Gamron v. Jones
| Decision Date | 11 July 1947 |
| Docket Number | 32282. |
| Citation | 28 N.W.2d 403,148 Neb. 645 |
| Parties | GAMRON v. JONES. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The Habitual Criminal Act does not create a new and separate criminal offense for which a person may be separately sentenced.
2. Where a person convicted of a felony is sentenced for a period less than the minimum provided by law, such sentence is erroneous in failing to impose the minimum penalty, but is valid to the extent pronounced.
3. Habeas corpus will not lie to secure the release of the person until the sentence so imposed is served.
Walter R. Johnson, Atty. Gen., Erwin A. Jones, Asst. Atty. Gen., and Robert A. Nelson, Asst. Atty. Gen., for appellant.
Cook & Cook, of Fremont, for appellee.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE JJ., and TEWELL, District Judge.
On January 8 1946, an information was filed in the district court for Washington County, charging the plaintiff with the offense of chicken stealing. As a part of the same charge it was alleged that the plaintiff was an habitual criminal under section 29-2221, R.S.1943, in that he was convicted on May 19, 1939 of the crime of burglary and sentenced to serve 18 months in the penitentiary, and on May 15, 1943, he was convicted of stealing an automobile and sentenced to imprisonment for one year.
On the same day plaintiff pleaded guilty to the charge. The court ordered 'that said defendant be and he hereby is sentenced to serve a term of two years for chicken stealing, and It is further ordered that defendant Levi Gamron, be and he is hereby sentenced [148 Neb. 646] to 10 years as a habitual criminal * * *, sentence to run concurrently.' Plaintiff was committed to the penitentiary that day and has since been confined under the judgment.
By petition of habeas corpus, filed February 18, 1947, plaintiff sought his release. He charged that the judgment was null and void in that under section 28-519, R.S.1943 (the chicken-stealing statute), the maximum sentence which could be imposed on him was one year; that he had served more than one year; and that the district court for Washington County was without power to sentence him as an habitual criminal, citing Kuwitzky v. O'Grady, 135 Neb. 466, 282 N.W. 396. The defendant answered pleading the judgment and commitment.
The trial court held that the plaintiff had been given two separate sentences by the district court for Washington County--one for chicken stealing, and one as an habitual criminal; that the maximum sentence for chicken stealing (first offense) was one year, and that the term beyond one year was void; that the court had no authority to impose a separate sentence as an habitual criminal, and that the habitual criminal sentence was void. The plaintiff was ordered released from custody. Defendant appeals.
The positions of both parties here go to a construction of the sentence of the district court for Washington County. Defendant contends that there is but one sentence, and that in any event the sentence for two years is valid. Plaintiff contends, as he did in his petition, that there were two sentences; that the habitual criminal sentence is null and void; that the two-year sentence for chicken stealing is excessive to the extent of one year; and that having served more than one year, he is entitled to his release.
We see no reasonable basis for construing the judgment of ...
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