Dye v. Skeen

• Decision Date: 12 December 1950
• Docket Number: No. 10278,10278
• Parties: , 24 A.L.R.2d 1234 DYE, v. SKEEN.
• Court: West Virginia Supreme Court

Page 681

62 S.E.2d 681

135 W.Va. 90, 24 A.L.R.2d 1234

DYE, v. SKEEN.

No. 10278.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1950.

Decided Dec. 12, 1950.

Syllabus by the Court

1. A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and error in a final judgment in a criminal case can not be considered or corrected in such proceeding; but if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding.

2. When it appears that a trial court, having jurisdiction of the crime for which the accused has been indicted and of the accused, is without jurisdiction, under a habitual criminal statute of that State, to impose a sentence of life imprisonment under a third indictment for a felony against an accused who, on the same day of a former term of court had been twice convicted of a crime punishable by confinement in a penitentiary, but has jurisdiction to impose a sentence which includes the maximum period of confinement of ten years for the crime charged in the third felony indictment and an additional period of confinement of five years for one prior felony conviction, a sentence of life imprisonment imposed upon an accused convicted under such third felony indictment, may be considered in a habeas corpus proceeding, and the portion of such sentence in excess of the valid sentence which the court has jurisdiction to impose, being void, may be controlled and nullified in such proceeding.

3. A person is convicted within the meaning of the habitual criminal statute of this State when he pleads guilty to an indictment which charges him with the commission of a crime punishable by confinement in a penitentiary and is sentenced to such confinement by a judgment which, even though erroneous, has become final because not challenged by writ of error or other appellate process within the period provided by law to apply to an appellate court for a review of such judgment.

4. Under a habitual criminal statute of this State which required the imposition of a sentence of life imprisonment upon the conviction of a felony of a person who had been twice before convicted of a crime punishable by confinement in a penitentiary, a trial court, upon the conviction of the accused of an offense, not punishable by life imprisonment, under a third felony indictment, is without jurisdiction to sentence the accused to life imprisonment when such sentence is based upon two prior convictions of the accused entered on the same day at a former term of court. In such circumstances the utmost valid sentence which may be imposed under such third felony indictment is a period of confinement which includes the maximum term of years provided by law for the crime charged in such indictment and an additional term of five years for one prior felony conviction; and that portion of the sentence of life imprisonment in excess of such valid sentence is void and may not be enforced.

William C. Marland, Atty. Gen., Londo H. Brown, Asst. Atty. Gen., for plaintiff in error.

S. Robert Reiter, Wheeling, for defendant in error.

HAYMOND, Judge.

This habeas corpus proceeding was instituted in the Circuit Court of Marshall County in October, 1949, by the petitioner, Harry Dye, a prisoner under a sentence of imprisonment for life in the West Virginia Penitentiary at Moundsville, in that county, to require the respondent, Orel J. Skeen, as its warden, to release him forthwith from confinement in that prison. The proceeding was heard upon the petition and its exhibits, the substance of which was embodied in the petition, upon the answer of the respondent, and upon a written stipulation entered into between the attorney for the petitioner and one of the attorneys for the respondent with reference to two felony indictments against the petitioner and a codefendant in the Circuit Court of Roane County and orders of that court upon those indictments at its May term, 1933. The judge of the circuit court, being of the opinion that the petitioner was illegally confined and should be immediately released, by judgment entered November 14, 1949, in vacation, ordered the respondent forthwith to release him from confinement in the penitentiary. To that judgment this Court granted this writ of error upon the petition of the respondent.

At the May term, 1933, of the Circuit Court of Roane County, two joint indictments for felony, designated as No. 1 and No. 2, were returned against the petitioner, Harry Dye, who was then under twenty one years of age, and Basil Alvis. One indictment charged them with breaking and entering, and entering without breaking, the dwelling house of John House and Nellie House, in that county, in April, 1933, and stealing goods of the value of $5.00. The other indictment charged them with breaking and entering, and entering without breaking, the dwelling house of Madge Hardin in that county, in March, 1933, and stealing goods of the value of $17.65. By order entered May 22, 1933, bearing the notation 'Upon Indictment for a Felony, No. 1', one of the cases was set for trial on May 31, 1933. On that day the petitioner, who appeared in person and by counsel, and his codefendant, Alvis, entered separate pleas of guilty to each of the two indictments. These pleas are shown by duplicate orders, in identical form, separately entered by the court, which do not specifically refer to or identify either indictment but contain the mere recital 'Upon an indictment for a felony', and by the notations 'Plea of guilty' on the back of each indictment. By these duplicate orders, the court, on May 31, 1933, sentenced the petitioner and his codefendant to commitment to and confinement in the West Virginia Industrial School for Boys until each of them attained the age of twenty one years, and directed that they be placed in the custody of the sheriff to be delivered to that institution. On June 1, 1933, during the same term of court, by duplicate orders separately entered, the court, in the absence of the defendants, vacated and set aside the duplicate orders of May 31, 1933, as to the petitioner, and sentenced him to confinement in the penitentiary of this State for a term of five years. The petitioner did not appeal from these orders and the inference is that he has served the sentences imposed by the court on June 1, 1933.

At the January term, 1943, of the Circuit Court of Roane County, the petitioner was again indicted for a felony. The indictment contained four counts. The first and second counts respectively charged the petitioner with forging a check for $5.00 and possessing and uttering a forged check for $5.00, and the third and fourth counts respectively set forth his prior convictions and sentences upon the two indictments returned against him in the Circuit Court of Roane County in 1933. Upon the trial the jury returned a general verdict of guilty and the court, finding that the petitioner had 'been twice before the trial of this case sentenced in this court to confinement in the penitentiary of the State of West Virginia,' by order entered January 29, 1943, imposed the sentence of imprisonment for life from which the petitioner seeks release in this proceeding.

The maximum penalty provided by law for the specific offense of which the petitioner was convicted in January, 1943, is confinement in the penitentiary for ten years, Code, 1931, 61-4-5; and at the time of the institution of this proceeding on October 19, 1949, he had served that portion of the sentence of life imprisonment.

By his assignments of error the respondent seeks reversal of the judgment of November 14, 1949, ordering the release of the petitioner, on these principal grounds: (1) The petitioner was sentenced under the indictments in the Circuit Court of Roane County in 1933, as a felon and not as a judvenile delinquent under Article 2, Chapter 49, of the Code of 1931; (2) the Circuit Court had the power during the same term of court to vacate the sentences originally imposed upon the petitioner at the May term, 1933, and to impose different and more severe sentences; (3) the action of the court in vacating the prior sentences and in imposing greater sentences at the same term, in the absence of the defendant, is a mere irregularity or error which does not invalidate the judgments entered by the court; (4) the character of the sentences imposed under the indictments in 1933 is immaterial and does not affect the convictions of the petitioner under those indictments, within the meaning of the habitual criminal statute, Sections 18 and 19, Chapter 26, Acts of the Legislature, 1939, Regular Session; (5) under an indictment for a felony in a criminal case in which the court has jurisdiction of the defendant and of the offense with which he is charged, and which indictment charges the defendant with prior convictions of crimes punishable by confinement in a penitentiary, the verdict of a jury, finding the defendant guilty as charged, is conclusive, unless set aside upon writ of error or other appellate process; and (6) the judgment of a court which has jurisdiction of the defendant and the offense with which he is charged, in a criminal case, can not be attacked in a habeas corpus proceeding.

In substance, the contentions of the petitioner, Dye, to sustain the judgment of the Circuit Court of Marshall County are: (1) The offenses for which the petitioner was sentenced by the Circuit Court of Roane County in 1933 are not felonies; (2) the sentences imposed by that court on June 1, 1933, are void; (3) the convictions in that court in 1933 are not valid prior convictions and do not form the basis, under the habitual criminal statute, for a sentence of life imprisonment in the trial of a subsequent indictment for a felony; and (4) a sentence of life imprisonment upon the trial of a subsequent indictment for a felony which charges two...