The New Jersey Law Journal, Volume XLV, No. 3, March 1922

by Various

STATE v. GRUICH.

(Essex Quarter Sessions, Dec. 27, 1921).

Criminal Abortion—New Trial—Postponing Sentence Days

Case of The State against Anne Gruich. On application for new trial.

Mr. Frank Bradner for Petitioner.

Mr. John A. Bernhard, Assistant Prosecutor of the Pleas, for State of New Jersey.

STICKEL, Jr., J.: Anna Gruich was tried before this Court, Judge Harry V. Osborne presiding, and, on February 21, 1919, convicted of abortion. The minutes of the Court at the foot of the entry of the verdict of the jury contain the words, “Sentence postponed.”

On the 23rd day of May, 1919, the said defendant was convicted by a jury on a second charge of abortion and, on June 5, 1919, sentence of both convictions was imposed by Judge Osborne, the sentences running concurrently.

The conviction on the second charge of abortion having been reversed by the Court of Errors and Appeals at a recent term of that Court and a new trial ordered, application is now made to this Court to grant a new trial on the charge of abortion of which the defendant was convicted on February 21st, 1919.

[Here two broad grounds are urged as warranting such action, the first ground involving a question of fact; that part of the opinion is not published. The second ground is that the Court, having postponed sentence thereafter to in a new term of the Court and without having noted in the minutes continuances of the day of sentence, imposed sentence upon the defendant, the contention being the Court then had no jurisdiction to impose any sentence. The opinion continues.—Editor].

And I am equally clear that there is no merit in her contention that the Court had no jurisdiction to sentence in the April Term upon a conviction had in the December Term.

The theory of the defendant seems to be that, because the minutes do not show that the time for sentence was fixed and then postponed from time to time until the sentence was actually imposed, therefore, no sentence day was, in fact, fixed, no continuance had, and, when the December Term expired, the power of the Court to fix a sentence day or impose a sentence ended.

The sentence file of this Court will show that the assumption of counsel is unwarranted, and that a day for sentence was fixed and regular adjournments of that sentence had from time to time until the day upon which sentence was imposed. But, even though we assume that no sentence day was fixed and no continuance in fact taken, the position of counsel in my judgment is unsound.

This case is controlled by the principles laid down in the opinion in Gehrmann v. Osborn, 79 N. J. Eq. 430; 82 Atl. Rep. 424, and by the decision in that case, and even though, as counsel for the defendant suggests, I may not be bound by the decision in that case, the reasoning, the logic and learning thereof is such that I am wholly content to be governed thereby in determining this case, and convinced that the decision in that case represents the law of this State.

There, as in this case, sentence was postponed, and, although more than two years elapsed before the defendant was actually sentenced, and, although the original postponement was the practical equivalent of an indefinite postponement of sentence, the Court upheld a sentence to State Prison. Here the sentence was imposed but a few months after conviction, and the postponement was not the equivalent of an indefinite postponement. And, like in the present case, there were no continuances of the sentence recorded in the minutes.

“The conclusion which I have, therefore, reached,” says Vice-Chancellor Garrison, “in the Gehrmann case, is that in the State of New Jersey, if a defendant has pleaded nolle contendere, or guilty, or has been convicted upon trial, the Court has the power, if the defendant does not object thereto, and therefore is assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may, at a subsequent time, hale the defendant before it, and impose the punishment in the same manner that it would have been justified in pronouncing upon the very day when the case was ripe for sentence.”

It will be observed from the opinion that the duty rests upon the defendant to object to an indefinite postponement of sentence; that his failure so to do creates a presumption that he assented thereto, and that his assent or acquiescence to such postponement disenables him to complain when thereafter the Court imposes sentence, whether within or without the term in which the conviction is had or plea taken.

Here not only is there no proof of an objection, but on page 23 of the testimony it appears that the defendant at least acquiesced in the postponement from time to time of the sentence.

Moreover, just as the research of the learned Vice-Chancellor convinced him that an indefinite suspension of sentence has been the custom in our State beyond the memory of those then connected with the administration or practice of criminal law in this State, so, from my own experience as a practitioner in and Judge of this Court do I know that for years it has been the practice to sentence on a given Monday after conviction; to sentence periodically all persons convicted or who have pleaded; to enter in the minutes “Sentence postponed” in bail cases and prisoners “Remanded for sentence” in jail cases and to advise defendant for counsel, or both, in open Court of the regular sentence day; for the clerk to make up a sentence list for said day; for the Court to use such list in sentencing; for the Court to postpone to another day sentences set down upon such sentence day when it so determined, the clerk noting the postponement and placing the case on the new sentence list of the Judge, and for the clerk to take the various sentence lists and file them as a part of the records of this Court. This practice I find was followed in this case and probably accounts for the repeated attendance of the defendant at the courthouse for sentence. The defendant was convicted on February 21st and the first sentence day of Judge Osborne thereafter was February 24th, 1919. The defendant’s name appears upon this list for sentence and a notation is made that the sentence was postponed to March 10th; the sentence list of March 10th shows a postponement to March 24th; that of March 24th a postponement to April 14th; that of April 14th a postponement to May 5th; that of May 5th a postponement to May 26th; that of May 26th to June 5th, and on June 5th sentence was imposed. If there is any question about this and the case is to be appealed, I would suggest that the Prosecutor submit as part of the record on this rule evidence of the practice of this Court in sentencing, together with the sentence lists of Judge Osborne covering the period in question.

The rule obtained in this case is discharged and the application of the defendant for a new trial denied.