On November 17, 1942, an information containing two counts was filed in the Circuit Court of Lawrence County, South Dakota, charging Donald Eugene Watt with the crime of grand larceny in the first count, and the crime of burglary in the third degree in the second count, to which information the said Donald Eugene Watt entered his plea of guilty to both counts. Immediately thereafter a second information was filed in said court by the state’s attorney charging the said Donald Eugene Watt with being an habitual criminal, and alleging his conviction of four prior felonies, to which information he entered a plea of guilty. Thereupon the court pronounced the following sentence, omitting formal parts:
“* * * The court is bound to take notice of the nature and character of the offenses with which you have been previously charged and convicted, as well as the offenses committed in this county and state.
“Upon Count I of the information charging you with the crime of grand larceny, it will be the sentence and judgment of the court that you be imprisoned in the state penitentiary at Sioux Falls, South Dakota, for the term and period of five years; and upon Count II of the information charging you with burglary in the third degree, it will be the sentence and judgment of the court that you be imprisoned at Sioux Falls, South Dakota, in the state penitentiary for the term and period of ten years, and that you stand committed to the custody of the sheriff of Lawrence county, South Dakota, pending execution of both of such sentences.
“Upon the information charging you as an habitual criminal, it seems that under the law of this state and under the record you have made, it becomes the duty of the court to sentence you to the penitentiary for life. If the time is shortened it must be shortened by those who have authority to give you your liberty. You have not heretofore appreciated or had any understanding of your duties as a citizen. You seеm to demonstrate at every opportunity that you must wrong someone. It is unfortunate that you have so made your life and so established a record, so it will be the sentence and judgment of the court that upon your plea of guilty to the information charging you as an habitual criminal you be imprisoned in the Sioux Falls penitentiary for and during the term and period of your natural life and that you stand committed to the sheriff of Lawrence county pending the execution of thаt sentence. * * *”
Thereafter on the same day, the judge signed and entered a written judgment to the effect that the defendant, Donald Eugene Watt, be imprisoned in the state penitentiary at Sioux Falls on Count I for the full term of five years, and on Count II for the full term of ten years, and that upon the information charging him as an habitual criminal with the commission of four previous felonies, he be imprisoned for the full term and period of his natural life, and committing the defendant to the custоdy of the sheriff pending the execution of the judgment. The said Donald Eugene Watt was thereupon committed to the state penitentiary at Sioux Falls, South Dakota.
On the 28th day of February, 1950, the petitioner, Donald Eugene Watt, applied to the Circuit Court of Minnehaha County, Second Judicial Circuit, for a writ of habeas corpus, and the court issued an alternative writ directed to G. Norton Jameson, warden of the penitentiary; and thereafter, the attorney general having made due return to said application and writ, the prisoner, Donald Eugene Watt, was brought before the court, appearing by his counsel, and the warden appearing in person and by an assistant attorney general, and a hearing was had thereon.
The court further found: “* * * that from the facts and from the concessions made before the Court by the Attorney General’s office and from the form of sentence imposed, that that portion of the judgment wherein and whereby the petitioner is sentenced for being an habitual criminal is not only erroneous, but null and void and of no force and effect. The Court likewise further finds that as no good time has been fixed and none could be fixed by the Board of Charities and Corrections as long as said life sentence existed, that the petitioner’s application for a writ of habeas corpus be and the same is denied and dismissed, and that the prisoner be remanded to the custody of the Warden of the State Penitentiary until his ten-year sentence is served, less good time, if granted by the Board of Charities and Corrections.”
And upon the above findings, the court entered the following judgment: “Now therefore, it is ordered and adjudged that the writ of habeas corpus heretofore issued on the 28th day of February, 1950, and filed March 1, 1950, be and the same is hereby dismissed, and said petitioner, Donald Eugene Watt, is hereby remanded to the custody of said G. Norton Jameson, the Warden of said penitentiary, with instructions to make recommendations to the Board of Charities and Corrections, as provided by law in regard to the good time оf said Donald Eugene Watt, and that said Donald Eugene Watt be only released by the Warden of the State Penitentiary when he has served the ten-year sentence, less such good time, if any, as may be fixed by the Board of Charities and Corrections, as provided by law.”
On the 6th day of April, 1950, upon the application of the attorney general, the Circuit Court of Lawrence County issued an order directing that the defendant, Donald Eugene Watt, be returned to Lawrence County for thе purpose of resentence. An order and notice of hearing was given the defendant and his counsel, and a hearing had on the 8th day of May, 1950, at which hearing the defendant was present with his counsel; and on motion of the attorney general, and over the objection of the defendant, the court, with the Hon. Alex Rentto, judge, presiding, entered the following judgment, omitting the formal parts:
“And now, on this 8th day of May, 1950, it is by the Court
“Considered, ordered and adjudged that the Defendant, Donald Eugene Watt, on his plea of guilty to the charge contained in Count II of the information, and on his admission that he is the same person who committed the four felonies charged in the additional information filed herein, be imprisoned in the State Penitentiary of the State of South Dakota, at Sioux Palls in Minnehaha County, in said State, for the full term and period of his natural life,said life sentence being enhanced punishment as a habitual criminal for the crime of burglary in the third degree; and further, that the sentenсe of ten (10) years, previously imposed for the offense of burglary in the third degree on November 17, 1942, is herewith vacated, such time as has already been served under said sentence to be deducted from the sentence herein imposed.
“That the Defendant stand committed to the Sheriff of Lawrence County, pending the execution of this sentence and judgment.”
Thereupon the said Donald Eugene Watt was returned to the penitentiary where he is now confined. In the meantime, the record discloses that the Board of Charities and Corrections of the State of South Dakota had allowed the defendant Watt his time off for good behavior, so that he was eligible for discharge, on the ten-year sentence, June 20, 1950.
The said Donald Eugene Watt has now applied to this court for a writ of habeas corpus alleging, in substance, that he is unlawfully restrained of his liberty by the warden of the state penitentiary under the purported authority of the judgment of the Circuit Court of Lawrence County, South Dakota, dated May 8, 1950, which revoked the former judgment of said court sentencing the defendant to ten years’ imprisonment on the charge of burglary in the third degree, and imposing life imprisonment for the same offense.
In habeas corpus proceeding to inquire into imprisonment resulting from a judicial proceeding, the inquiry is limited to question affecting jurisdiction of court which caused the imprisonment. SDC 37.5504; State ex rel. Engebritson v. Circuit Court fоr Grant and Day Counties, 69 S.D.
454,
There is no dispute in the facts, and therefore the only-question presented is whether it was within the authority of the second trial court, under the admitted facts, to set aside the prior sentence of ten years for burglary in the third degree, and resentence the defendant to life imprisonment.
It is very plain from the record before us that the sentencing court was laboring under the misapprehension that the information charging the defendant with four prior сonvictions constituted a separate and distinct crime for which the court was compelled to inflict life imprisonment, for the trial court, after sentencing the defendant to five years in the penitentiary for grand larceny, ten years in the penitentiary for burglary in the third degree, and committing him to the custody of the sheriff of Lawrence County pending the execution of both sentences, said: “Upon the information charging you as an habitual criminal, it seems that under the law of this state and under the record you have made, it becomes the duty of the court to sentence you to the penitentiary for life. * * *, so it will be the sentence and judgment of the court that upon your plea of guilty to the information charging you as an habitual criminal you be imprisoned in the Sioux Falls penitentiary for and during the term and period of your natural life and that you stand committed to the sheriff of Lawrence county pending the execution of that sentenсe.”
In the late case of State ex rel. Smith v. Jameson,
That case is not controlling for the reason that the Oregon habitual criminal act is mandatory in its terms, while our statute leaves the imposition of the increased penalty of the sentence within the discretion of the trial court.
Under the Oregon law, the prior convictions may be established and the enhanced penalty imposed under provisions similar to subsection three of our act after conviction and sentence on the principal offense, and even though the prior convictions were known to the court at the time of passing sentence on the principal offense, for the reason that the imposition of increased punishment on repeaters, under the Oregon habitual criminal act, is not discretionary with the sentencing judge, but his mandatory duty. O.C.L.A. §§ 26-2801 to 26-2804; State v. DeMarsche, supra; Macomber v. State, supra.
On November 17, 1942, the trial court had jurisdiction of the defendant and of the subjеct matter. It was within his power to sentence the defendant to five years in the penitentiary for grand larceny and ten years in the penitentiary for burglary in the third degree, and commit him to the custody of the sheriff of Lawrence County for transfer to the penitentiary, all of which he did. Whether or not the penalties would have been increased if the trial court had realized that the prior convictions did not create a new or independent crime, but were merely a matter of aggravation of the punishment to be imposed for the conviction of the crime of grand larceny or burglary in the third degree or both, is now a matter of conjecture.
In the case of State v. DeMarsche [
We are also satisfied that where the facts of defendant’s prior conviction or convictions are alleged in the original information charging the defendant with the principal offense, or such facts are set forth in an additional information, and the defendant, after having been convicted of the principal offense, admits the truth of the prior convictions as alleged, it is the duty of the trial court, if the judgment is
There is another important reason why the Circuit Court of Lawrence County was without authority to vacate the sentence of ten years for burglary in the third degree and impose a life sentence for the same offense in its judgment of May 8, 1950.
Where a court has jurisdiction of the pеrson and offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence in excess open to question and attack. In re Taylor,
The record discloses that after the defendant was committed to the penitentiary and had served all of his five-year sentence, and more than eight years of the ten-year sеntence, he made application to the Circuit Court of Minnehaha County for a writ of habeas corpus to test the legality of his imprisonment under the judgment of the court of November 17, 1942. A hearing was had upon the defendant’s application, and the Circuit Court of Minnehaha County entered a judgment or order to the effect that the judgment of the court, insofar as it attempted to impose life imprisonment on the defendant for the crime of being an habitual criminal, was null and void and of no force and effect, and that the defendant had received a valid sentence of five years for grand larceny and ten years for burglary in the third degree, both sentences running concurrently, and remanded the prisoner back to the penitentiary until he had served his ten-year sentence'for burglary in the third degree, less such' time off for good behavior that he might be entitled to receive.
This decision of the Circuit Court of Minnehaha County constituted a final order affecting the rights of the defendant under said sentence made in a special proceeding from which an appeal to the Supreme Court is authorized. Since an order of a circuit court or a judge on a writ 'of habeas corpus is a final order affecting a substantial right and appealable, it is res judicata as to every question that was or could have been presented upon such a writ, the facts and conditions remaining the same. In re Scott,
In the case of McMahon v. Mead, the Supreme Court of this state said: “We are not unmindful of the fact that in a majority of the jurisdictions of this country the courts hold an order of the court remanding one who has sought discharge upon habeas corpus not to bar another court from discharging such person upon the very ground passed upon by the former court; but, where the reason for a rule of law does not exist, such rule should not prevail, and thе reason upon which such rule is based is that an order
In the case of Ex parte Messina,
In this case the record discloses that there has been no change in the facts or conditions since the rendition of the order of the Circuit Court of Minnehaha county in said habeas corpus, proceeding, except that the defendant has now fully served his sentence of ten years.
It is therefore the judgment of this court that the applicant is entitled to be released from the penitentiary, and the writ will therefore issue.