*1 No. 235] Crim. [File Petitioner, NYGAARD, v. O. J. DAVIDSON, IVAN
Respondent. (48 578) NW2d Opinion filed June *2 Mills, R.Wm. for Petitioner. Attorney Christianson,
E. for General, State, T. Special Attorney Respond- Ghylin, M. for General, Clair Asst. ent. petitioned J. Ivan court for a Davidson has
Grimson, corpus. alleges petition writ of habeas He is im- his prisoned liberty Penitentiary and restrained of State Burleigh County, applica- at Bismarck, Dakota; North that his corpus tion for habeas has been denied the District Court of Burleigh County; pretense that the cause or confinement such or restraint is that he is held a District County Court of Cass the “crime of conviction three more felonies to his conviction the first imprisonment illegal on 7,1948,” Jan. and that the as there is no such crime either at common An law or statute. order petition. to show cause was issued The warden made attaching copy his return thereto a of an order denominated “sentence” and a commitment issued of the District .Court out of Cass, Dakota, State of North day 16th holding 1948 virtue of which he was restraining petitioner. hearing Upon A was had. that hear- ing attorney general transcript filed the and files of the proceedings on sentence. scope inquiry upon application an for a writ of corpus applied
habeas
determin
rules
must be
ing
corpus
thoroughly
whether a writ of habeas
should issue is
by Judge
discussed
Christianson for the court in the case of
Ryan Nygaard,
v.
ND
694,
70
297
NW 700.
conclu
corpus
sion is reached that the writ of habeas
cannot be utilized
appeal
inquiry
substitute
error;
for an
or writ
questions
jurisdiction.
is limited to
State
rel
ex
Smith v.
Lee,
Attacks
habeas
are
A
collateral.
impeached
irregularity
cannot be
for error or
anterior
they
jurisdiction.
unless
amount to- a lack of
*3
ordinarily
power
Jurisdiction is
defined as the
to hear
deter
and
irregularity
mine. No mere error or
in its exercise can ordi
narily
1548,1554,
judgment
render a
null. See Secs 1546,
Judgments, pages
3 Freemanon
3172,3179,and 3193. See also Maza
Petitioner
kahomni,
v. State of North Dakota,
it cannot be nullity, though unlawful; and it not a erroneous, general jurisdiction, if the court has. and, until reversed, cannot disregarded.” Judgment 15 Am Jur and Sentence, Sec p 102.
“Upon
corpus
ordinarily
inquire
habeas
the court
will
no fur
ther
jurisdiction.
than to determine whether the court had
jurisdictional inquiry
question
will
jurisdic
extend to the
of the
person
tion
subject
of the court over the
matter, and to
power
particular
its
to make a
order or
in the
entered
proceedings.”
Solberg,
In re
52 ND 518,
It that on Dec. 22, 1947, a criminal information was against petitioner charging filed committing him with rape degree. crime of pleaded the first To that information he guilty. jury A trial County was had before a Cass and on January petitioner rape 7, 1948, was found of in the first degree. question No is raised of the court’s
J44 rape prosecution. petitioner petitioner rep- and of the was throughout proceedings. resented counsel all January passed upon 16, 1948, On before sentence was attorney by conviction state’s leave of against filed an information under the habitual provides 12-0623 NDRC statute, Sec that: time “If at before sentence, ... shall appear felony, previously of that one convicted has con- been (3 of set victed crimes as forth in Sections . . 12-0621 times), attorney county more the state’s which .such conviction was had shall file an information with the court in accusing pre- had such such which vious convictions.” In that information the state’s accused “Committing of: the crime of conviction of three or more fe- prior degree lonies January to his conviction in the first charges
7,1948 heretofore, to wit: On the 7th day 1948,in the North Cass State of duly the said Dakota, rape defendant was convicted of the crime degree; prior in the first thereto, the defendant said duly day convicted on the 21st of June 1944 in'the District County, burglary Court Cass North Dakota the crime Penitentiary' the third was sentenced to the State years; at Bismarck for term of from three to five day the, thereto on or about the 25th October duly burglary defendant was convicted the crime of *4 Griggs County, District Court North Dakota, and was sentenced Penitentiary years; to the ‘State at' Bismarck for a term of ten prior day that thereto and on October, or about 25th 1939, duly grand the said defendant was convicted of the crime of larceny duly Penitentiary and was sentenced State Bis- at years, concurrently marck prior ‘a term of three run with the imposed prior date; same that thereto and day duly on the 20th of June 1935, the said defendant con- burglary victed in duly Point, Wolf Montana of the crime of and was Penitentiary Lodge sentenced to the State at Deer Montana years; prior for a term of five thereto and on about the day April duly 21st Í932, the said defendant was convicted in
145 County, crime North Dakota of the of Foster the District Court duly degree burglary in the third and was sentenced to years; Penitentiary term of three to five at Bismarck for a State about the 6th the said defendant was on or thereto burglary day duly convicted of the crime of of June 1931 Griggs County, North third in the District Court of duly Peniten- Dakota term in the State and was sentenced to a tiary year. one Bismarck of caption attorney in the the state’s because is claimed
Error part information accused of that or formal “committing more felonies. three or of conviction of the crime phrase however, is names no crime. It, It is true Bailey, parte part information. In Ex a material in fact thát the it is held that “The 278, 64 Pac2d 278, Okla Cr ‘being designated an habit the offense as the crime formation charged depends criminal’ immaterial as offense ual alleged.” 1943, re statute, The Sec 12-0623 NDRC the facts quires “accusing attorney to file an information such the state’s previous body'of convictions.” information previous out in detail. set convictions state’s body part the information. “The That is the material part charge It sets of an information is the substantial thereof. charge.” the character of the forth the offense and determines p 942. See also Informations, Indictments and Sec CJS Findling, 25 Am v. 123Minn Jur Habitual 413, 144 State NW p Criminal, Sec passed Bossart, v. this matter in State court has
This
part
information
formal
The
ND
“This is the part) caption (or larceny. charges petit an in- formal ‘The describe the offense need not state or or information dictment charged, therein or if misstatement variance so, it does *5 (Citing will immaterial.’ Sec from the indictment he CJ cases.) It matter of other follows as a course numerous only petit could tried and convicted that defendants larceny charged in the information.” previous alleges convictions. the facts
The information gist The of the information. misnomer That was the part requirements were immaterial. The of the statute formal give juris- to fulfilled. The information sufficient proceedings under the criminal Sec- act, diction habitual 1943, in with the tions 12-0621 and 12-0623 NDE.C connection rape. present conviction of the crime of upon proceedings transcript sentence shows The arraignment proper filing information after the of that name He was asked true was had. attorney. by the court that: have He advised “You state’s you charge, you right, have if a trial on this it, wish to proved charges right made this information to have guilty you may time either enter a this state, charges in- as made each one of these to you .may deny you and if words, admit or formation. deny In other you up prove them. I inform also them is the state penalty charges proved im- which can be if these that posed are penalty greater under the crime can than the be no county day you this on the 7th were convicted year.” January of this petitioner’s then asked the court whether
The counsel pleaded “guilty petitioner,, act,” the habitual if he rape charge. degree later on the first could be sentenced charges here “If are made court answered: admits these precludes upon information that a sentence and is sentenced rape, provided the conviction of first proper proceeding and that the sentence of this has imposed words, he is the limits of the law. other is within rather it, if he admits than this, sentenced now penalty simply rape charge I informed him the maximum but pleaded guilty. then either is same.” alleged as that this last will be remembered information It *6 bringing prior tbe convictions basis for before the its court that petitioner degree. had been convicted the first the On passed. no That still this conviction sentence had been juris- pending the trial court had before court. trial still rape charge he diction the what had said in discussion passing with counsel to the did divest not jurisdiction. interpre- that Furthermore, the most reasonable placed upon tation that be that that can discussion is he was continuing rape charge to exercise the over and was punishment including it in for he was to about pass. Otherwise, have been could sentenced later rape charge precluded by which the court said was pass. going sentence he was That is what the court proceedings intended is further borne out taken court thereafter. What he did as well as what all surrounding passing the circumstances of the sentence determining jurisdiction. must be considered in the court’s passed Before the sentence was if was asked any legal why imposed. there was cause sentence should not be pro- The defendant “No”. answered, Sec 29-2615 NDBC alleged appears vides that: no “If sufficient cause is to the why judgment pronounced, thereupon should not be pro- must rendered.” In accordance therewith the court petitioner, nounced sentence with the material which, parts introductory of the court’s remarks, is as follows: my purpose : Mr. Davidson,
“The Court it is not at this time preach any you largely speaks lecture sermon. The record passing for itself. The of sentence in criminal actions has being punishment different elements connected it,, one hope humanity actual offense committed, other by incarcerating people guilty they may who are of crime ways your see of their errors and reform. From record it your appear previous would the prison confinements you have effected that. . The crime of were convicted on 7th. was one which is most abhorrent to society, young girl, right an attack who has the to be enjoyment in her secure of life. And the fact explanation were-picked you why you had no reasonable midnight night up approximately on the of the crime, that explanation you condition that some to be were in such had you had none to and that the offeT, scientific testi- made, and beyond any mony you shows reasonable doubt that in the case your past it; in view record, were view of that nothing accept there is me to do but to the recom- crime, impose mendation of the state’s the sentence I am impose. going to *7 you, be,
“And it Davidson, is the sentence that Ivan Wilford penitentiary, Bismarck, Dakota, confined to the at North state your natural life.” labor, at for the balance of hard judgment provides that: 1943, 29-2623 “When See NDRC upon the clerk must enter the same the conviction is rendered the record .” In accordance therewith minutes. . . following upon minutes: the clerk entered the shows that you, Davidson, “It of this court that Ivan Wilford penitentiary, Dakota, Bismarck, confined to the state at North be copy purported, for life.” After that written denominated signed “sentence” was as follows: day of A.D. the State’s 1948, 16th. on this
“Now, Attorney Dakota, North Cass, for the State of come court, Ivaii Wilford Davidson into defendant, day pronouncing being fixed the court for this defendant, named, conviction of the above or more felonies to his convic- of conviction three crime charged degree 1948, in the first as 7, on Jan. tion against defendant, heretofore filed information being informed court; and defendant “guilty” the- the information and of his nature of any legal being asked whether or not he has cause verdict, against why judgment pronounced him, should not be to show being adjudge, the sentence shown, court does and none you, imprisoned be Davidson, Ivan Wilford of the court is Penitentiary, the term' state, in said Bismarck, .for imprisonment commencing o’clock, at twelve at hard labor life day, you the sen- committed until of this and that stand noon, discharged by process complied due of law. until with or tence By court,
Judge Pallock,
John C. Hanson, L. Theo
Attest:
Clerk.” process No delivered to the warden. That is the appeal writ- claims that because this taken. The being copy, recites “This ten denominated “Sentence” day pronouncing for fixed above named of crime of convic- conviction of defendant prior to tion of three or more felonies his conviction the first in the information Jan. passed heretofore .” the on a filed, . non-existent crime That instrument, however, and void. is not the sentence in the instant case. procedure sentencing provided by under our laws is
Sections 29-2601 to 29-2615 NDBC inclusive. Under Sec pronounced open orally 29-2615 sentence is court. There is provision way passing no other sentence. The clerk upon the must enter the same minutes. 29-2623. Sec To execute *8 judgment copy entry said a certified the minutes is executing furnished the officer, 29-2701, See and delivered to the judgment penitentiary, warden if proceedings to the is Sec 29-2705. The provide
under these sections the method of the sentencing judgment. and of the execution of the The oral pronounced, judgment sentence 29-2615, Sec is the the court prevails any change copy. over made in written .the Perry, This so held. In re ND 132, 70 297 the 599, NW pronounced days trial court a sentence fine of a and 60 $50.00 jail. judgment signed In the written thereafter the court following provision “Upon pay the added: was failure to you day County jail fine shall serve an additional in said Stark (cid:127) every unpaid.” remaining of said $2.00 This court fine judgment ¡pronounced orally held: “That the and not the writ- judgment subsequently ten entered the court fixes the sen- punishment judgment tence.” The inserted in the written non-payment applies of the fine held copy was void. That to the addi- language tional used in the of sentence in the case at bar. orally pronounced As before stated the sentence and hereto- 150 It does not quoted in the case bar.
fore passed. It many it which was the crime name words so question what was arises terms thereof. fixes otherwise imposed. That to be determined it has was crime for which proceedings. record the whole from judgment, en any its is construed other sentence, “A as to tirety according and so of construction the usual canons sentencing 24 court.” Con give CJS the intent effect to . p v. 114 See Fredericks also Sentence, 1585, Sec struction Appeals, 966; 8 Fed2d District, Fifth Snook, Circuit Court 672, 80 Fla 86 v. So State, Hambrick 961, Pac al, 235, 135 et 166 Cal v. Lawson In Watson any language un is in held: “Where the may properly to the circumstances sur refer certain the court rounding the cause thereof and to condition of rendition regard it the law entered, consider- been which has People parties.” regulating rights ex rel See also Casey v. 723; Ill 177 NE Hill, Warden, 103, v. 345 Sammons People App 165; Barnnovich, v. 16 Cal State, 317, 19 Ala 97 So App Bishop Procedure, 1 New Criminal Sec 427, 572; 117 Pac p 823. 1348, Sup U.
In the case of Pointer v. US Ct S. objection judgment did made because the final L Ed an passed. name the crime for which sentence was court said: specific objection
“The is that it does not state guilty, which the defendant was offense of found objection the defendant crime. This named record technical, rather substantial. . affirmatively- While tha-nv of a criminal case state what will show must good, steps, offense, without which the cannot parts interpret- itself, and the sentence ‘all the record are to be *9 together, given possible, deficiency being ed if a all, effect and ” place may supplied appears by at one be what in another.’ See v. 92 Iowa 61 also State NW Cook, parte Gibson, In Ex 31 Cal 91 Am Dec process corpus ground for a asked writ of habeas on the held under which he was defective the. matter was of void, required the law, The process therefore
151 attorney general warden was held void bnt then held presented transcript proceedings judg a of final claimed-petitioner under which he ment rendered judgment you, That was: “That P. held. William should be taken the sheriff Calaveras to the state Gibson, prison California, and there be confined of the State for the your years period the date from conviction.” The ten ob jection judgment was that it raised to did not state the omission, of which he was in view of that convicted; offense legal void, therefore, it claimed that it was was furnished no prisoner. objection warrant for detention of This was founded the terms of Sec of the California Criminal (See Deering’s Code) Act, Practice Penal which re quire entering judgment a clerk, in conviction, “To state briefly the offense for which the conviction has been had.” That provisiones embodied in our verbatim Sec. 29-2623-NDRC1943. requirements The court set forth some of the that should, ac cording judgment, to law be stated but said: ought regularly properly appear
“But while all this entry judgment it not does follow that the omission judgment of them will them, some render the er- judgment, much roneous, less void. . Whether . . then, absolutely merely question jurisdiction. or not void is jurisdiction appears subject If it that the had court mat- ter of the defendant . may void, be, however unless it is so erroneous uncertain ground. question void
in its terms as to be But no latter character is made in this case.”
Indefiniteness of the terms of the sentence is not raised in the any question Neither case at bar. is there that trial had crime of in the first just degree which the had been convicted and which pending before for sentence. The trial court acted fully power. given within A life sentence could be for either in the first under the habitual criminal act. n supra, parte finally court in Ex Gibson, said: “The may stating definitely this case be erroneous in not more prisoner offense of which the I convicted, but am satisfied My process is, it is not void. conclusion that the now in the *10 152 prison justify
hands of the warden state is sufficient to prisoner expiration years' the the the detention of until of the ten sentenced.” for which he was Haynes, Convey 230 298 647,
In the case
v.
Iowa
NW
corpus
sought
ground
a
on the
that
court,
writ of habeas
was
the
receiving
guilty
after
a
of murder,
had failed to ascer
by
pro
of murder
tain
examination Witnesses
as
provides:
vided
12913
Iowa
Code, 1939,
Sec
“The court
of witnesses,
examination
must,
determine
degree,
pass
and .
. must enter
sentence ac
cordingly.”
jurisdiction
The court held that there
was
in
jurisdiction
district
in
court; that
that
not lost
error
procedure
rendered could
be reviewed
Corpusproceeding.
in a habeas
To the same effect is McCormick
v.
215Iowa
In the Kunkel, Warden, case of Goodman v. Circuit Court Appeals, Rep Fed Circuit, Seventh 2d 72 sought corpus discharge a writ of habeas to obtain his from charging prison. had state He been convicted an indictment feloniously breaking entering him dwelling 1 in Count into and a night-time goods intent to steal and chat feloniously stealing goods tels, in Count of and' etc., chattels, having and in Count 3 with convicted, been sentenced im prisoned penal setting three institutions times and out jury record him convictions. The found burglary count and “that the defendant is an habitual criminal.” The to burglary failed him under his conviction but rendered life sentence under the habitual criminal act. (Burns’ 1926) provid That act, Sec 2340 of the Indiana Statute jury, ed that: “If the trial their find these to verdict, facts felony, true, and convict such defendant of the third imprisonment passing specific trial court, after (Italics ours) prescribed by term. proceed statute, shall imprisonment to sentence the defendant for his or her life.” It Was contended finding
Count 3 void; him to be an habitual criminal only was not conviction under Count wherein the former con alleged victions were and “that the sentence of. the court fails follow the it statute, did not senténce alleged specific T; that, therefore, crime Count court was power impose the sentence which without *11 impose and the and sentence are void. .” did The habitual criminal statute did not court held the create a new independent finding prisoner and that crime to be comply requirements habitual criminal” did not with the “an It the Indiana Statute. also found that the Criminal court failed supra, comply passing statutory with in to Sec. not burglary imposed conviction, sentence on a “but the sole sentence imprisonment specific life sentence which offense of —a appellant carry.” which the was sentenced not does But the citing many irregularities Indiana held, cases, court that these only for were the basis a collateral attack on the grounds granting corpus. for writ not a of habeas And the court deprived jurisdiction by trial held the court was not such irregularities. irregularities be noticed that
It will case the above sentencing trial court were similar to those in the case separate- at In bar. both cases the trial courts failed to sentence distinctly ly upon principal required. as the statute crime only passed. cases one both sentence was In both cases the irregularly passed sentence was in connection with the habitual criminal act. petitioner parte (SD) on the
The relies case of Ex Watt, upon petition 44 119. That also a NW2d for writ of habeas corpus. distinguish facts, however, that case from the one petitioner In that at bar. case the had been under the larceny, grand 1 information Count with and in 2 Count with burglary degree. pleaded guilty in the third He to both counts. charging being a Then second information was him with filed alleging criminal and an habitual his convictions of four guilty. to which informationhe'entered There- felonies, imprisoned him on 1 to sentenced Count penitentiary years years, state for five and on ten Count for separately, “upon that he him, after sentenced information imprison- charging being habitual criminal life an to ment.” passed upon the parte the trial court
In Ex Watt alleged in 1 and Count offenses the substantive providing pun the statute information Count particular The court his crimes. exhausted those ishment pass jurisdiction for those further sentence power time under these sentences. .served- crimes. attempted pass petitioner, third sentence The court punishment augment he had for -which crimes not to' being, already “an habitual but for the crime of sentenced, been n being held the sentence There no such crime criminal.” beyond passed attemptéd it was -the to be regard The facts the sentenc court and void. of the trial holding point. ing are the case different so bar they appear Considering from the record circumstances as *12 transcript hearing, -light in the of'these filed the .the on files trial court in the case it is clear that the instant authorities, prosecution peti jurisdiction and conviction the the of had jurisdiction rape; the that he had tioner crime proceedings act; the criminal -that the in filed under habitual only prior that act "the six filed under set .out not formation application of for the the habitual also, convictions but as a basis degree rape act, the in the first linked it to conviction passed had but of which the court which no sentence been on duly arraigned jurisdiction; that the still had rights his information and admitted informed of pending charges then before the court therein; that there was the rape degree 'petitioner the on the conviction first prior passed had six convic no sentence been 'and record of attorneys prior for both the defend tions to sentence the' ;-thát court in which addresses both ant and the state addressed the petitioner’s of the crime of the of them referred to rape; pronouncing as the oral the trial court in sentence "that “In crime of and said set forth the heretofore stressed past (the rape) your crime” record and in view this view impose. impose these going he All did .was the trial court-was that the intention of circumstances indicate rape taking impose considera the crime of into -asentence for
:155 determining length sen tion convictions tence. interpretation adopted will not be which is
“An inconsistent jurisdiction. construing portion with the court’s judgment, ordinary language while it be taken in of a should its legal meaning it must be considered connection with con- its judgment whole, text as a circumstances sur- rounding making of conditions of the —the Judgments, which it rendered.” cause in Freeman Vol p 133. Par presumption indulged “Every support judg- must be juris- the abuse discretion ment. Error or in the exercise of jurisdiction.” People does not constitute the diction want of Supp 274, v. 135NY Kaiser, susceptible interpretations
“Whenever is of two power judge one of which is within the other not, preferred.” Copley must first v. William Robertson, Rep Trustee, La La Ann 181.
Applying foregoing rules of construction to the facts interpretation case clear that the seems that should be given imposed that it was a sentence for augmented pro- crime of in the first under the visions of the habitual criminal act. The sentence was within the power Any of the trial court. It is not void. irregularities procedure are not con- matters can be petition corpus. sidered on for habeas *13 application corpus hereby a writ for of habeas denied. J., concurs. Sathre, opinion prepared I by Judge
Morris, Ch. J. concur in emphasize and Crimson would the correctness of the result my original, proceeding these observations of own. This is an supreme petition in the of Ivan Davidson for corpus. petition imprisoned writ of habeas shows that Penitentiary County, Burleigh in at State North Bismarck, appears application It also Dakota. that he made for of a writ corpus Burleigh County, habeas to the District of Court February application challenges denied 19,1951. was on He legality grounds of his duress that the imprisoned under which he is is void. The record discloses that on December 22, 1947, an informa- Attorney County, -filed tion was State’s petitioner of Cass North charging committing Dakota, the crime of degree. jury in the first He was tried before a and found January day January, 7, 1948, on 1948. On the 16th of having pronounced upon no sentence been the defendant for his rape, Attorney County conviction of the State’s of Cass filed following the district court the information: Attorney County “The State’s for the of Cass in the State committing of North Dakota accuses Ivan Wilford Davidson of prior the crime of Conviction of three or more felonies to his Rape Degree January conviction of in the First 7, charges day that .to-wit: on the 7th heretofore, of of Cass and State of North Dakota, the said-de- duly Rape fendant was of convicted the crime the First prior Degree; duly that the said Defendant thereto, was convict- day ed on County, 21st 1944 in June the District Court Cass Burglary North Dakota of the crime of third Penitentiary and was to the State .sentenced at Bismarck years; prior for terma of from three to five thereto and day on or about the 25th October the said Defendant duly Burglary convicted the crime of the District Court County, Griggs North Dakota, was sentenced State Penitentiary years; prior at Bismarck a term ten day thereto on or about the 25th of October, 1939, the said duly larceny grand Defendant was convicted of the crime duly Penitentiary sentenced to the State at Bismarck for a years, concurrently prior of three term to run with the imposed prior day on the date; same thereto and on the 20th duly June, 1935, the said Defendant was convicted in Wolf burglary duly Point, Montana of the crime of and was sentenced Penitentiary Lodge, to the State Deer term Montana years; day five thereto and on or about the 21st April duly said defendant was convicted the District County, burglary Court of Foster North Dakota of the crime of *14 duly degree to the Peniten- sentenced State and was in the third years; tiary five term three to Bismarck for a at day 6th was on about the June, defendant or thereto Burglary duly in the third of the crime of convicted Griggs County, North and in the District Court Dakota Penitentiary duly at to a term in State Bismarck sentenced Dignity year. against the This Peace of the of one and State contrary to and the form of the in of North Statutes Dakota, provided.” and such case made Attorney filing then advised the State’s he was court provisions
the information of Section 12-0623 E.CND important provides: 1943,which insofar as here any judgment “If at time before at or sentence, time after sentence but before such fully, appear sentence is it shall executed that one convicted of felony, previously has been forth convicted crimes set as 12-0619, sections 12-0618, 12-0620, and the state’s 12-0621, county which such conviction had shall file an information with the court in which such conviction was accusing person previous had such convictions. person, prison
shall cause the whether confined otherwise, .or brought to be before and shall inform him of the accusations by reading contained in the it to information him, and his right according to be tried as to the truth law, thereof require say shall such whether has been convicted charged as say information or If he shall not. that he has charged, not been convicted as therein or refuses answer, or silent, remains his or fact of his silence shall entered of record directing court shall make an order that truth of the made in accusations said information be submitted jury present to a at the then term if court, in term time and jury in attendance, unless continued cause, ensuing jury next term of court when a is in attendance. If jury beyond find shall and determine evidence a reason- able doubt that the accused has been convicted one or more times in said acknowledges information, or if the accused open being duly confesses after court, cautioned as to rights, that he has been convicted, so the court shall sentence *15 provided imprisonment penalty punishment
him the to shall 12-0620, 12-0621,, and 12-0619, 12-0618, in sections if one had been en- previous and sentence any vacate imposed.” tered quotation pro- preceding in the referred to 12-0621
Section felony committing after within this state “A vides: more either having times, three or of felonies been convicted may any States, be the United other state this or in state peti- penitentiary.” imprisonment The punished life participated attorney represented in a an who tioner was Attorney. The court the State’s the court and discussion arraign Attorney'if the to he wanted defend- asked State’s reply: I like to “Yes, would make ant and received^this passing sentence on the arraignment time, at this arraigned. charge.” The ad- was then court charges right to have the to a trial and he had a vised plead proved or he could state, in the information made you “I inform that if guilty. also The court further stated: penalty imposed proved charges can be can are these you penalty greater crime for which under the than be no anuary year.” county this on the 7th of J of this were convicted that if defendant counsel then asked Petitioner’s plead guilty he be act, could later sen- to the habitual degree? charge the first to the tenced charges that are made here' is '“If he admits these said: precludes upon information, that sentence sentenced provided degree rape, that the court has the conviction for first proceeding proper and that of this prescribed imposed law; words, other within the is limits if he admits rather than this, it, sentenced now is simply rape charge, him that the maximum I informed but plead penalty then either the same.” guilty. petitioner’s listening counsel
After to recommendations peti- Attorney, addressed himself to court- State’s pertinent portion in this: of what court said tioner. The “iphe anuary you 7th crime of' which were convicted on J society testi- scientific . one which is most abhorrent beyond you mony reasonable doubt that in the case shows your past it; record, view of in view of were nothing to'accept for me to but there do recom- crime, impose of the states the sentence mendation going impose. I am you,
“And it is Ivan Wilford Davidson, penitentiary, Bismarck, confined to the state North Dakota, *16 your labor, at hard for the balance of natural life.” This is the pronounced the court. sentence following signed by written sentence was later the court
and attested the clerk: day “Now, 16th on this A.D. 1948, At- States torney in and for the Cass, State North Dakota, the Defendant, Ivan Wilford Davidson come into Court, day being this fixed pronouncing Court for the Judgment upon the Defendant, above named, of. the crime of Conviction of three or more felonies to his Rape Degree conviction of in the First on Jan. 7,1948, as against in the Information heretofore" filed Defendant, being court; this and the defendant informed the Court of the ‘guilty’ nature of the Information and of his being verdict, legal asked whether not has cause why judgment pronounced against to show should not be him, being adjudge, and none does shown, Court and the sentence you, of the Court is that imprisoned Ivan Wilford Davidson be Penitentiary at Bismarck, in said for the State, term of imprisonment commencing life at hard labor at twelve o’clock, you day, of noon, and that stand committed until thrnsen- complied discharged by process tence with or until due law.”
Chapter provides judgment 29-26 RCND 1943 and pronounced orally by in The' actions. judge judgment contemplates is the of the court and the statute judgment ultimately part that the written that is filed and made a copy pronounced court records is of the oral by the court. In event of conflict between oral written
160
Perry,
prevails.
This is upon appeal. court has said: This review ‘upon corpus in this state habeas rule “It the settled inquire ordinarily no further than to ascertain whether will prisoner issuing process on which the or officer jurisdiction within case, and acted had detained jurisdiction irregu issuing process. Mere errors or . question jurisdiction, affecting procedure, larities of corpus; process and where the on habeas are never reviewable inquiry go only is.regular its will face, and valid Styles jurisdiction.’ question ex rel State v. Beaverstad, jurisdictional inquiry, 548. ‘The how 12 ND 97 NW power magistrate of the court or to make extend to ever, will to make the or order Jurisdiction the commitment. subject and of the as is is essential Floyd, p. also State v. ND matter.’ Ibid. See Corpus, 2nd ed. 305. The rea 662; Church, Habeas Section NW *17 corpus judgment the attack on on habeas is that is col son ‘particular well that if settled, however, The rule is lateral. question’ authority, in entered without habeas Solberg, corpus 52 ND will lie.” Re 898. NW question but that the court had There is no subject petitioner and of matter. The pronounced judgment imprisonment of life and sentence court question upon petitioner. The is whether or not he had sole pronounce jurisdiction to and sentence. under which the second information was filed, The statute contemplates adjudications. 12-0623 two Section ECND felony. adjudication guilt that of a new The first adjudication having previously been convicted is the second adjudication first is that three cr more felonies. The adjudication guilt, con- the second is a status or may impose upon of which the court the establishment dition prescribed greater punishment law for the new than that offense. rape degree petitioner was convicted of the first imprisonment. to life he could been sentenced Be-
which have upon he he conviction, was sentenced fore having previously been information convicted second duly named felonies. After he was cautioned as of six to his open petitioner acknowledged rights, or confessed court Upon the former convictions. his under the second subject imprisonment he also to life information, was under the provisions of 21-0621 Section BOND At conclusion arraignment upon petitioner the second information, rape before the convicted the crime of stood the first upon pronounced, been no had his prior been confession, own had of six convicted felonies. Thus squarely provisions he came within the of Section 12-0623. Upon imprisonment the court this record sentenced him to life clearly jurisdiction, power, authority which it had to do. support of the contention that the was sentenced for the nonexistent “crime of three Conviction or more felonies Bape Degree to his conviction of the First petitioner points to the statement 7,1948,” made upon counsel that if he was sentenced the second informa- precludes “that tion degree rape, the conviction for first if he it, . admits rather than charge, simply penalty but I informed that the maximum clearly pointed either is the same.” The court out proceedings if the was sentenced in then before he charge. court, could not later be sentenced This, fairly implies that the court had in mind that the sentence impose punishment which would was a sentence and for the rape, punishment as well the additional that could be meted out reason of his conviction of former felonies. This is borne *18 immediately prior the fact court, out that the statement his petitioner sentence, included crime for which the was con- past January 7, as well victed-on as his At record. the most, pronounced the manner in which the court apparent sentence was erroneous. Such defects as are from this pronounce record are to the not fatal court’s a They petitioner. imprisonment life, there- (cid:127)sentence corpus ground issuance of a writ habeas no fore afford petitioner that the is unlaw- this determination (cid:127) fully imprisoned. ' < (cid:127) (dissenting). was convicted The J. Burke, rape crime of in the first of Cass District Court degree. the' criminal docket and number 8007 of The was case entry clerk court in ease, minute last .jury the return of the into court 1948, notes the date Jan. guilty. awith verdict an under the information, filed
Thereafter the state’s with the statute, habitual criminal prior three or more felonies to his con- of' conviction of “crime degree.” filing information of this in the first viction a institution of new criminal action which 'treated as the Concerning the criminal number 8011of docket.' entered as court, minutes of the clerk of under date of Janu- case the this ary 16, 1948, show: brought on action is before the court at above entitled
“The Attorney, time criminal information filed State’s this charging Ralph with the crime of the defendant con- Croal, F. three or more felonies to his conviction of viction 7, 1948. first custody appeared in court in the “The defendant Sheriff .ofthe. Lyle Huseby. by Atty. represented E. and was copy handed the defendant a “Mr. Croal infor- arraignment he read the information and moved the mation, of the defendant.
“The informed the court that his true name defendant was Ivan ‘guilty’ Davidson and he entered now sentenced follows: “ you, Court, ‘It the sentence of this Ivan Wilford Penitentiary, he confined to the Davidson State Bismarck, ” for life.’ North Dakota transcript arraignment of the record made following: shows the *19 represented you Davidson, Mr. are
“The Court: here Mr. Huseby your charge, in view counsel. But of the nature of the you going separate inform the effect this I am new and you charge from the one on which were convicted on 7th of right, January; you you if have wish to stand it, trial you charge, these, charges I inform on this also that if ... proved penalty imposed greater are which can be can be no you county ‘than under crime which were convicted this January year. 7th of this Huseby: couple ques- Tour I think honor, “Mr. there are a ‘ you úp can tions answer which' can clear a number of problems plead for the all, defendant. First of if the defendant ’ guilty to the habitual act, sentence, there —could charge degree rape. be a later sentence on the of first ... jurisdiction proceed-
“The if Court: Not the court has of this ing imposed penalty provisions is within the statute. Huseby: quite
“Mr. I don’t understand. charges “The Court: If he admits these that are made here upon precludes and is sentenced information, a sen- degree rape, provided tence first proper proceeding has of this and that the sentence imposed prescribed by within limits law. In other words, he is sentenced now this, if he it, admits rather than charge.” thereupon pleaded guilty The defendant to the information pronounced filed case number 8011 and the Court sentence. pronouncing sentence the Court said: passing “The criminal actions has different being punishment elements connected with it, one the actual hope offense humanity committed, other the in- carcerating people they may who are of crime see the ways your error of their and reform. From record it would appear your previous confinements have not effected that. you . crime of which were convicted on -7th to,society; one the most abhorrent in view of ... your past and in view nothing record, of that crime there is accept for me to but to do recommendation the state’s (cid:127)164 impose.” going impose I am the sentence imprisonment. *20 petitioner to life thereupon sentenced
Court writing thereafter reduced to judgment of the court The judge. It is as follows: signed trial and day D. the State’s A. 16th of on this “Now, North Attorney Dakota, State of Cass, of in and come into and court, Davidson Ivan Wilford defendant, and pronouncing day of being fixed the court for this upon defendant,' of the above judgment named, conviction prior to his three or more felonies of conviction crime 7, 1948, first in the on Jan. conviction against defendant, in filed said heretofore information in the being informed court the defendant court; and plea ‘guilty’ and and of his of the information nature any legal being or not he has cause whether asked and verdict, against pronounced why him, not be should to show adjudge, being the court the sentence shown, does none imprisoned you, Davidson be that Ivan Wilford is Penitentiary, the term of Bismarck, state, at commencing imprisonment o’clock, at twelve hard labor life you day, until the sen- stand committed of this noon, discharged process complied due until of law. with or tence be By the court, Judge Pollock, John C. Attest: Planson, L.
Theo.
Clerk.” Penitentiary upon confined in State is now peti- judgment. pursuant He to this has issued a commitment imprisoned corpus, alleging habeas for a writ of tioned charge not constitute a upon a which does to a’ allegation question an but that such no There is crime. upon inquired may into a writ of habeas illegal restraint corpus “the in- corpus. writ of-habeas a It is true jurisdictional matters. vestigation to confined must be power inquiry, to the jurisdictional will extend however, to magistrate Jurisdiction make .the commitment. to jurisdiction order as essential as is make subject matter.” State v. 12 ND Beaverstad, jurisdiction try a court 532,97 548.That has no an NW accused charge wbicb an information does an offense such an information is void for propositions. want of are well settled 457; CJS Rep 174; Am Anno: 57 ALR 100Am 85; Jur St supra, page The editor of the annotation in ALR states at 87: “The rationale of this doctrine is that in .criminal cases the jurisdiction of the court extends to such matters as the law has criminal, other; declared and none and when court undertakes punish criminality for an no offense which how- attaches, reprehensible may ever such offense be in the forum of con- beyond jurisdiction. science, court acts its indictment,- An *21 groundwork very or written accusation is the information, superstructure prosecution whole of a for the commission of allegations an offense. If an such information contains of overt acts or conduct which does not constitute crime known to the law, or undertakes to state an offense, but the stated facts do not constitute the offense, no addition to them however full complete, supply can what is the essential, court is without put to the accused on trial. In such a case the judgment is-simply of conviction cannot be It corrected. void. Imprisonment illegal, thereunder accused entitled corpus proceeding, though to his release in habeas even he might upon appeal.” secure the same relief ' questions It is clear therefore that this case there are two upon charge judgment to be First, decided. what of con- pronounced against petitioner? viction the does the Second, upon charge, pronounced, which such constitute a criminal offense under the laws of this state? beyond any question
I As view the case, record it shows, pronounced against peti- that of conviction was the upon tioner an information which him with the “crime of of conviction three or more felonies to his conviction of degree”, upon the first that information alone. The of minutes the clerk of court show that such information ’ was filed and considered institute to case number 8011 of the They the that the state’s moved show docket. peti- that that information, arraignment the xcetitioner charge he pleaded guilty therein stated and that the
tioner upon of the clerk show that The minutes also it. was sentenced charge number in case of the court action the last jury. reception the verdict of written was the raxoe, unequivocally, judge, signed judgment, that the states petitioner was the “crime of was sentenced for which crime three, prior to felonies his conviction more rmpe degree.” first proceedings transcript ar- Furthermore, uxoon upon
raignment information shows that such “new that this was a informed the the court separate charge” charges he and that “if admits these and is precludes upon that a sentence information, tSiis sentenced of first the conviction raxoe.” n majority however, a construction of this court, judge language has been able reach con- used trial judge, pronouncing orally, did the trial clusion something entirely clearly from what he he different had stated writing proposed thereafter stated in from what he do, the minutes of the clerk of court and from what done, had language They say used he did. show permits was sentenced a conclusion x^etitioner being charge charge well an habitual as raxce criminal. *22 my will not such a construc- the oral sentence bear oxoinion judge’s language it consistent As I construe the trial
tion. proposed he thereafter do, he said he with what what with and with the minutes of the clerk show he had done what any with conclusion that at the he It is also inconsistent did. petitioner tinie sentenced the crime “conviction he for conviction of three or more felonies upon degree,” he first also sentenced raxoe degree. that he mentioned that crime in the first passing It is true clear that he did for the .sole but it is so sentence, petitioner unregenerate purpose showing an that the your past said, he “in record when view of criminal and that
167 merely stating crime” he was view of matters purpose determining into toot consideration for the impose upon of the he would duration guilty to the information in case 8011 which all the records only was the matter show before court at the timé. apparent It is the' face this record that both the attorney judge state’s and the trial considered that the informa- filed tion under the habitual statute newa judge petitioner crime and that the trial alleged sentenced the for that crime. for the defendant and the defend- proceedings judge ant, so likewise, understood the for the trial assured them that such was their nature. charge
Did
information
a crime"? The habitual criminal
(Chapter
1927)
statute
ND
126, Laws of
not
does’
create a new
“provides
punishment
crime.
It
increased
added
for a
person
felony
who is
convicted of a
this state where, before
felony,
the commission of such
such
has been convicted
two or more
times
felonies either in this state or in
other
Ryan Nygaard,
state
United States.”
v.
Since of conviction pronounced charge did crime, was void. corpus The writ of habeas should but issue, since has never been sentenced his conviction of in the first Penitentiary Warden State should directed custody to release Sheriff Cass conformity with law. (dissenting). agree I am J. unable to Christianson, expressed majority reached mem- views conclusion *23 opinions prepared Judge by in bers of court Crimson this generally agree views with the by I Morris. Justice Chief Judge opinion prepared by dissenting Burke expressed in the by to add some desire reached the conclusion but my own. observations of corpus alleged that petition it is writ of habeas for a
In the liberty “imprisoned of his restrained Davidson is Ivan penitentiary respondent in Bis- at the state named above pretense confinement of such That the cause marck, N. Dak. or a sen- held from Davidson is that the said Ivan or restraint is Judge ‘crime tence at Cass Rape prior or more to his conviction of three felonies imprison- Degree That 7,1948.’ First on . . . illegal of three or ‘crime of conviction ment is there is no Rape’ common either at more felonies to his conviction of law or statute.” provides: 1943,32-2211
NDRC person upon in his writ must state “The whom the is served plainly unequivocally: not he has or has 1. Whether return, custody power restraint; party or 2.- If or under his his power party custody his restraint he has the or or under imprisonment authority and cause of such must state any party restraint; writ, If war- 3. is detained virtue copy written'authority, must be annexed rant, or other thereof original produced the return and the and exhibited to hearing return; on the of such . . provides: 1943, 32-2217
NDRC party appears the writ that the is the return of. “If it process any custody by state, from court of virtue of may discharged person any judge thereof, such be or officer following subject section to the restrictions of cases, process matter defective in some 3. 32-2202: . When . . rendering process required by void; law such of substance though regular process, in a has been issued form, When law; not allowed case 32-2202 reads as follows:
NDRC Sec application person is made in whose behalf “The imprisonment writ or restraint under a relief entitled to from may corpus, during which if the time such of habeas *24 expired, appears: legally custody in whenever lias not detained by custody process by of issued detained in virtue 1. That is any judge of the United in a case where such court or States pro- jurisdiction; Except judge or has exclusive 2. as court or custody by that he in virtue vided in section is detained 32-2217, judgment any competent of of the order or final of any process judg- or or of issued such order ment.” conformity requirements re- with the of the statute the
spondent, Penitentiary, warden of the a return State where- filed alleged in his in he that “he has the Ivan Davidson said Wilf ord custody by judgment and control virtue and commitment of a of the Cass, issued out District Court in for the day of North the 16th 1948.” There State Dakota on part copy attached the is return and made thereof of the judgment opinions prepared by or sentence set forth in the Judge dissenting- Grimson Chief Justice Morris and opinion prepared by Judge Burke. Such states being day pronouncing “this fixed for the the.Court Judgment upon of the Defendant, named, conviction above the crime of Conviction of three or more felonies Rape Degree in the First 7, 1948, on Jan. against Information heretofore filed Defend- said adjudge, ant, court; . . Court does and the sen- . you, impris- tence of the Court is that Ivan ordWilf Davidson be Penitentiary oned Bismarck, for the term State, . n of life .” duty
The laws of this state make it the .of the clerk of the “keep district court to a minute which shall book contain daily proceedings signed which the district court and shall be clerk,” (10). 11-1701 NDRC provide: further
The laws of this state any court in which criminal action “The clerk of the district pending proceeding or tried shall in the enter, minutes or open ruling the court made in or decision of court, such each reporter. ruling A cer- the official if is not noted court, such part copy or all such entries shall be become a tified of said action.” NDRC 29-2307. record clerk must a conviction rendered, “When stating briefly the offense for minutes, the same enter may had, and, be, as soon as must conviction has been papers following together which constitute a and file annex information indictment and all the action: 1. record of together copy papers with a of minutes action, filed copy plea; 3. The written trial; A the minutes any, charges given if endorsements, thereon, refused, *25 copy given court, the and the written instructions clerk; filed with the of instructions oral judgment.” copy the NDRC 29-2623. 1943, 4. A only judgment imposing penalty fine than a a other a “When copy pronounced, judgment of a certified or a death has been entry must forthwith the minutes the thereof furnished duty judgment, and to the whose it is to execute the no officer authority necessary require justify or warrant other 1943,29-2701. its execution.” NDRC imprisonment penitentiary, the is for in the the “If receipt copy county, upon of a certified thereof, the sheriff .of peni- the take and deliver the defendant to the warden of must tentiary.. proper to the warden or other He also must deliver copy judgment and take from ward- officera certified of the such receipt proper a for the and make defendant, en or other officer the NDRC 29-2705. 1943, return court.” thereof hearing proceeding this, Upon was court there sub- mitted, copies clerk in two certified minutes of against petitioner. proceedings Such mfimites actions or petitioner against a criminal show thát information filed rape charging him with in the 22, 1947, first on December guilty degree, of not entered case a jury January trial and that a ver- 6, 1948, came on for on degree-was on dict ary first returned Janu- in .the ' entry last made the minutes 7, 1948. concerning January the return the verdict on this action is according to the was criminal This action minutes register of criminal actions. action on number January that on 16, 1948, of the clerk show minutes further informa- filed is denominated state’s what a.criminal
:171 charging the “crime tion to his conviction of first felonies more three or opinion prepared dissenting January In the 7,1948.” Judge forth in full the minutes the clerk there is set Burke part latter of the record in this made a action, entered and as any part reproduce of the minutes so set forth I shall not Judge opinion. proceeding The action or in- in his so Burke 1948, was treated a new criminal stituted on register as case number 8011 action and was entered the minutes of the actions. It will be noted that clerk of criminal proceeding 8011—the action or refer alone to case number They all habitual criminal statute. are entered such was made the minutes of the clerk to action and no reference 8007; According any proceedings or had in case number action wer¿ proceedings that were had and taken minutes all to such taken in said action number action under had and criminal statute. There also submitted habitual reporter’s transcript hearing duly copy of certified the -court proceedings against in the action had January 16, 1948. Reference is made to *26 Davidson on proceedings these transcript parts proceedings of and the are opinion by prepared Judge dissenting forth in the Burke. set proceedings opinions .pre- Reference to the made in the also pared by Judge Grimson and Chief Justice Morris.' parties' beyond entire record doubt the and establishes pending proceeding the .as. an inde- the considered then pendent criminal wherein the action defendant was with separate” “crime of crime, new conviction of three “a —the prior rape to his conviction of the first or more felonies degree January court, 1948.” the trial as shown fact, on quoted by Judge portion proceedings Burke, the so may “you plea at this he enter a stated and furthermore stated charges guilty guilty each one of these time of either or not to ’ made in the information.” as transcript proceedings reporter’s had the on The court pre^ January had after the state’s 16, 1948, shows that committing charging sented information crime of conviction of to “the more felonies three degree January in the first on 7, 1948,” information had been handed to the after the defendant and'read attorney, peti- state’s court made a statement to the opinion quoted prepared Judge tioner, Burke, wherein part, you represented “Mr. are Davidson, he said in Huseby here Mr. your counsel. But view of nature charge, going you I am to inform of the effect of this new and charge separate you the one on which were convicted on the from January; you right, you 7th have if wish it, to stand charge, you right charges trial on this have the to have the proved by you may state, made this information enter guilty guilty at this time either or not each one charges these as made in the information. I also inform . you charges proved penalty if these are which can be imposed greater penalty can be no than the under the crime you county were convicted in this 7th of .on’the year.” Thereupon following colloquy place of this took be- tween the Davidson’s court, counsel Davidson: Huseby: couple I Your think honor, there are
“Mr. questions you up can which can answer clear a number of problems plead for the defendant. First if all, the defendant guilty habitual act, the sentence, there —could charge abe later sentence which he has been found rape. of first proceed-
“The Not if the Court: court has of this imposed ing penalty provisions is within the statute. Huseby: quite
“Mr. I don’t understand. charges “The Court: admits these that are made here If precludes and is sentenced this information, that a sentence degree rape, provided the conviction that the court for first proper jurisdiction proceeding *27 has imposed of this and that the sentence prescribed by is within the limits the law; in other n words, he is this, sentenced now he it, admits rather than if rape charge, simply but ! informed that the maxi- penalty mum under either is the same. Huseby: up
“Mr. Mr. Davidson knows all the It facts. is to him to decide plead to he the information. how wants to here? “Defendant: To this
“The Yes. Court: your honor. Yes,
“Defendant: your plea? Q. “The What is Court: guilty. I “Defendant: A. am legal why any reason “The Court: Is there sentence should imposed any legal at this reason? time, not be “Defendant: No.”
Thereupon petitioner’s made wherein a statement counsel competency requested petitioner’s questioned that mental given opportunity examined doc- be to have the psychiatrist Asylum possibly a at the Insane tors State Following the court asked the state’s from out of the State. this attorney whereupon if to make he had recommendation peti- made wherein he state’s a statement recounted peti- He then referred tioner’s criminal'-offenses. record rape charge and that tioner’s claim stated of innocence of the crime no it was his firm belief that he committed and that prior do have said, one else could have. He then “We his say leaving perhaps I out of consideration record—or should brutality of the evidence in the view of record, his prosecution, (if) we had not had this when case, and sentencing I came case would have recom- time for imprisoned that the be mended defendant life.” for say saying, might “I also record He then concluded parole information, violation, shows a which not your parole Therefore, honor, he did a at one but violate time. act, case, is, con- in this habitual criminal my felonies, recommendation, viction three or more it is imprisoned life.” the defendant be recommendation, thereupon referred to-in The court made statement a saying: opinions “And such the other closed statement you, Davidson, Ivan confined it is the sentence Wilford penitentiary, hard Bismarck, North at Dakota, state your life.” for the natural labor, balance a not create in this state does The habitual statute punishment “provides for. or added crime, it for increased new felony state where before who is convicted of *28 174 felony, person snch has been convicted of snch
the commission any either or in of felonies state other or more times two Ryan Nygaard, ND 697, v. 70 state in United States.” 687, Chapter 126; 1927, 1943, NDRC 694; 12-0620, 297 NW Laws That tó be the rule under 12-0621, 12-0623. also seems habitual . p generally 24 Ex 1971, 1173; CJS Sec Parte laws Kuwitzky, Wray, Ex 466, 396; 135 Neb 282 NW Parte 61 Okla Miller, Pac2d 239 1 162, 965; 334, 178; Cr 66 State v. Wis NW2d v. 190 Wis 208 NW Mundon v. State, 245, 897; State, Watson App 220 In re 83 650; Moreno, Wis Ohio NW NE2d 325. pleaded proven,
“A former conviction is not as constitut- ing separate augmenting a distinct offense, but as provided penalty in the statute for the -firstoffense.” Watson v. supra. State, ' Statute, , “Habitual . Criminal does create or define independent crime, but describes hew circumstances wherein specific may severely penal- one crime found be more previous alleged ized because of his conviction, as and found-.” Wray, supra. Parte Ex
In'this case there is no contention that the habitual criminal person may statute of this state creates an offense for which a separately provides only sentenced. It is not denied it punishment person, or added for increased for a who is convict- felony crime where before the ed of a commission of such such felony been convicted of has two or more times either or in other this state state of the United States. How- opinions majority ever, is asserted in the members that for the crime sentenced in the first look, degree, and that the so record shows. Let us at the record. opinions Judge said, Grimson, As Chief Justice Morris, dissenting opinion Judge well as the Burke, set forth the judgment, copy respondent’s 'a of which attached to return: judgment specifically day That states that “on this 16th Attorney A. D. the State’s Cassj of North- State Ivan Dakota, defendant, Wil- being day ford Davidson come court, into and this fixed pronouncing judgment upon the court for the tjie above-named, crime defendant, of conviction.of-three to his conviction more *29 first of felonies information, the 1948, 7; January on heretofore minutes' court; in this defendant, said against filed dissenting opinion Judge are to forth in Burke’s of the clerk set transcript reporter’s nothing There is like effect. arraignment proceedings the of the had at the time .of information filed under the habitual on the the contradicts conflicts or clerk’s act which manner signed by which the or sentence or the minutes ,copy by judge which and a of was fur- clerk, the and attested penitentiary authority for the as his to the warden of nished petitioner. receiving detaining It the NDRC 29-2705. place apparent what was the trial from what took pro- judge did sentence and that he' intended to sentence and alleged judgment against the for the nounce “crime more to his conviction of three or felonies of degree January that the and for alone. 7, 1948,” first on information had read the state’s After the been petitioner: court said to charge, going you I the nature am to inform
“In view of of the effect this separate charge new and the one on from you that have January; which ivere the 7th you convicted on you charge, you right, trial on it, if wish to a this have right proved charges made in this information have you may guilty time either enter a at this State, guilty charges to each of these as made the informa- one deny, you may you deny if In other admit or words, tion. up prove you them it is to the them. I also inform State proved penalty imposed charges can be if these are which greater penalty you crime for be no than the under the can year.” county were convicted in this 7th of this Immediately following following eolloq'uy this statement the petitioner’s place between the counsel and the court: took couple” ques- Huseby: honor, “Mr. Your I think there are a you up can which can clear tions answer a number problems plead for the if defendant all, First of defendant. guilty habitual criminal there be act, sentence,—could charge later on the to which he has been found rape. degree
of first proceed- “The if the Not court has Court: this imposed ing penalty provisions is within the statute. Huseby: quite I
“Mr. didn’t understand. charges “The If he Court: admits these that are made here upon precludes and is sentenced this a sentence information, rape, provided the conviction that the court first proper jurisdiction proceeding has the sentence prescribed imposed within the limits in other law; words, it, he is sentenced now rather this, admits than if rape charge, simply but I informed him that the maxi- penalty *30 mum under either same.” question petitioner’s clearly The counsel shows that he was impression under the that the sentence under discussion was imposed upon charge one that be would made in the informa- accusing tion of conviction of three or more fel- prior rape onies to his conviction on 7, 1948. He desired know to what effect would be if such sentence were imposed, whether there charge “could a later sentence on the guilty degree rape?” which he has to been found of first If as majority judge members hold the intended sentence the upon rape degree, defendant the verdict of in the first simple question there was a and direct answer to the that would presented naturally judge, have itself to-wit: “If the de- charges fendant admits the in information of former convic- prior rape, tion or more three felonies to his conviction I rape will sentence the defendant conviction of now, so naturally rape.” there will be no later sentence for The court peti- did not state even intimate that he would sentence the rape. contrary. tioner for His answer to the He said: charges “If he admits these that are made here and is sentenced upon precludes upon this information, the con- sentence degree rape.” viction other court further “in said,' fdr first words, upon this, is sentenced now it, if he than admits rather rape charge, simply but I max- informed him that the penalty imum under either is the same.” The court doubtless impos- Precludes “to render with care. means his words chose prevent.” action; Punk & ineffectual antecedent sible or English Language. Dictionary Wagnalls New Standard positive. judge trial were clear and Is The statements specific notwithstanding judge state- the trial it believable pronounce intention to ments had a secret degree? rape answer, in the first for the crime of by Judge Burke in well said his dis- I is obvious. As is think, judge’s language senting opinion: trial it I construe the “As proposed with what do, with what he said he is consistent what the he had and with minutes he thereafter said done It inconsistent with conclusion he did. is also the clerk show petitioner for the crime ‘con- he sentenced the the time prior rape to his conviction of three more felonies viction of degree,’ he also sentenced the first degree.” rape the first imposed Immediately at- the state’s before “Leaving part: torney said, to the court his statement brutality in view record, out consideration his (if) had this we had not case, in the of the evidence sentencing prosecution, case when the time came for that the defendant be to the court would have recommended by saying: imprisoned statement for life.” He concluded his your habitual criminal case, under the “Therefore, honor, felonies, more three or act, is, the conviction *31 my the defendant be that recommendation, recommendation, attorney imprisoned clear- said shows life.” the state’s for What imposi- ly was the before the court he the matter considered petitioner the in the case “under the sentence tion of of three for the conviction act, is, habitual criminal that a sentence would that he had no idea felonies,” and more degree. rape pronounced in the first the verdict for be in this done the trial court and of what was said In view seriously wholly it can be to understand how I am at a loss case alleged petitioner for the not sentenced that the was contended for information but was sentenced in the second stated offense rape. the crime of
378 Judge agree “shows, the in this Burke, that record case
I with pro- any question beyond that the of conviction was petitioner upon against the an information which nounced three fel- of conviction of more with the ‘crime degree,’ first in the and to his conviction onies apparent upon And that it “is such information alone.” attorney.and the the record that both state’s the face judge information filed the habit- that the trial considered judge charged new crime that the trial criminal statute .a and ual alleged petitioner crime. the sentenced the defendant, likewise, so understood for the defendant judge proceedings them that their the trial assured such was nature.” Judge judg- agree Burke that
I also upon plea They pronounced guilty a ment are were void. charge or an information which show commission did guilty merely under which one found crime, but stated facts specific may separate criminal action more of a offense be felony. severely penalized previous because of convictions of a Ryan Nygaard, supra; Wray, supra; Ex Parte Ex Parte v. Mahoney, 767; 123 P2d Black v. 9 Wash2d Cress, 7, Wash2d ; Towne, 129 P2d P2d 1028 Re Wash2d part judgment or forth as of. the return of sentence set petitioner authority retaining for- his the warden as custody custody petitioner is that the held shows judgment, void sentence and hence warden under a authority warden. in law for restraint there no 4). petitioner (3, However, is not NDRC 32-2217 time the released. At the was sentenced entitled custody of Cass and incar- of the.Sheriff he jail prosecution county pursuant charge to a cerated verdict that had in the first against being him in that case. He was so held returned been copy pronounced the certified when sheriff and him in delivered sentence and Penitentiary the warden the State when turn delivered to Therefore, the defend- delivered the to the warden. *32 not be released ant should custody but" should be delivered into the thereupon of the Sheriff of Cass the dis- duty perform pro- will and, course, trict court its should, pursuant nounce sentence the verdict that re- against him in turned the criminal case in con- was. degree. procedure provided victed of first Such (NDRC 32-2218) our statutes and has been followed jurisdictions. Mahoney, supra; in other Blake v. In Re Cress, supra; supra. Towne, and Re
[File 7207] No. Respondent, SJOBERG, E. FRANCES v. THE STATE AUTO MOBILE INSURANCE ASSOCIATION, Moines, Des Appellant. Iowa,
(48 452) NW2d