BIGELOW, J.A.D.
This is an appeal from an order on habeas corpus, remanding appellant to State Prison. On October 28, 1940, defendant pleaded non vult to seven indictments for robbery and a month later sentences were pronounced, running consecutively for a total minimum of 20 years and maximum of 30 years. At no stage in the prosecution did he have the aid of counsel and this he alleges as ground for discharge from prison.
Counsel for the State argues that because the prisoner for ten years failed to demand release from prison, the reasons urged for his discharge should now be brushed aside. The earliest support for such a theory seems to be In re Tremper, 126 N.J. Eq. 276 ( Ch. 1939). The vice chancellor in that case found that although the court which sentenced the petitioner had lost jurisdiction of the cause and consequently that the conviction was void, yet the petitioner must remain in prison because he had delayed five years before asking to be released. The Court of Errors and Appeals held that the trial court had jurisdiction, that the imprisonment was lawful and so affirmed, but hinted no approval of the reasons on which Vice-Chancellor Buchanan counted. 129 N.J. Eq. 274 (1941). The vice-chancellor was followed by the Mercer County Court in In re Zee, 13 N.J. Super. 312 (1951), and again, while the order was affirmed on the merits, the subject of delay was ignored, 16 N.J. Super. 171 ( App. Div. 1951). The same County Court in In re Hodge, 17 N.J. Super. 198 (1951), refused to issue a writ of habeas corpus "because of the long and unexplained delay in applying for the writ."
The foundation of the late Vice Chancellor Buchanan's conclusion that unexplained delay should lead to denial of a writ of habeas corpus, was his strong opinion that issuance of the writ was always a matter of discretion. He said that a prisoner's right to the writ is not established simply by
"showing, prima facie, a reasonable possibility that the court, upon the issuance of the writ and the subsequent inquiry and hearing thereunder, would conclude that the sentencing court did in fact lack jurisdiction. * * * The court is required to determine, in its sound judicial discretion, whether under all the circumstances which the court has before it on the application in the particular case, the writ ought to be issued as a matter of justice, — all things considered."
Starting with that premise, he upheld the State's contention that "because of their long and unexcused delay, during which witnesses on the part of the State may have died or otherwise become unavailable or their memories dimmed, they (the petitioners) are not now entitled as a matter of justice and right, to have their claim entertained and passed upon." And he stated his conclusion "that an application of this kind, made only after more than four years and a half from the time of sentence, ought not to be entertained, at least in the absence of special circumstances."
We think that the discretion of the court on application for habeas corpus is not so broad as In re Tremper indicates. Our Habeas Corpus Act, modeled on the famous statute of 31 Car. II, c. 2, for many years provided that if the chancellor or any justice of the Supreme Court "shall deny any writ of habeas corpus by this act required to be granted, being moved for as aforesaid, they shall severally forfeit to the prisoner or party grieved the sum of one thousand four hundred dollars to be recovered in manner aforesaid." Pat. 168, § 10. While this penal clause has been omitted since the revision of 1874, that revision as well as the Revised Statutes of 1937 flatly commanded the court to "grant such writ without delay, unless it shall appear from the petition itself, or from the documents annexed, that the party applying therefor is, by the provisions of this act (chapter), prohibited from prosecuting such writ." Rev. 1877, p. 468, and R.S. 2:82-16. Cf. N.J.S. 2 A:67-17. Even though no application is made, the court is required to issue a writ when the court "shall have evidence from any judicial proceeding had before them that a person within this state is illegally confined and restrained of his liberty." R.S. 2:82-3 and N.J.S. 2 A:67-3. The statute is "liberally construed so as to secure, as far as possible, the liberty of the citizen." R.S. 2:82-1 and N.J.S. 2 A:67-1.
"The writ of habeas corpus is a writ of right when reasonable cause is shown, but not a writ of course. 39 C.J.S., Habeas Corpus, § 6." In re Gottsmann, 141 N.J. Eq. 271 ( E. A. 1948). And such was Blackstone's opinion: "If a probable ground be shown that the party is imprisoned without just cause, the writ of habeas corpus is then a writ of right, which `may not be denied, but ought to be granted to every man that is committed, or detained in prison or otherwise restrained, though it be by the command of the king, the privy council, or any other.'" 3 Blacks. Comm. 133. As pointed out by Judge Jacobs, "Although our decisions state that the writ of habeas corpus is issuable in the discretion of the court ( In re Van Winkle, 3 N.J. 348 , 355 (1950)), they recognize that when proper cause is shown, the issuance of the writ is a matter of right." State v. Ballard, 15 N.J. Super. 417 ( App. Div. 1951). And in that case, the Appellate Division determined that the allegations of the petition were legally sufficient to "require hearing thereon" and therefore reversed the refusal by the County Court to grant the writ.
When we look beyond the bounds of New Jersey, we find that the Criminal Court of Appeals of Oklahoma, following the doctrine of In re Tremper, has held in at least one case, Ex parte Ray, 87 Okla. Cr. 436, 198 P.2d 756 (1948), that the discharge of the prisoner may be refused where delay in applying for the writ has been so great that upon a retrial the state would be unable to present evidence to establish the alleged crime. To the same effect is the decision of the Pennsylvania Superior Court in Com. ex rel. Quinn v. Smith, 144 Pa. Super. 160, 19 A.2d 504 (1941). See also the opinion of a minority of the judges of the Supreme Court of Ohio, In re Levenson, 154 Ohio St. 278, 95 N.E.2d 760 (1950). On the other hand, the justice sitting in Albanese v. Hunt, 177 Misc. 151, 130 N.Y.S.2d 137 ( Sup. Ct. 1943) held that a delay of 14 years did not bar discharge. And while the Appellate Division ( 266 App. Div. 105, 41 N.Y.S.2d 646) reversed on another point, it concurred in the holding that laches did not prevent relief: "If his (prisoner's) contention is well taken, then he is entitled, even at this late date, to apply by means of habeas corpus for his release on the ground that he is illegally held in custody." Affirmed 292 N.Y. 528, 54 N.E.2d 379 ( Ct. App. 1944). And the same conclusion was reached by the California District Court of Appeals in Jones v. Heinze, 88 Cal.App.2d 167, 198 P.2d 520 (1948), where the state's attorney suggested that the discharge of the prisoner after the lapse of 23 years would make a travesty upon justice and would establish a bad precedent. The court said:
"Surely preservation of the historical guarantees of the Constitution can never establish a dangerous precedent, and a travesty upon justice under the circumstances of this case could result only from the failure of this court to adhere to such fundamental guarantees. The mere fact that it may be difficult or inconvenient to re-try the case after the lapse of so many years cannot justify a denial of the writ to correct the original failure of the trial court in the strict adherence to its mandatory constitutional duty."
And our own Appellate Division, in State v. Ballard, 15 N.J. Super. 417 (1951), held that the lapse of 12 years since the conviction, was not a sufficient reason for denial of the writ without a hearing. Compare Rule 2:7-13 that permits the correction of an illegal sentence at any time. State v. Weeks, 6 N.J. Super. 395 ( App. Div. 1950); State v. Janiec, 6 N.J. 608; certiorari denied 341 U.S. 955, 71 S.Ct. 1007, 95 L.Ed. 1376 (1951). The correction was made in one of these cases, five years after the original sentence was pronounced, and in the other case, eight years after.
In our opinion, delay in petitioning for relief is not a sound reason for denying relief on habeas corpus. The longer the unlawful imprisonment, the greater the wrong that the prisoner has suffered, and the stronger, not the weaker, are the reasons for judicial interference. If, indeed, the judgment is void, the prisoner is still presumed to be innocent. This presumption is no slight matter, but is one of the great principles embedded in our system of justice, and an essential of due process of law. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). That the State may now be unable to present evidence of the prisoner's guilt is no better reason for keeping him in prison, than it would be for keeping in prison without trial any suspected person whom the State is unable to prove guilty.
Petitions for habeas corpus are so numerous and in most cases are so frivolous, that judges are tempted to set up obstacles to hinder the use of the writ. But it is a tendency that must be resisted. We must repeatedly remind ourselves of the function and transcendent importance of the writ of habeas corpus. It is the judicial means whereby a man who is unlawfully kept captive, regains his freedom. "It goes in favor of the meanest criminal if illegally confined and to the highest official exercising the power of confinement, and relieves against illegal restraint by order of the highest authority." In re Stegman, 112 N.J. Eq. 72 ( Ch. 1932). We cannot wisely tolerate any weakening of this safeguard of individual liberty.
In most habeas corpus cases, the prisoner is held pursuant to what seems to be the judgment of one of our county courts. The proceeding is a collateral attack on the judgment. Since our statute, R.S. 2:82-13 b, now N.J.S. 2 A:67-14 b, like the common law, denies the benefit of the writ to a person imprisoned on the final judgment of a competent tribunal, the prisoner necessarily takes the position that what seems to be a final judgment is void and in fact no judgment. In re Friedlander, 135 N.J. Eq. 71 ( Ch. 1944). Sometimes the invalidity of the judgment is made apparent by a study of the record, while in other cases the judgment record on its face is valid and the attack depends on matters that can be proved only by the testimony of witnesses. Here, the prisoner has the burden of proof. It may happen that the lapse of several years, with a resulting inability to find the necessary witnesses, or a dulling of memory, may prevent the prisoner from establishing to the satisfaction of the court the facts that render the judgment void. If the court is doubtful as to these facts, it will not discharge the prisoner. Ex parte Workman, 89 Okla. Cr. 289, 207 P.2d 361 ( Okla. Crim. App. 1949); Com. ex rel. Vovanski v. Smith, 114 Pa. Super. 547, 19 A.2d 739 ( Pa. Super. 1941). It is only in some such way that delay prejudices the applicant for habeas corpus.
The substantial ground for attack on the conviction of Cynkowski is that he was denied counsel, contrary to Article I of our Constitution, a subject considered with much care in State v. Ballard, supra, and State v. Gladstone, 17 N.J. Super. 467 ( App. Div. 1952). Where the circumstances make it unfair to accept a plea of guilty which is offered without the advice of counsel, or to put the accused to trial without counsel, then the resulting conviction is void. Among the circumstances that must be considered is the "ignorance, youth or other incapacity of the defendant." Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686 (1949). In the appeal before us, the petitioner was 21 years old at the time he pleaded. He had been previously convicted, when he was 18 years old, of stealing an automobile and sentenced to the Rahway Reformatory, and the following year, for the same kind of offense, he was sentenced to the Essex County Penitentiary for 18 months. He did not ask that counsel be assigned to him. There is nothing to indicate that he was ignorant of the meaning of the charge for which he stood indicted or that he did not fully understand the effect of his plea, or that able counsel would have advised him to plead not guilty. We find in the present instance no impropriety in the acceptance of the plea. Because of this conclusion and because the other reasons for discharge presented by the prisoner are clearly without merit, the order is
Affirmed.