While Morgan is on point, it appears there is a split in those jurisdictions that have decided this issue. Compare Roach v. State, 27 Kan.App.2d 561, 7 P.3d 319, 323 (2000), and Ex parte Owens, 88 Okla.Crim. 346, 203 P.2d 447, 449 (App. 1949), with Jackson v. Jones, 254 Ga. 127, 327 S.E.2d 206, 208 (1985), and State v. Cynkowski 19 N.J.Super. 243, 88 A.2d 220, 223-24 (App.Div. 1952). {15} We expressly join those jurisdictions that have declined to apply laches to habeas proceedings.
Cranford v. State, 156 Ark. 39, 245 S.W. 189. It is a fundamental right in the American system antedating any constitution and an essential of due process of law. Reynolds v. United States, 238 F.2d 460 (9 Cir., 1956); Shargaa v. State, 102 5.2d 814 (Fla., 1958), cert. den. 358 U.S. 873, 79 S.Ct. 114, 3 L.Ed.2d 104; State v. Cynkowski, 19 N.J. Super. 243, 88 A.2d 220 (1952); aff'd. 10 N.J. 571, 92 A.2d 782 (1952); People v. Morris, 260 Cal.App.2d 848, 67 Cal.Rptr. 566 (1968); People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432 (1966); People v. Di Manno, 15 Misc. 644, 182 N.Y.S.2d 937 (1959).
On the defendant's appeal the Appellate Division in a well considered opinion rejected the County Court's view that the defendant was thus barred but concluded that under the evidence presented, the contentions lacked merit. See State v.Cynkowski, 19 N.J. Super. 243 ( App. Div. 1952). We have also concluded that the contentions lacked merit but shall, nevertheless, consider the effect of the defendant's long delay in attacking his convictions and sentences.
It is part of his defensive armor. In the case of State v. Cynkowski, 19 N.J. Super. 243 ( App. Div. 1952), affirmed 10 N.J. 571 (1952), it was held: "The presumption of innocence is no slight matter but is one of the great principles embedded in our system of justice and is an essential of due process of law."
The defendant's proceeding by way of habeas corpus is a collateral attack on the judgment of conviction and is not maintainable. State v. Cynkowski, 19 N.J. Super. 243 ( App. Div. 1952); affirmed 10 N.J. 571 (1952); In re Janiec, 137 N.J.L. 94 ( Sup. Ct. 1948). In a very illuminating and instructive opinion by Chancellor Walker in the case of In re Davis, supra, it was held that:
There is no limitation of time within which an application for a writ of habeas corpus must be sought, and the mere fact that this petitioner failed to solicit the writ more promptly was not of itself a justifiable ground for the denial of its issuance. Vide, State v. Cynkowski, 19 N.J. Super. 243 ( App. Div. 1952), affirmed 10 N.J. 571 (1952). The petitioner alleged, inter alia, that he was in custody at the time of the trial and involuntarily absent from the courtroom when the jury rendered against him the verdict of guilty of the crime of robbery.
The office of the writ of habeas corpus is to secure the release of the applicant from custody. State v. Cynkowski, 19 N.J. Super. 243, 249 ( App. Div. 1952). Having accomplished its purpose to the advantage of the prisoner, it has spent itself.