Castle v. Gladden

• Decision Date: 19 May 1954
• Citation: 270 P.2d 675,201 Or. 353
• Parties: CASTLE v. GLADDEN.
• Court: Oregon Supreme Court

Page 675

270 P.2d 675

201 Or. 353

CASTLE v. GLADDEN.

Supreme Court of Oregon.

Argued and Submitted Nov. 18, 1953.

Decided May 19, 1954.

Merlin Estep, Salem, for appellant. On the briefs were Hewitt, Estep & Sorensen, Salem.

Howard R. Lonergan, Asst. Atty. Gen., for respondents. With him on the briefs were Robert Y. Thornton, Atty. Gen., and Lloyd G. Hammel, Asst. Atty. Gen., Salem.

Before LATOURETTE, C. J., and ROSSMAN, LUSK, BRAND, TOOZE and PERRY, JJ.

LUSK, Justice.

This is an appeal by the plaintiff from a judgment of the Circuit Court dismissing a proceeding in habeas corpus and remanding the plaintiff to the custody of the warden of the Oregon state penitentiary.

The return to the writ averred that the plaintiff, Claude Castle, was and has been a prisoner in the penitentiary since July 24, 1941, by virtue of an arraignment and a judgment of the Circuit Court of the State of Oregon for the County of Polk dated July 24, 1941, a copy of which is attached to the return and which discloses that he was on that day sentenced to be imprisoned in the penitentiary for the term of his natural life under the Habitual Criminal Act upon a plea of guilty to an information charging that he had been theretofore convicted of four felonies.

Plaintiff filed a second amended traverse of the return in which he denied 'that the authority for the custody and the direct cause of the imprisonment of Claude Castle' was the judgment and life sentence under the Habitual Criminal Act, except as thereafter admitted or alleged; and affirmatively alleged that his imprisonment was illegal for the following reason, among others:

'At the time of issuance of the life sentence * * * Plaintiff had * * * previously been sentenced to serve a term of three years imprisonment upon the last conviction of which Plaintiff was accused in the Habitual Criminal proceeding; said prior sentence was legal and valid in all respects and it was not and never has been vacated; and Plaintiff has now served in full said three-year sentence.'

The traverse sets up a copy of the habitual criminal information which shows the following convictions of the plaintiff for felony: March 24, 1930, conviction in the Supreme Court of New York of the crime of rape, second degree; December 16, 1936, conviction in the Circuit Court of the State of Oregon for Marion County of the crime of uttering a forged instrument; October 26, 1937, conviction in the Circuit Court of the State of Oregon for Coos County of the crime of uttering a forged instrument; July 24, 1941, conviction in the Circuit Court of the State of Oregon for Polk County of the crime of larceny of livestock.

The traverse further alleges that the conviction in Coos County dated October 26, 1937, being the third of the above enumerated convictions, was for a crime committed on November 28, 1936, which was prior to the date of the second conviction, December 16, 1936, and that hence the plaintiff has not been convicted of four felonies within the meaning of the Habitual Criminal Act; that at the time of plaintiff's conviction and sentence upon the fourth felony charge both the sentencing court and the district attorney knew of all the convictions alleged in the habitual criminal information; that after his imprisonment in the penitentiary the prison authorities prevented his communicating with his legal counsel and so prevented his appealing to the Supreme Court of Oregon.

A demurrer to the traverse was sustained by the court and the questions on this appeal arise out of that ruling.

First. Failure to Vacate Previous Sentence.

The statute which governs this case is found in O.C.L.A. §§ 26-2801 to 26-2804. It was repealed by Oregon Laws 1947, ch. 585, and a new statute enacted, which is now ORS 168.010 to 168.060. O.C.L.A. § 26-2803 prescribed a penalty of life imprisonment upon conviction of a fourth felony. The language of this section will be more particularly noticed when we come to consider another contention of the plaintiff. Section 26-2804 was a procedural section. It provided that when a defendant had been convicted of a felony and it was subsequently found that he had been previously convicted of felonies 'the court shall sentence him to the punishment hereinbefore provided [in this instance, life imprisonment], and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated.' (Italics added.) According to the allegations of the traverse the three-year sentence imposed for the fourth felony has never been vacated and the plaintiff has fully served that sentence. His claim is that the court's failure to vacate the previous sentence rendered the sentence of life imprisonment illegal and void, leaving the three-year sentence previously imposed as the only valid sentence, and, as that has been fully served, he is entitled to his discharge.

The contention has support in Ex parte Broom (Broom v. Alexander), 198 Or. 551, 255 P.2d 1081. That was a habeas corpus proceeding in which the Circuit Court for Marion County had ordered the discharge of Broom, the plaintiff. Pending the appeal from that judgment and before the case was at issue here, the superintendent of the penitentiary, defendant in the habeas corpus proceeding, filed a motion in this court for an order authorizing him to remove the prisoner to the sentencing court, the Circuit Court for Polk County, in order that the record might be corrected. It appeared that Broom had been convicted of statutory rape in Polk County and sentenced to ten-years imprisonment, that thereafter he had been sentenced by the same court to life imprisonment as an habitual criminal but that the previous sentence of ten-years imprisonment had never been vacated, and the correction of the record sought to be made was the vacation of that sentence in accordance with the requirement of O.C.L.A. § 26-2803. The motion was met by the contention of the prisoner that the court was without power to allow it because he was entitled to his freedom as a result of the judgment of discharge of the Circuit Court for Marion County. He urged that the appeal did not stay the execution of the judgment, and this was the question argued in the briefs supporting and opposing the allowance of the motion. Upon an examination of the record, however, the fact was disclosed that the prisoner had already served ten years in the penitentiary, and we denied the motion on the ground that the habitual criminal sentence was void because the sentence of ten years in the penitentiary had not been vacated, and that was the only valid sentence and it had been fully served. We further held that a sentence that had been fully served could not be vacated. In this view we concluded that the appeal had become moot and should be dismissed and that the prisoner was entitled to his discharge.

The Attorney General earnestly argues that the Broom case was wrongly decided and that we should re-examine the grounds of our judgment and overrule it. The record in this case, however, discloses a fact which was not present in the Broom case and which is controlling, regardless of the criticism of that decision. The second amended traverse alleges:

'On July 24, 1941, at the time when Plaintiff was convicted of and sentenced for the last crime charged in the information a copy of which is referred to herein as 'Exhibit A', both the District Attorney and the Court that imposed the three-year sentence for said last crime were fully advised and informed of all of the prior convictions set out in the information upon which the Habitual Criminal proceedings were based.'

The foregoing allegations are admitted by the defendant's demurrer.

It is the plaintiff's contention that the court's knowledge of the prior convictions, when it imposed the three-year sentence for the principal offense of larceny of livestock upon the fourth conviction, deprived the court of jurisdiction to impose the sentence of life imprisonment prescribed by the Habitual Criminal Act. We think that the result is directly the opposite, that in those circumstances the court lost power to pass the original sentence and was charged with the mandatory duty to impose a sentence of life imprisonment.

As this and other courts have frequently said, the Habitual Criminal Act creates no offense, but merely provides a proceeding to determine the penalty to be imposed on the main charge. Broom v. Alexander, supra, 198 Or. at page 559, 255 P.2d at pages 1084, 1085, and cases cited. The increased penalty, where the fact of previous conviction is established, is mandatory. Macomber v. State, 181 Or. 208, 218, 180 P.2d 793. As stated by the Court of Appeals of New York in Dodd v. Martin, 248 N.Y. 394, 399, 162 N.E. 293, 295, 'The Legislature has provided a mechanistic rule to take the place of the discretionary powers of the judge in passing sentence on second offenders.' Under O.C.L.A. § 26-2804 an information accusing a person of previous convictions may be filed 'at any time, either after sentence or conviction'. It is the duty of the district attorney to file such an information when his attention is called to such previous convictions, and the duty of prison wardens, probation, parole, police or other officers who know that a person charged with or convicted of a felony has been previously convicted to report the facts to the district attorney of the county from which he was sentenced. Upon filing of the information 'the court in which such conviction was had shall cause the said person, whether confined in prison or otherwise, to be brought before it' for a hearing, and, if he be found to be the person who had been previously convicted, as charged in the information, the court must impose sentence as provided in the Act and vacate the previous sentence, if one has already been passed, deducting from the new sentence time actually served on the vacated sentence.

We took our Habitual...