Borders v. Alexander

• Court: Oregon Supreme Court
• Writing for the Court: Belt
• Citation: Borders v. Alexander, 183 Or. 488, 194 P.2d 414 (Or. 1948)
• Decision Date: 08 June 1948
• Parties: BORDERS <I>v.</I> ALEXANDER

183 Or. 488

194 P.2d 414

BORDERS

v. ALEXANDER

Supreme Court of Oregon.

Argued May 13, 1948.

Affirmed June 8, 1948.

Criminal law — Judgment — Sentence — Entire record

1. Judgment imposing sentence must be viewed in light of entire record, and when so construed, through judgment as entered did not expressly so state, record showed that defendant was sentenced for crime of forgery, and not for being an habitual criminal. O.C.L.A. §§ 26-2801 to 26-2804.

Criminal law — Information — Previous convictions — Independent charge

2. Proceeding instituted by filing information charging previous convictions of felony involved no independent charge of commission of a crime, but was merely a continuation of original prosecution to show the character of defendant in order to determine the penalty to be imposed for crime of which he was convicted. O.C.L.A. §§ 26-2801 to 26-2804.

  See 24 C.J.S., Criminal Law § 1962
                  14 A.L.R. 989
                  15 Am. Jur. 105
                

Appeal from Circuit Court, Marion County.

E.M. PAGE, Judge.

R.W. DeArmond, of Salem, argued the cause for appellant. With him on the brief were Otto K. Paulus and Joseph M. Devers, Jr., of Salem.

Fred A. Miller, Assistant Attorney General, of Salem, argued the cause for respondent. With him on the brief was George Neuner, Attorney General, of Salem.

Before ROSSMAN, Chief Justice, and LUSK, BELT, KELLY, BAILEY and BRAND, Justices.

Habeas corpus proceeding by Harley A. Borders against George Alexander. From a judgment dismissing the writ, petitioner appeals.

AFFIRMED.

BELT, J.

This is a habeas corpus proceeding challenging the legality of the imprisonment of the petitioner, who is now, and ever since December 21, 1943, has been confined in the Oregon state penitentiary under sentence of ten years imposed upon him by the Circuit Court for Clackamas county. From a judgment of the Circuit Court for Marion county dismissing the writ, the petitioner appeals.

It appears from the record that the petitioner, Harley A. Borders, was, on the 14th day of December, 1943, convicted in Clackamas county of the crime of forgery, and, on December 20, 1943, was sentenced to serve a term in the penitentiary of not more than five years. On the same day that the sentence was imposed, the district attorney for Clackamas county, pursuant to § 26-2804, O.C.L.A., filed an Information in such proceeding charging that petitioner had previously been convicted of the following felonies: (1) Crime of rape, committed in Iowa, on June 3, 1930; (2) Crime of forgery, committed in Marion county, Oregon, on February 9, 1940; and (3) Crime of forgery, committed in Clackamas county, Oregon, on December 14, 1943. Defendant admitted his identity relative to the last two charges of crime in the Information, but denied the charge of rape. The Court on motion of the district attorney dismissed the charge of rape as alleged in the Information.

On the day after the Information was filed setting forth previous convictions of felonies, the Circuit Court for Clackamas county set aside and vacated the sentence of five years for forgery and, in lieu thereof, sentenced petitioner to serve a term in the penitentiary of not more than ten years as shown by the following judgment order:

"This matter coming on regularly for hearing at this time, this cause having heretofore been set for the passing of sentence on Wednesday the 22nd day of December, 1943; State of Oregon appearing by Stanley J. Mitchell, Deputy District Attorney for Clackamas County, Oregon, and the defendant appearing in person and by and thru his attorney, P.K. Hammond, and requested that sentence be pronounced against him at this time, the said defendant having heretofore been found by the court to be the same person previously convicted of felonies charged in an information filed herein by the District Attorney of Clackamas County, Oregon; the Court thereupon inquired of the above-named defendant if he had anything to say why sentence should not be pronounced against him, and he, the said defendant, answered showing no good or sufficient cause, and the Court being fully advised in the premises,

"NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the above-named defendant, Harley A. Borders, be imprisoned in the Penitentiary of the State of Oregon, for a period of not more than ten (10) years.

"Dated this 21st day of December, 1943.

                    "EARL C. LATOURETTE
                                                    Judge"
                

On the same day that the five-year sentence was vacated, petitioner requested the court to pronounce sentence against him "at this time," instead of Wednesday, December 22, 1943, or the time previously set, as recited in the above judgment order.

1. Petitioner asserts that the judgment order is void in that it appears therefrom that the sentence is based upon previous convictions of felonies and not upon the charge of forgery for which he was convicted. We agree that if petitioner was sentenced not for the crime of forgery, but on account of "previous convictions of felonies," the judgment would be void and that the writ would lie. We do not, however, so construe the record. It does not appear from the judgment that petitioner was being sentenced for being a habitual criminal. The judgment, as entered in the Journal, is loosely drawn and somewhat ambiguous, but it must be viewed in the light of the entire record, and, when so considered, we think it is clear that petitioner was sentenced for the crime of forgery.

In Pointer v. United States, 151 U.S. 396, 38 L.E. 208, 14 Sup. Ct. 410, it was urged that the sentence imposed therein did not state the offense of which the defendant was found guilty or that the defendant was guilty of any named crime. The United States Supreme Court, in...