STATE OF WEST VIRGINIA EX REL. DENNY J. BROWNING v. E. H. TUCKER, Warden, etc.
(No. 10893)
Supreme Court of Appeals of West Virginia
Decided June 18, 1957.
142 W. Va. 830 | 98 S.E.2d 740
Affirmed.
Submitted May 21, 1957. Decided June 18, 1957.
O. D. Damron, for relator.
W. W. Barron, Attorney General, George H. Mitchell, Assistant Attorney General, for respondent.
This is a habeas corpus proceeding instituted in this Court, in which the petitioner, Denny J. Browning, seeks a writ to require the defendant, E. H. Tucker, Warden of the West Virginia Penitentiary, forthwith to release him from his present confinement under a sentence of life imprisonment imposed upon the petitioner by the final judgment of the Circuit Court of Logan County, entered January 21, 1941, in the trial on an indictment for the felony of malicious wounding returned against him by a grand jury attending that court at its regular May Term, 1940.
The petitioner contends that the circuit court was without jurisdiction to impose the sentence of life imprisonment, or any sentence in excess of a term of ten years, the maximum period prescribed by
The indictment upon which the petitioner was tried charged him with the crime of malicious wounding and also alleged, as required by the statute then in effect, that he had previously been twice sentenced in the United States to the penitentiary. To the indictment he entered his plea of not guilty. The jury returned a verdict of guilty in this form: “We, the jury, find the defendant, Denny Browning, guilty of malicious wounding, as charged in the within indictment. Sherman Lawson, Foreman.” Immediately after the foregoing verdict was returned and recorded the court entered judgment upon the verdict and sentenced the petitioner to confinement in the penitentiary for the remainder of his natural life.
All the foregoing proceedings are recited in and affirmatively appear from the final judgment entered by the circuit court on January 21, 1941.
From the recitals in the final judgmеnt it affirmatively appears that the petitioner by his plea of not guilty denied both the charge of malicious wounding and the allegations of the indictment that he had previously been twice sentenced in the United States to the penitentiary; that he was not found by the verdict of the jury to have previously been twice sentenced in the United States to the penitentiary; and that in view of his denial of the former sentences alleged in the indictment, by his plea of not guilty, which was not withdrawn and was not overcome by proof concerning the alleged former sentences, the petitioner did not admit that he had previously been twice sentenced to the penitentiary. These recited facts are not contradicted by any showing to
It is clear from the judgment imposing the sentence of life imprisonment that the circuit court did not comply with the requirement of
The jurisdiction of the Circuit Court of Logan County to sentence the petitioner to life imprisonment by the judgment rendered January 21, 1941, depended upon and was derived from the habitual criminal statute,
A habeas corpus proceeding is not a substitute for
A void judgment, being a nullity, may be attacked, collaterally or directly, at any time and in any court whenever any claim or right is asserted under such judgment: State ex rel. Vance v. Arthur, 142 W. Va. 737, 98 S. E. 2d 418; State ex rel. Lovejoy v. Skeen, 138 W. Va. 901, 78 S. E. 2d 456, certiorari denied, 349 U. S. 940, 75 S. Ct. 786, 99 L. ed. 1268; Bennett v. Bennett, 137 W. Va. 179, 70 S. E. 2d 894; Stephenson v. Ashburn, 137 W. Va. 141, 70 S. E. 2d 585; Cable v. Cable, 132 W. Va. 620, 53 S. E. 2d 637; Evans v. Hale, 131 W. Va. 808, 50 S. E. 2d 682; Pettry v. Hedrick, 124 W. Va. 113, 19 S. E. 2d 583; Perkins v. Hall, 123 W. Va. 707, 17 S. E. 2d 795; Hayhurst v. J. Kenny Transfer Company, 110 W. Va. 395, 158 S. E. 506; New Eagle Gas Coal Company v. Burgess, 90 W. Va. 541, 111 S. E. 508; Jones v. Crim, 66 W. Va. 301, 66 S. E. 367; Roberts v. Hickory Camp Coal and Coke Company, 58 W. Va. 276, 52 S. E. 182; St. Lawrence Boom and Manufacturing Company v. Holt, 51 W. Va. 352, 41 S. E. 351; Hoback v. Miller, 44 W. Va. 635, 29 S. E. 1014; Fowler v. Lewis, 36 W. Va. 112, 14 S. E. 447; Haymond v. Camden, 22 W. Va. 180; Camden v. Haymond, 9 W. Va. 680; 11 Michie‘s Jurisprudence, Judgments and Decrees, Section 145; 11 Michie‘s Jurisprudence, Jurisdiction, Section 9.
This proceeding is a collateral attack upon the judg
The judgment sentencing the petitioner to life imprisonment, being in excess of imprisonment for a term of ten years, which is the maximum sentence of imprisonment the circuit court had jurisdiction to pronounce upon the verdict convicting the petitioner of the crime of malicious wounding, is a void judgment to the extent that it exceeds the maximum sentence of imprisonment for ten years from the date of its rendition. A judgment which is whоlly void, or is void in part, is subject to collateral attack in a habeas corpus proceeding. State ex rel. Mick v. Coiner, 142 W. Va. 710, 98 S. E. 2d 1; State ex rel, Lovejoy v. Skeen, 138 W. Va. 901, 78 S. E. 2d 456, certiorari denied, 349 U. S. 940, 75 S. Ct. 786, 99 L. ed. 1268; State ex rel. Vascovich v. Skeen, 138 W. Va. 417, 76 S. E. 2d 283, certiorari denied, 346 U. S. 916, 74 S. Ct. 277, 98 L. ed. 411; State ex rel. Cain v. Skeen, 137 W. Va. 806, 74 S. E. 2d 314; Dye v. Skeen, 135 W. Va. 90, 62 S. E. 2d 681, 24 A.L.R. 2d 1234; Scott v. Harshbarger, 116 W. Va. 300, 180 S. E. 187; Ex Parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59.
To sustain the judgment of the circuit court imposing the sentence of life imprisonment the defendant cites and relies upon the decision of this Court in State ex rel. Lovejoy v. Skeen, 138 W. Va. 901, 78 S. E. 2d 456, certiorari denied, 349 U. S. 940, 75 S. Ct. 786, 99 L. ed. 1268. That case is clearly distinguishable from and does not control the decision in this proceeding. In the Lovejoy case, in which the petitioner attacked as void a sen
The opinion in the Lovejoy case contains these revealing statements: “A conviction and sentence of a person in a court of competent jurisdiction, in the absence of a showing that the judgment is wholly or partially void, will not be reviewed in a proceeding in habeas corpus.” and “The judgment of the Circuit Court of Logan County is valid on its face. That Court had jurisdiction and the sentence pronounced was in the exercise of its constitutional power and by virtue of a valid statute. We reach the conclusion that the judgment pronounced by the Circuit Court of Logan County, sentencing the prisoner to life imprisonment is not void.” In the opinion this statement also appears: “In the absence of a showing otherwise, we assume that the Circuit Court of Logan County followed the statute in pronouncing sentence, but omitted through inadvertence, a statement of such action.”
As the record under consideration in the Lovejoy case did not affirmatively show that the trial court was without jurisdiction to impose the sentence of life imprisonment under the habitual criminal statute, the presumption in favor of the jurisdiction of the court to impose that sentence was properly recognized and applied. When the record of a court of general jurisdiction is merely silent with respect to a matter affecting its jurisdiction, the presumption that it satisfied and complied with all jurisdictional requirements for the entry of a valid judgment will be accorded prevailing force
In the Lovejoy case the judgment imposing the sentence of life imprisonment, being valid on its face and not contradicted by any showing to the contrary in the record, was not subject to collateral impeachment in a habeas corpus proceeding. In the case at bar, however, unlike the judgment in the Lovejoy case, the judgment affirmatively shows, without contradiction in the record, that the petitioner by his plea of not guilty denied not only his guilt of the offense charged against him but also the allegations in the indictment that he had previously been twice sentenced to the penitentiary; that the issue raised by that plea was never resolved against him;
When, without any showing to the contrary, it affirmatively appears, from the record in the trial of a criminal case on an indictment for a felony punishable by confinement in the penitentiary for a period less than life imprisonment, that the trial court did not comply with the habitual criminal statute then in effect which expressly required that before a sentence of life imprisonment may be lawfully imposed it must be admitted, or by the jury found, that the person convicted on the indictment had previously been twice sentenced in the United States to the penitentiary, a judgment imposing a sentence of life imprisonment upon the convict, based upon the statute, is void, to the extent that it exceeds the maximum sentence for the particular offense charged in the indictment, for lack of jurisdiction of the trial court to render it, and the effect of that part of the sentence of life imprisonment, in excess of the maximum sentence for such particular offense, will be avoided and its enforcement prevented in a habeas corpus proceeding. Dye v. Skeen, 135 W. Va. 90, 62 S. E. 2d 681, 24 A.L.R. 2d 1234; Ex Parte Evans, 42 W. Va. 242, 24 S. E. 888; Ex Parte Mooney, 26 W. Va. 36, 53 Am. Rep. 59. In the opinion in Ex Parte Evans, 42 W. Va. 242, 24 S. E. 888, this Court said: “Where the imprisonment is under process or order that is void, as distinguished from irregular or erroneous, the writ of habeas corpus holds it for naught, disregards or ignores it as not furnishing warrant for imprisonment; but it does not operate directly on the void process or judgment by annulling or reversing it, like an appeal, writ of certiorari, or writ of error, but, as a collateral procedure, simply releases from the prison by ignoring the alleged warrant for imprisonment.”
As the petitioner has fully served the maximum sen
Writ awarded; petitioner discharged.
BROWNING, JUDGE, dissenting:
It is with deference that I dissent from the decision of the Court in this proceeding. It is my opinion that the rule laid down in State ex rel. Lovejoy v. Skeen, Warden, etc., 138 W. Va. 901, 78 S. E. 2d. 456, is controlling of the issue here presented; that under the rule of stare decisis this Court cannot reach a different decision upon facts which cannot be distinguished; and that the petitioner should nоt be discharged upon the writ of habeas corpus unless this Court overrules the Lovejoy case. In its opinion, the Court would distinguish this case from the Lovejoy case upon the ground that the trial court failed to comply with the requirements of the habitual criminal statute in that the judgment in that case, “unlike the record before this Court in this proceeding, did not show affirmatively that such requirements were not satisfied.” That conclusion is based upon the preliminary finding that, under the statute in effect at the time petitioner was sentenced, it was provided that before such sentence could be lawfully imposed the prior convictions must be set out “in the indictment on which the accused is convicted, and admitted, or by the jury found, that such convict had theretofor been twice sentenced in the United States to the penitentiary.”
I take sharp issue with the statement in the Court‘s opinion that: “From the recitals in the final judgment it affirmatively appears that the petitioner by his plea
In State v. Graham, 68 W. Va. 248, 69 S. E. 1010, 224 U. S. 616, an inmate of the State Penitentiary at Moundsville was proceeded against by information in the Circuit Court of Marshall County, pursuant to the provisions of
If the facts of previous convictions are material to the one count indictment, as well as the allegations charging the crime of malicious wounding to which the prisoner was required to plead, the question arises as to whether he could plead “guilty” to the first part of the indictment and “not guilty” to the latter part of it, or vice versa. The statute contemplated no such procedural incongruity. If such had beеn contemplated, I would have grave doubt as to its validity. The prisoner could
It is evident that there is some conflict in the decisions of the courts upon the effect of a plea of not guilty to such an indictment followed by a guilty verdict, as will be noted by the cases collected in Underhills Criminal Evidence, 5th Edition, 1956, Chapter 20. It should be observed, however, that many of the cases which support the view of the majority in this proceeding, as well as some decisions of this Court that are not there cited, are cases wherein a second or third offense of a misdemeanor constitutes a felony, and in which case the defendant may be convicted of еither a misdemeanor or a felony. Whatever the correct rule may be, neither this Court or any other court in passing upon the question has heretofore been confronted with the rule laid down in the Lovejoy case.
Under the old statute, it was necessary that the previous offense be set out in the indictment, and, before a sentence of life imprisonment could be invoked, it was necessary that the prisoner be found guilty of the felony with which he was charged, and that it be determined that the convicted person had theretofore been twice sentenced in the United States to the penitentiary in one of two ways: An admission of those facts, or that it be found that he was such person by the jury which convicted him of the latest offense. The statute is very clearly in the alternative in using the words “and admitted, or by the jury found“. In regard to the latter method, it has been the position of this Court that only
Now it is quite true that the order of the Circuit Court of Logan County does not affirmatively show that either of the statutory methods for determining the question of former convictions was met. But the identical situation prevailed in the Lovejoy case where the requirements of the statute, as to the manner in which it is tо be determined whether a convicted felon is the same person who had previously been convicted of two crimes punishable by confinement in the penitentiary, are more stringent than those contained in the old statute. Whereas the old statute only required that the prisoner “admit” the previous conviction, the new statute requires that after information is filed by the prosecuting
The statute under which petitioner reсeived his sentence of life imprisonment, as well as the amended act under which Lovejoy was sentenced, have been held by this Court to be valid. That being so, it was the prerogative of the Legislature to determine the manner in which it could be determined that a prisoner had previously been convicted of one or more previous offenses. This Court cannot, without violating the division of powers provision of our Constitution, encroach upon the authority of the Legislature. I see no difference between the word “admitted” in the old statute and the word “acknowledges” in the amended act. Thе judgment orders entered by the Court in both the Lovejoy and the instant proceeding contain almost identical language. In the
The majority opinion also makes much of the fact that the judgment recites petitioner was sentenced “in accordance with the verdict of the jury herein“, which was “guilty of malicious wounding.” Of course petitioner was sentenced in accordancе with the verdict of the jury. So was Lovejoy, because that was the only thing the Court had before it in either case upon which it could impose any sentence. True, a longer sentence may be imposed under the habitual criminal act, but such must be based upon the verdict of guilty of grand larceny, as in the Lovejoy case, or guilty of malicious wounding, as in the instant case. I, therefore, consider the phrase “in accordance with the verdict of the jury” of no significance, as it does not affirmatively show that the requirements of the habitual criminal act were not met.
For the reasons stated, I find nothing in the final