Dean v. Skeen

• Decision Date: 29 April 1952
• Docket Number: No. CC789,CC789
• Citation: 31 A.L.R.2d 1180,137 W.Va. 105,70 S.E.2d 256
• Court: West Virginia Supreme Court
• Parties: , 31 A.L.R.2d 1180 DEAN, v. SKEEN.

Page 256

70 S.E.2d 256

137 W.Va. 105, 31 A.L.R.2d 1180

DEAN, v. SKEEN.

No. CC789.

Supreme Court of Appeals of West Virginia.

Submitted April 8, 1952.

Decided April 29, 1952.

Syllabus by the Court.

1. In a criminal prosecution for a felony, a pardon by the Governor of this State of a conviction or convictions for an offense or offenses punishable by confinement in the penitentiary, does not exempt the prisoner from increased punishment under the habitual criminal statute, Code, 61-11-18 and 19, as amended by Chapter 26, Acts of the Legislature, Regular Session, 1939, and as amended and reenacted by Chapter 31, Article 11, Acts of the Legislature, Regular Session, 1943.

2. 'Where a court has jurisdiction of the subject-matter and of the person, and it pronounces a severable judgment or sentence, one part of which is authorized by law and another distinct part is not so authorized, the prisoner will not be discharged on habeas corpus, when it does not appear that he has undergone the full punishment imposed by the legal portion of the sentence.' Ex parte Mooney, 26 W.Va. 36, Pt. 4 Syl.

Everett G. Cox, Moundsville, for petitioner.

Chauncey Browning, Atty. Gen., T. D. Kauffelt, Asst. Atty. Gen., for respondent.

RILEY, President.

In this proceeding in habeas corpus ad subjiciendum of Homer Jack Dean against Oral Skeen, Warden of the West Virginia penitentiary, instituted in the Circuit Court of Marshall County, the circuit court overruled the respondent's demurrer to the petition and on the joint motion of the parties certified two questions to this Court; (1) After a full pardon, can a former conviction be used in order to impose a sentence under the habitual criminal act; and (2) can a habeas corpus proceeding be maintained to set aside an illegal sentence before the expiration date of that portion of the sentence which the same court should have legally imposed?

During the October, 1933, term of the Common Pleas Court of Cabell County the petitioner, Homer Jack Dean, was sentenced to serve a two-year period in the State penitentiary at Moundsville for the commission of a felony, and at the January, 1937, term of the Intermediate Court of Kanawha County the petitioner was indicted and sentenced to serve five years in the State penitentiary. On March 10, 1945, the Governor of the State of West Virginia issued an unconditional pardon of the two offenses.

Later at the January, 1948, term of the Intermediate Court of Kanawha County the petitioner was indicted for grand larceny for the theft of an automobile, and upon a plea of guilty was sentenced to life imprisonment as an habitual criminal. The two prior felonies for which petition was sentenced and later pardoned by the Governor's unconditional pardon were used for the purpose of applying the habitual criminal statute in imposing the sentence of life imprisonment.

The conviction for grand larceny was had in June, 1948, and carries a penalty of from one to ten years in the penitentiary, so with earning good time petitioner would not be entitled to release until February 26, 1955; and by earning extra good time petitioner would not be entitled to release until June 22, 1953.

The respondent assigns as error the rulings of the circuit court in holding that: (1) The offenses for which petitioner has been pardoned may not be used as a basis for sentence under the habitual criminal act; and (2) in overruling the demurrer to the petition, as the petition on its face shows that petitioner has not served the portion of the sentence which the court had authority to impose for conviction of the theft of the automobile. These two assignments of error will be discussed seriatim.

The question whether a full pardon of a prior offense exempts the petitioner from the increased punishment of a life sentence under the habitual criminal statute, Code, 61-11-18 and 19, as amended by Chapter 26, Acts of the Legislature, Regular Session, 1939, and as amended and reenacted by Chapter 31, Article 11, Acts of the Legislature, Regular Session, 1943, should be decided in connection with the language used in the statute itself. Section 19 provides the procedure in the trial of persons for second and third offenses, and Section 18 provides, in part, that: 'When any person is convicted of an offense and is subject to confinement in the penitentiary therefor, and it is determined, as provided in section nineteen of this article * * * that such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the penitentiary for life.' Thus the statute provides for increased punishment in the case of a person who has been convicted one or more times of a crime punishable by confinement in a penitentiary, whether the offender is guilty or innocent of the prior offense or offenses. 'The purpose of the statute is to permit trial courts to protect society from habitual criminals by the imposition of more severe sentences than would be justified by the conviction for the offense under trial alone.' State v. Stout, 116 W.Va. 398, 402, 180 S.E. 443, 444.

Though the exact question has not been decided in this jurisdiction, this Court in State v. Fisher, 123 W.Va. 745, 748, 18 S.E.2d 649, and State ex rel. Coole v. Sims, 133 W.Va. 619, 629, 58 S.E.2d 784, 790, expressed the view that an unconditional pardon of a prior offense did not serve to destroy the historical effect of the conviction thereof. In State v. Fisher, supra, this Court, 123 W.Va. at page 748, 18 S.E.2d at page 651, said: '* * * we are not thereby concerned with the effect of a full pardon and with the question of whether under our law it results in the absolute restoration of citizenship to the extent that both the result and the fact of a former conviction in legal effect are rendered nonexistent, although in passing, we cannot refrain from observing that such a rule is plainly the result of a legal fiction and that a fiction which is contrary to a known and established fact is a dangerous foundation upon which to base a legal principle.' In State ex rel. Coole v. Sims, supra, the Court, 58 S.E.2d at page 790 of the opinion, said: '* * * It will not do to say, nor do any of the authorities say, that the granting of a pardon wipes out the conviction and renders the party innocent dating back to the time he was convicted. If that rule be followed then every person pardoned, for whatever reason, even though his conviction was based upon his confession of guilt, would be entitled to use that pardon as the basis for claiming compensation for the period in which he was confined under his conviction. Giving to the pardon of the Governor its fullest effect, it does not, we think, afford any basis whatever for a finding of innocence on the part of the relator. Neither the Governor of this State, nor the Court of Claims, nor the Legislature, has any constitutional power to pass upon the guilt or innocence of a person charged with a crime. That power rests, under our Constitution, in the judicial department of the State government.'

From a careful, though incomplete, examination of the authorities, both text and the decisions in other jurisdictions, we have ascertained that, according to the weight of authority, the fact that an accused was pardoned for a prior offense does not exempt him from the increased punishment...