STATE OF WEST VIRGINIA еx rel. FRANKLIN ACY COX v. OTTO C. BOLES, WARDEN OF WEST VIRGINIA STATE PENITENTIARY
No. 12109
Supreme Court of Appeals of West Virginia
June 13, 1961
Submitted May 23, 1961.
When we ascertain that the property bequeathed under the will and codicil, that is the $30,000.00, was placed in trust for the petitioner, June Wallace Claymore, with a general clause elsewhere in the will to dispose of income and profits as we have here, the question involved in this case is answered, because where a trust fund is created for a particular beneficiary without specifically disposing of the increment in the codicil setting up the trust fund, a general clause in the will disposing of increments of the trusts created by distributing them to the beneficiaries thereof would carry the necessary implied intent to let the increments naturally follow the equitable ownership of the trust fund created in the codicil. 96 C.J.S., Wills, § 1031; Bird et al. v. Newcomb et al., 170 Va. 208, 196 S. E. 605; Van Wart v. Jones et al., 295 F. 287; In Re Kohler, 160 N.Y.S. 669, 96 Misc. Rep. 433.
By virtue of the reasons set out herein and the cited authorities applicable to such matters, it is the opinion of this Court that the petitioner, June Wallace Claymore, is entitled to the use and benefit of both the sum of $30,000.00 given to her under the provisions of the will and codicil, and the increment thereof.
The judgment of the Cirсuit Court of Kanawha County is affirmed.
Affirmed.
Arthur Ritz Kingdon, for relator.
C. Donald Robertson, Attorney General, Simon M. Bailey, Assistant Attorney General, for respondent.
HAYMOND, PRESIDENT:
In this original habeas corpus proceeding instituted in this Court on May 8, 1961, the petitioner, Franklin Acy Cox, seeks a writ to compel the defendant, Otto C. Boles, Warden of West Virginia State Penitentiary at Moundsville, West Virginia, to release the petitioner, who is now confined in the penitentiary, from а sentence of five years imposed by the Circuit Court of Wyoming County on February 18, 1959, in addition to a sentence for an indeterminate period of from one year to ten years at that time also imposed by that court, upon an indictment for a felony to which the petitioner entered a plea of guilty.
To the petition for the writ, with which a copy of the indictment and a copy of the judgment imposing sentence were filed as exhibits, the defendant filed his return and his demurrer on May 23, 1961, and at that time this proceeding was submitted for decision upon the record and the written briefs of the attorneys for the respective parties.
On February 16, 1959, the grand jury of Wyoming County returned an indictment against the petitioner
On February 18, 1959, as appears from the judgment entered by the circuit court, the petitioner, being present with his attorney, after consulting with his attorney and after the indictment for the felony of breaking and entering had been rеad to him by the court, entered a plea of guilty to the indictment. The court accepted the plea of the petitioner and sentenced him to confinement in the penitentiary of this State for an indeterminate period of one year to ten years upon the indictment for the principal offense. The judgment then provides: “It further appearing to the court that you were convicted and sentenced to the West Virginia penitentiary from this court on August 20, 1956, the court hereby find you guilty of having committed a second felony, you are therefore sentenced to serve an additional 5 years in said institution. You will be credited with the time spent in jail which is 2 days.”
By a written stipulation, between the attorney for the petitioner heretofore appointed by this Court to represent him in this proceeding аnd an assistant attorney general who represents the State, it was agreed that copies of the indictment against the petitioner for the principal offense returned February 16, 1959, of the orders of the court appointing an attorney to represent him upon the trial of that indictment, of the final judgment rendered February 18, 1959, of the commitment of the petitioner, and of the certified transcript of the proceedings in court on February 18, 1959, immediately preceding the imposition of sentence by the judgment entered by the court on that date, should be introduced and considered as evidence in this proceeding, and that no information was filed by the prosecuting attorney of Wyoming County dur-
The petitioner contends that the judgment entered by the Circuit Court of Wyoming County on February 18, 1959, to the extent that it sentences him to an additional five year term of imprisonment under
It is well settled by the decisions of this Court that the jurisdictiоn of a trial court to sentence to further confinement in the penitentiary a person who is convicted of an offense and is subject to confinement in the penitentiary for such offense depends upon and is derived from
The judgment of the circuit court by which the petitioner was sentenced to be confined in the penitentiary for an indeterminate period of one year tо ten years and an additional term of five years because of his prior conviction and sentence for a felony is silent with respect to the proceedings had at the time of the entry of the judgment. 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 еntry of a valid judgment will be accorded prevailing force and effect; and a judgment imposing a sentence of imprisonment, which is valid on its face and is not contradicted by any showing in the record, is not subject to attack in a habeas corpus proceeding. Shears v. Adams, 145 W. Va. 250, 114 S. E. 2d 585; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; 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.
It affirmatively appears, however, from the record in this proсeeding and the stipulation in writing between the attorney for the petitioner and an assistant attorney general that no information concerning the prior conviction and sentence of the petitioner was ever filed by the prosecuting attorney and that the petitioner, before he acknowledged his identity as the person who had been previously convicted and sentenced, was not duly cautioned by the court. These two mandatory requirements of the statute were not complied with in connection with the imposition of the additional five year period of confinement; and for that reason the circuit court was without jurisdiction to impose that additional confinement upon the petitioner and that portion of the sentence imposed by the judgment entered February 18, 1959, is void аnd of no force and effect. State ex rel. Yokum v. Adams, 145 W. Va. 450, 114 S. E. 2d 892; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; State ex rel. Medley v. Skeen, 138 W. Va. 409, 76 S. E. 2d 146; 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. St. Rep. 59. In State ex rel. Yokum v. Adams, 145 W. Va. 450, 114 S. E. 2d 892, this Court held in point 2 of the syllabus that: “In the absence of a written information filed with the court, setting forth the previous conviction and sentence, or convictions and sentences, an additional sentence imposed, under the provisions of
The judgment which sentenced the petitioner to an additional confinement of five years, being in excess of the imprisonment for an indeterminate period of one year to ten years, the maximum sentence of imprisonment which the circuit court had jurisdiction to pronounce upon the pleа of guilty entered by the petitioner to the indictment against him for breaking and entering, is a void judgment to the extent that it exceeds the maximum sentence of one year to ten years. A judgment which is wholly void, or is void in part, is subject to collateral attack in a habeas corpus proceeding. State ex rel. Yokum v. Adams, 145 W. Va. 450, 114 S. E. 2d 892; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740, and the numerous authorities cited in the opinion in that сase.
The sentence of confinement for the additional period of five years, being void, can not be enforced. The relief from that portion of the sentence imposed upon the petitioner, as prayed for by him, is granted, and the petitioner, after completely serving the valid portion of his sentence, must be released. At this time, however, he has not served the valid portion оf his indeterminate sentence of one year to ten years. For this reason a writ which would presently release him from confinement is denied and the petitioner is re-
Writ discharged,
petitioner remanded
to custody.
GIVEN, JUDGE, concurring:
In this original proceeding in habeas corpus it is alleged that the court, a court of general jurisdiction, which entered the judgment sentencing defendant, exceeded its jurisdiction, and, therefore, that the sentence-judgment is void in so far as it relates to the additional sentence imposed by virtue of the habitual criminal statute. The matter alleged, if true, would render the judgment void, but does not appear “on the face of the record“, but lies without the record, and must be establishеd by allegation, and proof of facts outside the record. That was done in the instant case, by stipulation and, though the Court finds the allegation of lack of jurisdiction proved, and grants the relief sought, it says: “*** a judgment imposing a sentence of imprisonment, which is valid on its face and is not contradicted by any showing in the record, is not subject to attack in a habeas corpus proceeding“.
In my view, the statеment is too broad, and no authority has been found which supports it. If the invalidity does not appear “on the face of the record“, it can not be attacked collaterally, but is subject to a direct attack at any time, in any proceeding, including habeas corpus.
In State ex rel. Hall v. Skeen, Warden, 136 W. Va. 805, 68 S. E. 2d 683, an original proceeding in habeas corpus, involving the principle here considered, Judge Fox, speaking for a unanimous Court, said: “In awarding the writ in this case, it was assumed by this Court that if the allegations of relator were shown to be true, the Circuit Court of Logan County was with-
In Shank v. Town of Ravenswood, 43 W. Va. 242, 27 S. E. 223, the Court held: “3. In the case of an inferior court, board, or body, required to keep record, the facts essential to give it jurisdiction must appear in its proceedings, else its action will be void and open to attack collaterally; but, if its record state such facts, its jurisdiction will not be open to attack, nor can such facts be disproven in a collateral proceeding, nor will any error appearing therein affect its action.” (Emphasis Supplied).
The reason for the rule is clear. In a collateral attack, since the matter rendering void the judgment must appear on the face of the record, no allegation or pleading showing an invalidity is necessary, and no proof is needed or permitted. It has been contended that if the record of the subsequent proceeding establishes an invalidity rendering the judgment attack-
In State ex rel. Conley v. Thompson, 100 W. Va. 253, 130 S. E. 456, it is held: “4. The judgment or order of a county court, unless the record shows want of jurisdiction, cannot be collaterally attacked.” This is a clear application of the rule that a collateral attack can be made only where the invalidity appears on the face of the record. In the opinion it is clearly indicated that a direct attack for the purpose of having such a final order “set aside or annulled” would be proper.
In Wandling v. Straw & Morton, 25 W. Va. 692, the Court held: “1. The validity of a judgment of a court of record can not be collaterally attacked, on the ground that thе court had no jurisdiction, unless the want of jurisdiction appears upon the face of the record.” In the opinion, quoting with approval from the case of Carpenter v. The City of Oakland, 20 Cal. 439, in considering whether a judgment of a court of general jurisdiction could be attacked collaterally, the Court said: “The question is in our judgment too well settled by authority to require any argument founded on principle. Mr. Chitty states the rule to be that neither the defendant himself, nor his bail or sureties can plead that the judgment was obtained against him by fraud, though it may be pleaded that a judgment against a third person was so obtained. (1 Ch. Plead. 486.) The validity of the judgment can not be collaterally attacked on the ground of fraud, nor on the ground that the court had no jurisdiction, whether the supposed want of jurisdiction is alleged as an element of fraud or not, unless the want of jurisdiction appear upon the face of the record. The maxim of the law is, that the judgment of a court of general jurisdiction, imports absolute verity, and its truth can not be questioned, either by showing otherwise
It will be noticed that in the above quotation it is pointed out that if the validity of a judgment is to be impeached “from without, some other appropriate remedy must be found“. In Smith v. Johnson, 44 W. Va. 278, 284, 29 S. E. 509, referring to the statement just quoted, the Court stated that it clearly indicated “a remedy in equity against such judgment“, and in that case the Court considered the allegations contained in a bill in equity which alleged facts, if proved, sufficient to “nullify” a judgment entered in an action of trespass on the case. And in Chilhowie Lumber Company v. J. C. & W. B. Lance & Company, 50 W. Va. 636, 642, 41 S. E. 128, the Court said: “* * * This Court laid down the rule in Smith v. Johnson, 44 W. Va. 278, as follows: ‘When a defendant, by bill in equity, seeks to nullify a judgment at law obtained against him without service of process, upon unauthorized appearance by attorney, to succeed he must have a clear preponderance of evidence sustaining the allegation of his bill.’ Proceedings by motion and by bill in equity in such case are both direct and not collаteral and the rule must be the same. Wandling v. Straw, 25 W. Va. 692, 703.”
In Lough v. Taylor, 97 W. Va. 180, 124 S. E. 585, the Court held: “Where in a suit brought by a judgment creditor of defendant to subject lands of defendant to sale to satisfy the judgment rendered by a court having jurisdiction of the parties and the subject-matter the defense is that the judgment was procured by fraud,
I am aware, of course, of certain holdings of this Court which denominate the method of attack “collateral“, where the invalidity rendering the judgment attacked void did not appear on the face of the record, but in fact was based on matters dehors the record, and on allegations drawing in issue the existence of facts which, if proved true, would render the judgment attacked void. Though I believe such holdings wrong, I would feel bound by them except for the fact that the question relates to the name of a method of procedure, 49 C.J.S., Judgments, Section 408, and a wrong naming of such a method in one case does not warrant the use of the wrong name in another case. Moreover, the rights of the parties under the respective methods are very materially different.
In the concurring opinion in the case of Brouzas v. The City of Morgantown, 144 W. Va. 1, 106 S. E. 2d 244, many other authorities are cited and attention is directed to the importance to the bar and to litigants of keeping clear the existing distinctions between thе two methods of attacking a void judgment, and it is not deemed necessary to again attempt to do so here,
Since, however, the Court in the instant case has disregarded the uniformly recognized rule, that a collateral attack may be made only where the invalidity appears on the face of the record, and has, in accord with the allegations of the pleading, and on the issue drawn, accepted, considered and found sufficient the proof of the invalidity of the judgment attacked, to the extent complained of, and has granted the petitioner the relief to which he is entitled, I concur in the final action of the Court.