ of habeas corpus is denied and petitioner is remanded to custody.