On Junе 25, 1957, in the Circuit Court of Preston County, West Virginia, petitioner Carroll entered a plea of guilty to a charge of breaking and еntering, the statutory penalty for which offense is confinement in the penitentiary for an indeterminate term of from one to ten years. The court accepted the plea but, at the request of the prosecuting attorney, continued thе case for sentencing to June 26 to allow the prosecutor time to prepare an information charging pеtitioner with two prior felony convictions. These prior convictions, if admitted by petitioner or if he denied them and the stаte proved his identity to the satisfaction of a jury, would invoke the state habitual criminal statute and compel the court to sentence petitioner to imprisonment for life. W.Va.Code, §§ 6130 and 6131 [61— 11-18, 61-11-19] (Michie 1961). On June '26 the recidivist information was filed and at thаt time petitioner, in answer to questions propounded by the court, acknowledged he was the same person who hаd been convicted of the prior offenses stated in the information. Based on these admissions petitioner was sentеnced to life imprisonment.
In a habeas corpus petition filed in the District Court for the Northern District of West Virginia on August 28,1964, petitioner alleged that the life sentence was void as the state court lacked jurisdiction because it failed to “duly caution” him of his rights and the consequences of his admissions as required by the statute in question and that this failure was also a denial of due proces of law. The District Court concluded that, based on testimony taken at a hearing, the judge of the state trial court had cautioned petitioner as to the nature and effect of the recidivist proceedings. The petition was dismissed. We think the facts and circumstances of the case do not support the conclusion and that the petition was improperly dismissed.
This same issue has been before this court ón prior occasions. In Hooker v. Boles,
“ * * * To satisfy the minimum requirements of fundamental fairness under the circumstances the prisoner should have been told of his right to admit, or to deny, or remain silent and have the issue of his identity submitted to a jury. Furthermore, he should havе been told that the consequences of his admissions would be a mandatory life sentence. * * * ”
These principles werе recently applied in Crabtree v. Boles, 4 Cir.,
In the above cited cases the ultimate factual issue was whether the prisoner was “duly сautioned.” So it is in the instant case a question of fact. The sentencing court’s record may, and sometimes does, supply the information necessary to a determination. A transcript of the recidivist proceedings may clearly disclose that a sufficient explanation or warning was given. In the absence of reliable record disclosures, the District Court must rely uрon proper evidence presented at a hearing and determine, from a preponderance thereof, the issue at hand.
The District Court’s finding that petitioner had been cautioned was based on the testimony of the proseсuting attorney and the Cleric of the Circuit Court of Preston County given at the hearing below. These two witnesses, the petitioner аnd one of his appointed state court counsel were the only persons to testify. The testimony was in conflict. If the tеstimony of these witnesses was the only evidence presented, we would accept the District Court’s finding. However, we conclude that the court did not accord to other evidence the full weight to which it was entitled, evidence which did not involvе the element of fallibility of human memory.
Although there was no official reporter’s transcript of the recidivist proceedings in the state court, there was in the record a written statement prepared and signed by the clerk and dated June 26, 1957. This statement appears to be, and was obviously intendеd to be, a complete chronological recital of the events which occurred on June 26 at the recidivist рroceedings, even including counsel’s objections as to the validity of one of the prior convictions. Nowhere in this seemingly comprehensive written statement did the clerk state facts which would show petitioner had been informed or cаutioned as to his rights. It does not even contain the conclusory statement that petitioner was “duly cautioned.” To disregard this comprehensive statement which was a formal part of the court record and rely upon the ability of witnesses tо recall what actually occurred approximately eight years earlier would not, in our view, be justified, particularly where the sentence controls and disposes of the whole of the prisoner’s remaining life. This document discloses with scarcely less certainty than a reporter’s transcript what occurred on the day in question and, as stated, it does nоt disclose that petitioner was cautioned in any manner. We think the District Court’s finding was clearly erroneous and lacks prоper evidentiary support. Consequently, the life sentence is void as the court was without jurisdiction to impose it.
The reсord reveals that petitioner has served his valid sentence for the substantive offense of breaking and entering as he is entitled to and has been credited with time off for good behavior and for working as a “trusty.” Therefore, he is entitled to his immediate release. The respondent Warden is so directed.