State ex rel. Smith v. Jameson
Decision Date | 26 June 1945 |
Docket Number | 8782. |
Citation | 19 N.W.2d 505,70 S.D. 503 |
Parties | STATE ex rel. SMITH v. JAMESON, Warden. |
Court | South Dakota Supreme Court |
T. R. Johnson, of Sioux Falls, for appellant.
George T. Mickelson, Atty. Gen., and E. D. Barron, Asst. Atty. Gen for respondent.
The appellant was charged by an information filed May 23, 1928, in the Circuit Court of Pennington County, South Dakota, with robbery in the first degree and with five prior convictions of a felony. The jury found defendant 'guilty of assault with intent to commit robbery'. The court on June 26, 1928, pronounced judgment as follows 'Now on this 26th day of June, 1928, the State's Attorney, and the defendant, Chester W. Smith, and the defendant's counsel, came into Court and this being the day fixed by the Court for the pronouncing of judgment on the conviction of the defendant for the crime of assault with intent to commit robbery, being an offense included within the offense charged in the information heretofore filed against the defendant in this Court and the said information having charged the defendant with committing said offense after having been three times convicted within this State of felonies, and the jury having found such charge to be true and the same having been admitted by the defendant in open Court and the defendant having been informed by the Court of the nature of said information, and of the said charge of former convictions and of his plea of not guilty and of the verdict of the jury, and being asked whether he had any legal cause to show why judgment should not be pronounced against him, and no cause being shown; the Court does adjudge and the sentence is that you, Chester W. Smith, be imprisoned at hard labor in the South Dakota State Penitentiary at Sioux Falls South Dakota, for the period of your natural life * * *.'
The case comes here on appeal from the judgment of the Circuit Court of Minnehaha county denying an application for writ of habeas corpus.
Sections 2 and 3 of Chapter 119, Laws 1927, read as follows:
Appellant's contention is stated by him as follows:
It is the prevailing view that inquiry is limited on habeas corpus to questions of jurisdiction. Habeas corpus cannot be utilized as a substitute for an appeal. State ex rel. Engebritson v. Circuit Court, S.D., 11 N.W.2d 659, 150 A.L.R. 739; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036. Mere errors or irregularities in the proceedings of a court having jurisdiction are not reviewable.
Chapter 119, Laws 1927, authorizing a more severe penalty to be inflicted on one who is a persistent offender, did not create a new or independent crime. State v. DeMarsche, 68 S.D. 250, 1 N.W.2d 67. It did not inflict additional punishment for a prior offense or authorize conviction on charge of being an habitual criminal. A prior conviction is not an element of an offense charged, but is merely a matter of aggravation going to the punishment to be imposed. Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917; Goodman v. Kunkle, 7 Cir., 72 F.2d 334; Kuwitzky v. O'Grady, 135 Neb. 466, 282 N.W. 396; People v. Atkinson, 376 Ill. 623, 35 N.E.2d 58. Discussing the question, the Supreme Court of the United States in Graham v. State of West Virginia, supra [224 U.S. 616, 32 S.Ct. 585], said: A similar view was expressed...
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