Goodman v. Kunkle
| Decision Date | 25 July 1934 |
| Docket Number | No. 5141.,5141. |
| Citation | 72 F.2d 334 |
| Parties | GOODMAN v. KUNKLE, Warden. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Casper William Ooms, of Chicago, Ill., for appellant.
Philip Lutz, Jr., Atty. Gen., and Joseph P. McNamara, Asst. Atty. Gen., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
The District Court denied appellant's petition for habeas corpus to obtain his discharge from the Michigan City, Ind., state prison, where he is serving a life term of imprisonment under judgment and sentence in 1923 of the St. Joseph county, Ind., superior court, and this appeal followed.
The contention is that appellant is being deprived of his liberty without due process of law in contravention of the Fourteenth Amendment to the Constitution of the United States, and is entitled to be discharged on habeas corpus. The petition having been denied upon its face, we are concerned only with its sufficiency.
For appellee it is contended that, while the petition may disclose the intervention of errors in the entry of judgment, the judgment is not collaterally assailable by habeas corpus.
The conviction was predicated upon an indictment returned in 1923, charging appellant, in count 1, with feloniously breaking into and entering a dwelling in the nighttime with intent to steal goods and chattels; and, in count 2, with feloniously stealing goods and chattels, etc. Then followed a charge beginning with these words: "Count 3. And the aforesaid Grand Jury * * * do further present that John P. Goodman has previous to this indictment been convicted, sentenced and imprisoned in penal institutions three times, that his record is as follows:" Then follows the statement that in 1901 he was received at the state reformatory at Jeffersonville, Ind., to serve a three-year sentence for petty larceny, and there served to the expiration of the sentence; that in 1904 he was received at the state penitentiary at Joliet, Ill., to serve from one to twenty years for burglary, from which institution he was paroled in 1910; that in 1910 he was received at the Ohio state penitentiary to serve eighteen years for burglary and larceny of an inhabited dwelling, from which institution he was discharged in 1919.
The verdict of the jury was: "We, the Jury, find the defendant, John P. Goodman, guilty of burglary as charged in count one of the indictment, and find his age to be 39 years, and that the defendant is an habitual criminal."
Thereupon the court pronounced the judgment and sentence that the defendant "be and he hereby is sentenced to imprisonment in the Indiana State Prison for life and that he be and he hereby is disfranchised from holding any office of trust or profit for a period of twenty-five (25) years."
It is contended for appellant that he was never convicted under count 3, wherein alone the former convictions were alleged, and that any judgment predicated on such assumed conviction is void; that finding him to be "an habitual criminal" is not a conviction under the Indiana habitual criminal statute; that the sentence fails to follow the statute, in that it did not sentence him for the specific crime alleged in count 1; that, therefore, the court was without jurisdiction or power to impose the sentence which it did impose, and the judgment and sentence are void, and he is thereby deprived of his liberty without due process of law, and habeas corpus is the proper proceeding for procuring his release.
The Indiana statute (Burns' 1926) respecting habitual criminals prescribes:
Habitual criminality is a state, not a crime. The so-called "count 3" is not, in fact, a separate "count" in the sense in which that term is customarily employed. Habitual criminal statutes, such as that of Indiana, do not create or define a new or independent crime, but they prescribe circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous criminalities as they are alleged and found. This was definitely decided in Barr v. State (Ind. Sup.) 187 N. E. 259. In McDonald v. Massachusetts, 180 U. S. 311, 21 S. Ct. 389, 390, 45 L. Ed. 542, the court, in considering a statute imposing greater punishment because of prior convictions for crimes, said: "The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only."
To substantially like effect is Graham v. West Virginia, 224 U. S. 616, 32 S. Ct. 583, 56 L. Ed. 917, and we had occasion to follow these cases and so declare in McCarren v. United States (C. C. A.) 8 F.(2d) 113.
While it is highly probable that in finding appellant to be "an habitual criminal" the jury deemed this to be tantamount to a finding that the allegations of so-called "count 3" were sustained, yet the finding in this respect fails to comply with the requirements of the Indiana habitual criminal statute. The comment of the Indiana Supreme Court in Kelley v. State (Ind. Sup.) 185 N. E. 453, 455, is clear, although the form of the verdict to comply with the statute was not there in issue. The court said: "To authorize a life sentence, the previous convictions, sentences, and imprisonments must be described specifically, and the jury must find that the defendant was convicted, sentenced, and imprisoned in the instances described, and not otherwise."
It also seems clear that in the imposition of sentence section 2340, supra, was not followed as to its requirement that "the trial court, after passing sentence of imprisonment for a specific term, as prescribed by the statute, shall proceed to sentence the defendant to imprisonment for his or her life." The court did not pass the statutory sentence for the specific crime charged in count 1, but imposed the sole sentence of life imprisonment — a sentence which the specific offense of which appellant was convicted does not carry.
Whether such noncompliance with the Indiana statute deprived the court of its jurisdiction, and rendered judgment and sentence void and the imprisonment to be without due process of law, and whether such a judgment and sentence are collaterally assailable by habeas corpus, have been often considered by the Indiana Supreme Court.
Baker v. Krietenstein, 185 Ind. 693, 114 N. E. 445, involved habeas corpus to discharge from imprisonment on a sentence of 150 days in the county jail and $100 fine where there was statutory power to impose but one penalty, which was commitment to the state farm. The court held that the judgment, though erroneous, was not void and was not subject to collateral attack. The opinion followed Lowery v. Howard, 103 Ind. 440, 3 N. E. 124, where habeas corpus had been brought to discharge Lowery, whom the court on plea of guilty for murder had sentenced to life imprisonment. The contention was, and the court held, that such a sentence could be imposed in Indiana only by a jury, but that nevertheless the judgment could not be collaterally attacked. State ex rel. Flatter v. Hiatt, 192 Ind. 154, 135 N. E. 577, 578, which followed Baker v. Krietenstein, supra, was also a habeas corpus proceeding to relieve from a jail sentence where the statute specified as a penalty commitment to a state farm. The court held that habeas corpus would lie "only to set aside the action of a court or judge who had...
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...does not make the judgment void. The record in this appeal presents an issue somewhat similar to the issue decided in Goodman v. Kunkle, 7 Cir., 1934, 72 F.2d 334, 338. Goodman had been charged in the the Superior Court of St. Joseph County, Indiana, with burglary, larceny and being an habi......
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