Hudson v. Youell, 2494.

• Decision Date: 24 November 1941
• Docket Number: No. 2494.,2494.
• Citation: 17 S.E.2d 403,178 Va. 525
• Parties: HUDSON. v. YOUELL, Superintendent of Virginia State Penitentiary.
• Court: Virginia Supreme Court

178 Va. 525

17 S.E.2d 403

HUDSON.

v.YOUELL, Superintendent of Virginia State Penitentiary.

No. 2494.

Supreme Court of Appeals of Virginia.

Nov. 24, 1941.

Rehearing Granted Jan. 26, 1942.

GREGORY, J., CAMPBELL, C. J., and EGGLESTON, J., dissenting.

Error to Hustings Court of City of Richmond; John L. Ingram, Judge.

Habeas corpus proceeding by William P. Hudson against Rice M. Youell, Superintendent of the Virginia State Penitentiary. To review a judgment which dismissed the petition on demurrer, the petitioner brings error.

Remanded with directions.

Argued before CAMPBELL, C. and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

W. A. Hall, Jr., of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., Edwin H. Gibson, Asst. Atty. Gen., and Walter E. Rogers, of Richmond, for defendant in error.

HUDGINS, Justice.

William P. Hudson, a convict, instituted habeas corpus proceedings in the trial court against Rice M. Youell, superintendent of the State penitentiary. From the judgment dismissing the petition on demurrer, petitioner sought and obtained this writ of error.

On January 2, 1934, the grand jury of the Hustings Court of the city of Richmond returned five indictments against petitioner. One indictment charged that he attempted to murder one P.. E. Munn on November 19, 1933. The other four indictments charged that petitioner burglarized the homes of J. E. Haws, F. E. Tray-lor, D. S. Ashton and Nellie Harris on different dates.

The following is certified to us to be the true record of the judgment pronounced against petitioner:

"In the Hustings Court of the City of Richmond,

"January 25, 1934.

"Commonwealth

v.

William P. Hudson, Dft.

"Indictment for Attempt Murder.

"Commonwealth

v.

William P. Hudson, Dft.

"Indictment for Burglary.

"Commonwealth

v.

William P. Hudson, Dft.

"Indictment for Burglary.

"Commonwealth

v.

William P. Hudson, Dft.

"Indictment for Burglary.

"Commonwealth

v.

William P. Hudson, Dft.

"Indictment for Burglary.

"The said defendant was this day led to the bar in the custody of the Sergeant of this city, and being arraigned upon each indictment, pleaded guilty of attempt murder as charged in the first case, and pleaded guilty of burglary in each of the other four cases against him. And the court having heard the evidence in each case, doth ascertain the term of confinement of the said defendant in the penitentiary at one year in the first case and at five years in each of the other four cases, making twenty-one years in all.

"Whereupon it being demanded of the said William P. Hudson if anything for himself he had or knew to say why the court should not now proceed to pronounce judgment against him according to law, and nothing being offered or alleged in delay thereof, it is considered by the court that the said William P. Hudson be confined in the penitentiary for one term of one year and four terms of five years each, said terms to run consecutively, making a total of twenty-one years, these being the periods by the court ascertained. It is further ordered that the above terms are to run consecutively with any other terms to which the said defendant may heretofore have been sentenced in this or any other court in this Commonwealth. Said terms to be credited by time spent in jail await-ing trial. And it is ordered that the sergeant of this city do, when required so to do, deliver the said defendant from the jail of this city to the superintendent of the penitentiary, in said penitentiary to be confined and treated in the manner prescribed by law.

"And thereupon the said William P. Hudson is remanded to jail.

"A copy, Teste:

"Walter Christian, Clerk."

Petitioner contends that this order is insufficient to hold him in custody for more than five years.

It seems evident that the trial judge contemplated imposing cumulative sentences totaling twenty-one years--one year on the indictment for attempted murder, referred to as the first case and named first in the caption--but there is nothing in the language of the order or the title to indicate the order of sequence of the sentences on the four indictments charging burglary. It may be inferred from the words, "pleaded guilty of attempt murder as charged in the first case * * *, and the court * * * doth ascertain the term of confinement * * * at one year in the first case and at five years in each of the other four cases, * * * said terms to run consecutively, " that the trial court intended petitioner to serve the one year sentence for attempted murder first and the sentences for burglary thereafter. But in what order should petitioner begin his term of servitude for the four burglaries? The indictments contain no serial numbers or other identifying marks tending to show the order of presentation or the order of trial. The words in the caption--"Commonwealth v. William P. Hudson, Indictment for Burglary"--are as descriptive of one as of any of the other three indictments. No one can ascertain, from examination of the four indictments charging burglary and the record of conviction, the sequence in which the accused was ordered to serve the terms of imprisonment.

The order in United States v. Patterson, C.C., 29 F. 775, 776, read: "The court do order and adjudge that the prisoner, Oscar L. Baldwin, be confined at hard labor in the state's prison of the state of New Jersey, for the term of five (5) years upon each of the three indictments above named, said terms not to run concurrently * * *."

Judge Bradley, speaking for the court, said: "If the prisoner is to be detained in prison for three successive terms, neither he, nor the keeper of the prison, nor any other person, knows, or can possibly know, under which indictment he has passed his first term, or under which he will have to pass the second or the third. If, for any reason peculiar to either of said indictments, as, for example, some newly-discovered evidence, should be a different face put upon the case, so as to induce the executive to grant the prisoner a pardon of the sentence on that indictment, no person could affirm which of the three terms of imprisonment was condoned.

"If a formal record of any one of the indictments, and the judgment rendered thereon, were, for any reason, required to be made out and exemplified, no clerk or person skilled in the law could extend the proper judgment upon such record. He could not tell whether it was the sentence for the first, the second, or the last term of imprisonment. * * *

"The inherent vice of being insensible and incapable of application to the respective terms, without specifying the order of their succession, * * * exist(s). The joint sentence is equivalent to three sentences, one on each indictment. One of them is applicable to the indictment for misapplication of funds; but, if they are successive, which one? That which is first to be executed, or that which is secondly or thirdly to be executed? No intelligence is sufficient to answer the question. A prisoner is entitled to know under what sentence he is imprisoned. The vague words in question furnish no means of knowing. They must be regarded as without effect, and as insufficient to alter the legal rule that each sentence is to commence at once, unless otherwise specially ordered."

In United States v. Daugherty, 269 U. S. 360, 46 S.Ct. 156, 157, 70 L.Ed. 309, an accused was found guilty on three counts in one indictment and sentenced to a five-year term on each of the three counts. The order stated that the terms of imprisonment were to run consecutively and not concurrently. "Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded. Tested by this standard, the judgment here questionedwas sufficient to impose total imprisonment for15 years, made up of three 5-year terms, one under the first count, one under the second, and one under the third, to be served consecutively, and to follow each other in the same sequence as the counts appeared in the indictment. This is the reasonable and natural implication from the whole entry. The words, 'said term of imprisonment to run consecutively and not concurrently, ' are not consistent with a 5-year sentence."

Mr. Justice McReynolds distinguishes the Daugherty case from the case of United States v. Patterson, supra, on the ground that the indictment in the former case contained three different counts charging separate offenses, while in the Patterson case the three charges were made in three separate indictments. For that reason he stated, "we think the reasoning of that opinion [Patterson case] is not applicable to the present situation."

In Boyd v. Archer, Warden of United States Penitentiary, 9 Cir., 42 F.2d 43, 44, 70 A.L.R. 1507, it appeared that the accused was convicted on February 27, 1928, and sentenced to be imprisoned for fifteen months at McNeil's Island. A second judgment was entered by the same court on March 15, 1929, sentencing the accused to fifteen months' imprisonment at McNeil's Island, with this proviso: "Said term of imprisonment is to run consecutively and not concurrently with and in addition to the sentence heretofore imposed in a former cause." This judgment was attacked on two grounds: First, because it did not direct the order in which the two sentences should be served; and, second, because the words--"sentence heretofore imposed in a former cause"--were too indefinite and uncertain to identify the judgment and entry of the former cause. The court, after citing United States v. Daugherty, supra, and pointing to the fact that in the Daugherty case the three offenses were charged in separate counts in one indictment, said: "True, here the sentences are in two separate causes, whereas there they were on three counts of a single indictment. But logically that consideration cannot be controlling; the question in either case is of the intent...