Hudson v. Youell

• Decision Date: 13 April 1942
• Docket Number: Record No. 2494.
• Citation: 179 Va. 442
• Court: Virginia Supreme Court
• Parties: WILLIAM P. HUDSON v. RICE M. YOUELL, SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY.<SMALL><SUP>*</SUP></SMALL>

Page 442

179 Va. 442

WILLIAM P. HUDSON v. RICE M. YOUELL, SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY.^*

Record No. 2494.

Supreme Court of Virginia, Richmond.

April 13, 1942.

Present, All the Justices.

1. SENTENCE AND PUNISHMENT — Sentence — Should Reveal Intent of Court — Elimination of Every Possible Doubt Cannot Be Demanded. — Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who execute them, but the elimination of every possible doubt cannot be demanded.

2. SENTENCE AND PUNISHMENT — Imprisonment — Section 4786 of the Code of 1930 — Self-Executing in Imposing Consecutive Terms of Punishment. — Section 4786 of the Code of 1930, which provided that when any person was convicted of two or more offenses, before sentence was pronounced for either, the confinement to which he might be sentenced upon the second or subsequent conviction should commence at the termination of the previous term or terms of confinement, would have been self-executing in imposing consecutive terms of punishment, even had the court failed to declare the terms of imprisonment consecutive.

3. SENTENCE AND PUNISHMENT — Imprisonment — Code Section 5019 Must Be Read with and Give Way to Code Section 4786. — Section 5019 of the Code of 1936, stating that confinement shall commence from the date of the final judgment, must be read in conjunction with section 4786, providing for consecutive terms of imprisonment, and being general in its terms must give way to section 4786 whenever they conflict, the latter being specific in its terms.

4. SENTENCE AND PUNISHMENT — Sentence — Time of Execution Not an Essential Element of Sentence. — The law does not contemplate that the court in fixing the punishment shall also fix the beginning and ending of the period during which the imprisonment shall be suffered. The time fixed for executing a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, is not a part of the sentence at all. The essential portion of the sentence is the punishment, including the kind of punishment and the amount thereof, without reference to the time when it shall be inflicted. The sentence, with reference to the kind of punishment and the amount thereof, would, as a rule, be strictly executed. But the order of the court with reference to the time when the sentence shall be executed is not so material. Expiration of time without imprisonment is in no sense an execution of the sentence.

5. SENTENCE AND PUNISHMENT — Imprisonment — Generally Sentences Run Consecutively and Not Concurrently. — The general rule in Virginia is that sentences run consecutively and not concurrently.

6. SENTENCE AND PUNISHMENT — Imprisonment — Code Section 4786 — Sentences Run Consecutively in Absence of Express Direction. — Under the amendment of 1934 to section 4786 of the Code of 1936, the court is given express power to order sentences to run concurrently, but in the absence of express direction, they run consecutively.

7. SENTENCE AND PUNISHMENT — Imprisonment — Several Imprisonments for Several Felonies — Sentences Must Run Consecutively. — An accused who has been convicted of several felonies may be adjudged to undergo several imprisonments therefor, to commence, respectively, from and after the expiration of prior imprisonments adjudged against him. In other words, the sentences of imprisonment must run consecutively and not concurrently.

8. SENTENCE AND PUNISHMENT — Imprisonment — Code Section 4786 Does Not Require Court to State Sequence of Sentences — Statute is Self-Executing. — Section 4786 of the Code of 1936 does not, either prior to the amendment of 1934 or since, require the court to state sequence in its orders sentencing a defendant to imprisonment upon two or more convictions, but is silent on this subject. On the other hand, the legislative intent seems manifest that the statute was intended to be self-executing.

9. SENTENCE AND PUNISHMENT — Imprisonment — Order of Sequence Should Be Requested at Time of Sentence — Prisoner Cannot Be Freed on Mere Irregularity — Case at Bar. — In the instant case, a convict instituted habeas corpus proceedings against the superintendent of the state penitentiary contending that the order sentencing him to the penitentiary was insufficient to hold him in custody for more than five years, since no order of sequence was therein set out. A single judgment had been pronounced against petitioner on five indictments, one for attempted murder and four for burglary. The judgment did not state the sequence of the terms of servitude for the four burglaries but provided that petitioner 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, * * *." More than seven years after sentence had been imposed, petitioner filed his petition for a writ of habeas corpus.

Held: That if petitioner deemed an order of sequence necessary, he should have requested it at the time of his trial and sentence, and he would not be allowed to acquiesce in the error of the court, if it were error, for seven years and then free himself from the balance of the sentence on a mere irregularity.

10. HABEAS CORPUS — Scope of Remedy — Never Substituted for Writ of Error. — A writ of habeas corpus is never substituted for a writ of error.

11. SENTENCE AND PUNISHMENT — Imprisonment — Terms Held to Run Consecutively — Case at Bar. — In the instant case, a convict instituted habeas corpus proceedings against the superintendent of the state penitentiary contending that the order sentencing him to the penitentiary was insufficient to hold him in custody for more than five years, since no order of sequence was therein set out. A single judgment had been pronounced against petitioner on five indictments, one for attempted murder and four for burglary. The judgment did not state the sequence of the terms of servitude for the four burglaries but provided that petitioner 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, * * *."

Held: That the sentence complained of was a valid one for twenty-one years, and that the petition for a writ of habeas corpus was properly dismissed.

Error to a judgment of the Hustings Court of the city of Richmond. Hon. John L. Ingram, judge presiding.

The opinion states the case.

W. A. Hall, Jr., for the plaintiff in error.

Abram P. Staples, Attorney — General, Joseph L. Kelly, Jr., Assistant Attorney-General, Edwin H. Gibson, Assistant Attorney-General, and Walter E. Rogers, Special Assistant, for the defendant in error.

GREGORY, J., delivered the opinion of the court.

This case was argued and submitted to this court at the October, 1941, session in Richmond, and the opinion of the majority, prepared and handed down by Mr. Justice Hudgins at the November, 1941, session of the court. (See 178 Va. 525, 17 S.E.(2d) 403). Thereafter, the Commonwealth filed its petition for a rehearing, and after mature consideration the prayer of the petition was granted, and the case was reheard at the February, 1942, session of the court in Richmond.

The record and petition bring under review the judgment of the trial court upon a writ of habeas corpus, denying petitioner a discharge from custody.

On January 25, 1934, William P. Hudson, petitioner, was led before the bar of the Hustings Court of the City of Richmond and arraigned upon five separate indictments — one for "attempt" murder and four for burglarizing four separate dwellings. The sentence of the court was in the following language:

"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 awaiting 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."

No objection was made by Hudson at this time or at any other time to the sentence or the order carrying it into effect. No motion was made to have the sentence state the order of sequence of the terms of confinement.

On the 10th day of April, 1941, more than seven years later, William P. Hudson filed a petition for a writ of habeas corpus in the Hustings court of the city of Richmond, alleging that he was then being illegally detained; that the order of the court sentencing him to consecutive terms in the penitentiary was too vague for application since no order of...