Davis v. O'Grady

• Decision Date: 22 March 1940
• Docket Number: 30759.
• Citation: 291 N.W. 82,137 Neb. 708
• Parties: DAVIS v. O'GRADY.
• Court: Nebraska Supreme Court

291 N.W. 82

137 Neb. 708

DAVIS v. O'GRADY.

No. 30759.

Supreme Court of Nebraska.

March 22, 1940

Syllabus by the Court.

1. The habitual criminal law of this state (Comp.St.1929, secs 29-2217 and 29-2218) does not set out a distinct criminal offense, but provides that the repetition of criminal conduct aggravates the guilt and justifies heavier penalties.

2. Section 29-2217, Comp.St.1929, of such law does not contravene sections 3, 9, or 12 of article I of the Constitution of Nebraska.

3. " Habeas corpus is a collateral, not a direct proceeding, when regarded as a means of attack upon a judgment sentencing a defendant." Hulbert v Fenton, 115 Neb. 818, 215 N.W. 104.

4. The judgment or sentence of a court of record in a criminal case, when challenged by habeas corpus, is supported by the usual presumptions of validity and regularity. To obtain release from a sentence of imprisonment by habeas corpus, such sentence must be absolutely void.

5. Where an information charges distinct offenses in two or more counts, and where a defendant pleads " guilty" thereto, generally, he cannot complain in a habeas corpus proceeding of a sentence thereon which imposes a penalty applicable to either offense without designating on which count it is based. Under these circumstances, a sentence and judgment upon an information containing several counts need not designate upon which count it is based.

6. We are committed to the doctrine that habeas corpus is never allowed as a substitute for an appeal or proceeding in error.

7. " The constitutional right of accused to have the assistance of counsel may be waived, and a waiver will be implied where accused, being without counsel, fails to demand that counsel be assigned him." 16 C. J. 821.

8. " A person charged with crime may, by a judicial confession of guilt, waive all the rights secured to him by section 11, article I of the Constitution." McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540.

Appeal from District Court, Lancaster County; John L. Polk, Judge.

Habeas corpus proceeding by Otha Davis against Joseph O'Grady, warden of the Nebraska State Penitentiary at Lancaster, Lancaster county, Neb. From an adverse final order denying relief, the relator appeals.

Order affirmed.

The judgment or sentence of a court of record in a criminal case is supported by the usual presumptions of validity and regularity when attacked in a habeas corpus proceeding.

Otha Davis, pro se.

Walter R. Johnson, Atty. Gen., and George W. Ayres, Asst. Atty. Gen., for appellee.

Heard before SIMMONS, C. J., ROSE, CARTER, MESSMORE, and JOHNSEN, JJ., and ELLIS, District Judge.

PER CURIAM.

This is an appeal from a final order made in the district court for Lancaster county, upon a petition for a writ of habeas corpus presented thereto by Otha Davis, against Joseph O'Grady, warden of the Nebraska state penitentiary. Such order denied the issuance of the writ against the defendant, or any relief as in said petition prayed, for the reason " that the petition does not state a cause of action in favor of the petitioner or relator."

Included in relator's petition is a copy of an information filed against him in the district court for Howard county, Nebraska, by the duly elected, qualified, and acting county attorney of such county. It contained two counts. In the first count, in appropriate terms, Davis is charged with the crime of stealing, on or about the 4th day of November, 1936, 52 bushels and 10 pounds of wheat of the value of $56.85, the personal property of Mary Sack and Julius Iwanski. In the second count he is charged, in appropriate terms, with the crime of stealing, on or about the 25th day of November, 1936, 56 bushels and 10 pounds of wheat of the value of $64.03, the personal property of Mads Madsen. It is also alleged in each count of such information that the relator herein had twice, prior to each of the thefts charged therein, been convicted of theft, and had in each instance been sentenced to, and served a term in, the Nebraska state penitentiary; these allegations merely establishing his status as an habitual criminal on the dates of the commission of the offenses set forth in this information. It further appears in relator's petition that, after the filing of said information, the following proceedings were had in the district court for Howard county, Nebraska, viz.:

" Judgment.

And, now, on this 15th day of December, 1936, the defendant being present in court in the custody of the deputy sheriff, and announced he was ready to plead to the information. Whereupon the information was read to the defendant by Charles Dobry, County Attorney of said county, and said defendant entered a plea of guilty. Statement of the defendant was taken. Defendant was thereupon asked if he has anything further to say why sentence should not be pronounced upon him, and he said he had not.

It is therefore considered and adjudged by the court that the defendant be and he hereby is sentenced to the State Penitentiary at Lancaster, in Lancaster county, Nebraska, at hard labor, Sundays and Holidays excepted, for a period of ten (10) years, solitary confinement to be no part of this sentence.

Edwin P. Clements, District Judge."

It further appears that the relator is now being held in the Nebraska state penitentiary in accordance with the foregoing sentence.

The relator challenges the validity of the habitual criminal statute of the state of Nebraska, Comp.St.1929, sec. 29-2217 as in conflict with article I, sec. 3, article I, sec. 9, article I, sec. 12, of the Constitution of Nebraska, and with article V and article VIII of the amendments to the Constitution of the United States. He also contends that the pretended judgment and sentence is null and void, in that it does not specify the offense of which petitioner was convicted, as required by section 20-1310, Comp.St.1929; and as a final reason the relator alleges that he was not represented by counsel in the trial of his case.

This court is committed to the doctrines, viz.:

The legislature may enact an habitual criminal law punishing habitual offenders.

The habitual criminal law does not set out a distinct crime, but provides that the repetition of criminal conduct aggravates the guilt and justifies heavier penalties.

The fact that a defendant has been guilty of a second felony does not make him guilty under the habitual criminal law of an offense for which he may be separately sentenced, but increases the punishment for the last felony.

" Habitual criminality" is, under the habitual criminal law, a state rather than a crime, and warrants greater punishment because of past conduct.

In the discussion of this question, Mr. Justice Hughes of the Supreme Court of the United States, in Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 585, 56 L.Ed. 917, employed the following language, viz.: " The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted. Statutes providing for such increased punishment were enacted in Virginia and New York as early as 1796 and in Massachusetts in 1804; and there have been numerous acts of similar import in many states. This legislation has uniformly been sustained in the state courts. (Ross's Case, 2 Pick. [Mass.] 165, 170; Plumbly v. Commonwealth, 2 Metc. [Mass.] 413, 415 * * *)."

In Kuwitzky v. O'Grady, 135 Neb. 466, 282 N.W. 396, 399, this court approved the following pronouncement, viz.:

" An habitual criminal statute is sound in principle and sustained by reason. The legislature may well enact such a law to permit law enforcement officers to take into consideration the persistence of an offender in his criminal course. That the defendant has been guilty of a second felony does not make him guilty of an offense for which he may be separately sentenced, but, upon proof that the habitual criminal statute applies to his case, he may have his punishment for the last felony of which he has been convicted increased as provided by law. 8 R.C.L. 271, secs. 284, 285; Mundon v. State, 196 Wis. 469, 220

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