Anderson v. McClintic
| Decision Date | 18 September 1934 |
| Docket Number | 7955. |
| Citation | 175 S.E. 857,115 W.Va. 329 |
| Parties | ANDERSON v. McCLINTIC, Warden. |
| Court | West Virginia Supreme Court |
Submitted September 11, 1934.
Error to Circuit Court, Marshall County.
Habeas corpus proceeding by Clarence Anderson against C. F McClintic, Warden of the West Virginia Penitentiary. To review an order refusing to discharge the relator, he brings error.
Affirmed.
Everett F. Moore, of Moundsville, for plaintiff in error.
Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen for defendant in error.
Relator a convict under sentence of imprisonment for life in the West Virginia penitentiary, seeking discharge, instituted a proceeding in habeas corpus in the circuit court of Marshall County against respondent, warden of said institution. From an order of said court refusing to grant him discharge relator was awarded writ of error by this court.
Relator's incarceration was imposed on him by the circuit court of Preston County November 28, 1928, under what might be termed our habitual criminal statute. As it then stood (it has since been amplified, Code 1931, 61-11-19), it read: "When any such convict (meaning a person convicted of an offense and sentenced to confinement therefor in the penitentiary) shall have been twice before sentenced in the United States to confinement in a penitentiary, he shall be sentenced to be confined in the penitentiary for life." Code 1923, c 152, § 24.
The indictment which forms the basis of the conviction whereon the life sentence was imposed charged the defendant therein (relator here) with malicious assault upon one D. W. Lee in Preston County in November, 1928. In this state, malicious assault is a felony punishable by confinement in the penitentiary from two to ten years. Code 1923, c. 144, § 9, Code 1931, 61-2-9.
The indictment further charges that in June, 1920, the defendant was arraigned in the circuit court of Preston County upon an indictment charging him with malicious assault upon one James McGee, and that thereupon "by consent of the prosecuting attorney said defendant confessed guilty to the unlawful shooting, which plea was accepted by the court, and upon his plea as aforesaid, said court then and there sentenced him, the said Clarence Anderson, for said offense charged in said indictment, to be confined in the penitentiary at Moundsville, West Virginia, for the term of one year, which said plea, conviction and sentence has never been vacated, set aside or reversed." Unlawful assault likewise is a felony, but it is a lesser offense than malicious assault.
It is also alleged in the said indictment upon which the relator was last convicted that in December, 1923, he was found guilty in the circuit court of Preston County of Malicious assault upon one Charles Wheeler; that he was then sentenced to penitentiary confinement for the term of seven years, which said sentence has never been vacated, set aside or reversed.
Following a trial upon the relator's plea of not guilty interposed to the said indictment of 1928, the jury returned the following verdict: "We, the jury, find the defendant guilty as charged in the indictment."
In support of his position that he is entitled to a writ of habeas corpus discharging him from the custody of the warden of the penitentiary, the relator's first point is that the said verdict was not sufficient to establish that theretofore he had been twice convicted of felony and confined in the penitentiary; that the only legal effect of the said verdict was to convict the defendant of the subsequent offense charged against him in the said indictment of 1928.
The above quoted habitual criminal statute as it stood in 1928, at the time of the relator's conviction and sentence to life imprisonment, should be read in connection with the immediately preceding section of said statute. It read: "When any person is convicted of an offense and sentenced to confinement therefor in the penitentiary, and it is alleged in the indictment on which he is convicted, and admitted, or by the jury found, that he had been before sentenced in the United States to a like punishment, he shall be sentenced to be confined five years in addition to the time to which he is or would be otherwise sentenced." Code 1923, c. 152, § 23. Substantially the same requirements have been expressly written into the habitual criminal statute since the trial of the relator in 1928. Code 1931, 61-11-19.
Granting that under an indictment for a felony charging prior felony convictions and penitentiary sentence therefor, a special jury finding upon the question of prior conviction and confinement would contribute to clarity and precision, the problem is here presented as to whether such special finding is indispensable to the imposition of the increased statutory penalty. We are of opinion that such special finding by the jury is not absolutely requisite...
To continue reading
Request your trial