*1 Richmond Virginia. Wesley v. Commonwealth Gilford November Record No. 3591.
Present, All the Justices. *3 states the case. opinion W. A. for the Hall, Jr., in error. plaintiff Almond, Lindsay Attorney General, Jr., Ballard J. Assistant for Baker, the Attorney General, Commonwealth.. delivered the J., of the court. Miller, opinion 14, 1948, On December an information was filed in the- Circuit Court of the of Richmond Gilford Wes- city against in which it was that he had been convicted of a. ley charged on three occasions and in each instance felony previous 1949, he On to the sentenced February penitentiary. of ten as a and a term tried and convicted recidivist was in the confinement penitentiary imposed. years’ Vir- the Code of of section 5054 of The material portion under accused was (Michie), which prosecuted ginia, is as follows: offense, sentenced to convicted of an
“When a person therein, therefor in the is received confinement penitentiary, the of if it shall come to knowledge Superintendent he has sentenced to a like been the pun penitentiary the United States to the sentence he is then ishment in prior shall information thereof the give serving, superintendent Rich the Circuit Court of without delay City * * * the him confine mond. court to further may for ment in the of not five period exceeding he has been once before sentenced if United years, confinement in but if he has been States penitentiary; confinement, sentenced in the United States to such twice in the to be confined for such sentenced may additional [*] * * ". time as court trying case may deem proper. review, Exclusive of conviction now under the record had that accused been convicted times in establishes three News, Vir- Court city Corporation Newport Those convictions are as follows: ginia. 1943, for
November and sentenced to housebreaking five years. sentenced, 1, 1946, for to five grand larceny
February years. for and sentenced to three housebreaking
years. *4 the of three for which last sentence
The was years felony on The was committed 1947.* the--day July, imposed record further discloses that while accused
was his serving i. the sentence e., second term for him felony, imposed upon and, 1, 1946, he while com- escaped, fugitive, February 1947, on date in the *The did not show what was July, felony record committed.—Reporter’s Note. 15,, the crime he mitted for which was convicted on July short, In he had not finished given serving penalty his second conviction at the time he under committed the. term for which his third was When he offense imposed. returned to under the third was 1947, he was confronted with and had to serve the. July of the term balance for second conviction. imposed 18,. Accused asserts that the of November (1) judgments are void that no prosecution can offender under section be based such third on con- sentences, (2) that if these be. victions judgments valid, the recited facts do nevertheless not him within bring section 5054 for the reason the terms of that when he was. at and entered the received his third con- penitentiary upon “then was not the third sentence viction but took serving” service of of the second sentence.. unexpired portion up under accused The indictment which was convicted and 18, 1943, sentenced on November him with the- charged felonious several different breaking buildings, “office, storehouse, warehouse, and other namely, shop, ” * * * of Maurice L. Block with house intent to steal and of certain therefrom articles. the theft The verdict as. was follows:
“We, the find the accused Gilford as. jury, Wesley, guilty in the within indictment and fix his at charged in (5) Five state N. years penitentiary. (Signed) Pepper,. J. Foreman.” terms, verdict it The is conceded that it being general is a conviction for with intent to commit housebreaking accused larceny, yet says judgment carrying into effect is void because the verdict verdict did not specify or that he broke and entered. designate specific building The verdict in the indict responsive charge ment, is in the statutes, viz.,. which of the language pertinent Code, (Michie). sections 4438 and 4439 trivial omission or. if it measures irregularity, up such, in this verdict and a court of judgment pronounced by
273 in- matter of the and jurisdiction subject competent person volved could be writ of error. Com- questioned by only 33, E. monwealth v. 150 Va. 142 S. 402. Beavers, Accused also asserts that sentence and of judgment 15, 1947, is void. The indictment which this upon conviction had in was one and count unlawful charged felonious and of certain houses with intent breaking to commit therein and the actual of enumer larceny larceny ated articles. Trial was waived and all matters of by jury law and fact submitted to the court of upon plea guilty. reads, in that “the court doth find judgment part, said Gilford of with to intent Wesley guilty housebreaking * * * commit and .” the au larceny grand larceny Upon of 490, Clark v. 135 Va. Commonwealth, 115 S. E. thority 704, accused asserts that the constitutes a convic judgment tion and sentence crimes, for two distinct i. (1) house e., (2) is therefore void. breaking, larceny—and 496, In Clark's at Case, we find: supra, page “It would from these authorities that where the appear accused with intent with charged breaking entering commit commission of larceny, larceny, might of either offense but convicted not of both.” That statement was the court with made reference by an which indictment count one two crimes charged of (a) (b) We breaking entry, larceny. agree under such an indictment the conclusion voiced is correct.
However, at in the case bar the court in' which conviction and sentence was rendered had jurisdiction matter, accused and and the im subject was either law for offenses men by posed prescribed tioned in the indictment and This mere error or judgment. void, does render the not and could irregularity judgment have been taken writ of It error. advantage only by not be relied in this a collateral Har may upon proceeding. 414, 32 (2d) 665; mon v. 183 Va. E.S. Hobson v. Smyth, 906, Va. 15 E. (2d) 76; 177 S. v. Youell, Commonwealth Anderson v. 115 W. Va. Beavers, McClintic, supra; 1156; Law”, 857; S., “Criminal sec. S. E. 24 C. p. J. Law”, 154, and 25 Am. Am. “Criminal sec. Jur., p. Criminals,” sec. “Habitual Jur., p. *6 accused on and of conviction
Upon his 1947, offense, his third 15, for entry immediately upon balance of he started the the into serving penitentiary has been made this is true second term. That unexpired 442, v. 179 Va. Youell, the of Hudson certain decision by 705, it at (2d) E. where is said 451: 19 S. p. a we had rulé in both before
“The general Virginia, con- since, that sentences run on the and is statute subject and not concurrently.” secutively service of the third term ordered concurrent Not having as have of the second term with the might portion unexpired Code, it under sec. 4786 of been done court by the entire term follows that imposed logically previously service of the be served before accused must begins wholly not mere of the accused could third term. The later escape successive terms. See break this of service of sequence 441, 522, (2d) Va. 47 E. and McDorman v. S. Smyth, 474, (2d) v. 188 Va. 50 S. E. 423. McDorman Smyth, for However, it true that when convicted is equally offense, the of accused into the the third penitentiary and as a of sentence. and result that was through judgment accused relative to his into The status of re-entry established, service of his sentences and being a can he be third of- is punished question presented fender. first in the Revised Code of
Section 5054 appeared of sections is a consolidation It outgrowth .3905 Acts, 34, 19Í6, as amended of the Code by pp. and other sections that 35, and section 4180 cognate with Code, all which dealt of habitual mentioned, sections i. e., criminals. The three secs. (cid:127) read as follows: sentenced confinement in “Sec. 3905. When to person sentenced to has been once before like punish- his sentence.—When ment, to be added to what any person offense, an sentenced to confinement is convicted of in and it is in the indict- therefor alleged penitentiary, convicted, admitted, is ment on which he or by found, he had before United been sentenced in the jury a like he shall sentenced to be States to punishment, in time confined five addition to the to which years, or would be sentenced.” otherwise before,
“Sec. 3906. When so sentenced twice how to be sentenced.—When such convict shall have been twice any before in the United States confinement in the sentenced to he shall be sentenced be confined to penitentiary, pen- for life.” tentiary
“Sec. 4180. When convict has been before sentenced has not been to sentenced additional term peniteniary, confinement, or what do.—When Superintendent person offence, convicted of an and sentenced to confinement there- *7 fore in the therein, is received if he was be- penitentiary, like fore sentenced to a and the record of his punishment, conviction does not show that he has been sentenced under section hundred and five or hundred thirty-nine thirty-nine and six, of the shall Superintendent Penitentiary give thereof, information without to said circuit court delay, of Richmond, whether it be or not in City alleged the indictment on which he was so convicted, that he had been sentenced a before to like punishment.”
These three sections as
to 1919 and
they appeared prior
section 5054 as it now
are
reads
Such acts
highly penal.
must be
construed
the Commonwealth. Their
strictly
against
not be extended to
case not
penal
may
operation
any
clearly
within
terms.
their
v.
Wright
Commonwealth, 109 Va.
S. E. 19;
v.
Young
Commonwealth,
Therefore, in our opinion act of this an to of the rule of construction applicable reasonable admits two character is that if the language constructions, that but favorably resulting contradictory result that favorable But, the accused if should be applied. as to an so narrow be attained only by interpretation unreasonable, it must be rejected. of the statute and underlying paramount purposes and to im- criminals
are habitual society against protect class of further against particular pose offenders. accused facts to convict
In our necessary opinion, have been a he must first' as second offender are that sen- and committed second tenced to the thereafter penitentiary therefor. To offense and been sentenced pun- penitentiary ish offender, bar, it must be him a is the case at third as accused, been sentenced to the shown that once having which a a crime for thereafter committed penitentiary, second conviction was sentence imposed, penitentiary sen- to the commission imposition subsequent offense, he committed third offense tence for the second sentenced to the for which he has been convicted and peni- his into tentiary. receipt Upon conviction, all the intended re- third he meets under this has, He statute. committed sequence, quirements each time and crimes and been convicted sentenced three In for three offenses. to the separate every offense, instance, each conviction subsequent commission, followed in conviction therefor sequence and sentence for the offense. prior for conviction whether
To liability solely upon hinge *8 the he is after into immediately entry actually term, his second the service the remainder of of serving he his or his which wrongful by escape, serving postponed allow him to commit number term, would of third any from and an evade crimes while fugitive escapee justice he recidivist, because had to serve as a merely punishment first balance of the term unserved on the remaining conviction. He would his own criminal thus prior profit by conduct. such nar- unreasonableness and actual of absurdity if we
row construction of statute is made evident stop to consider the fact that if accused had been twice con- a victed another State or in of the United States court from of such other State or escaped the United of States while his second term and then serving committed third crime in and received a Virginia peni- he court, sentence from could be tentiary ished as a third offender. Virginia pun- instance,
In that it is obvious that received at the when Virginia penitentiary upon he would thereof have been then twice entry previously “sentenced to a like in the United States punishment prior * * he then to sentence in the serving Virginia penitentiary.
It is had the likewise of apparent judge Corpo- of ration Court News directed that city Newport sentence on three run con- year imposed with the balance of the term currently unexpired remaining conviction, be the second to served on accused’s upon into the would be the unex- penitentiary, serving his second sentence and also the three portion year pired for his third conviction and would be imposed this a third to offender. clearly subject Yet if the strained narrow contended interpretation be conviction for accused as a recid- by applied, present ivist cannot be sustained because his was from simply escape his return thereto under Virginia penitentiary, upon sentence, conviction, did his third the court not order that with balance served his second concurrently sentence. to the statute such
We are an unreason- unwilling give effect. able and vacillating the lower court is affirmed.
The judgment
Affirmed. *9 J., dissenting. Buchanan, of the court that section holds opinion rightly
ais statute; that it must be construed highly penal strictly the Commonwealth, and that its not against may operation be extended to case not within its terms. It any clearly be extended not not construction to cases “may by clearly within the in stated v. Com- Wright language employed,” monwealth and in other cases authorities cited repeated in the opinion.
But the does, result reached extend the my opinion, statute construction. The statute that when the by says convict received into the and “has been sen- tenced to a in the United States like punishment prior the sentence he is then he becomes amenable to serving,” the additional the statute. It punishment prescribed by has been made certain, that when he was says opinion,, convicted and sentenced in 1947 for his third offense, “im- into the he started mediately upon the balance of his term,” second is, that serving unexpired the 1946 term. There had been one conviction only prior to that—the 1943 conviction. then, when the Necessarily, defendant was convicted and sentenced to ten as a years recidivist, he had been convicted one time to the only prior sentence he was “then In case, that his additional serving”. sentence was limited the statute to five by years. statute,
By express wording only affords basis for additional is one that been1 has to the sentence he is then serv pronounced “prior If the intended to else, ing.” legislature say something the correction should be made it. It would have been by better if the statute had been worded so as to what permit has been done. It be conceded that it not to may ought be the it is and that a different result would if follow way the facts were different. But we must the statute apply as written to the facts as are. they
The facts are that this defendant had been sentenced only time to the 1946 sentence which was “then one prior In that case the statute the court sen- serving”. says may him further tence confinement for of not more period *10 than from the statute five To to sen- years. get authority tence him to ten involves a of the statute years re-wording it. rather than construction of
Spratley concur this dissent. JJ., Staples,