Little v. Gladden

• Decision Date: 02 August 1954
• Parties: LITTLE v. GLADDEN.
• Court: Oregon Supreme Court

Page 443

273 P.2d 443

202 Or. 16

LITTLE v. GLADDEN.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 2, 1954.

Decided Aug. 2, 1954.

Merlin Estep, Jr., Salem, argued the cause for appellant. On the briefs were Hewitt, Estep & Sorensen, Salem.

Lloyd G. Hammel, Asst. Atty. Gen., argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

Before LATOURETTE, C. J., and LUSK, BRAND and TOOZE, JJ.

LUSK, Justice.

Gordon Sayre Little, a prisoner in the Oregon state penitentiary, filed a petition for a writ of habeas corpus in the Circuit Court for Marion County. The writ was issued, the case put at issue, and after a hearing the court entered an order dismissing the proceeding and remanding the prisoner. Plaintiff has appealed.

It appears from the record that the plaintiff on March 27, 1943, was sentenced by the Circuit Court for Marion County to serve five years in the penitentiary on a conviction of burglary with credit for time served in the county jail. The number of this case was 30658. On the same day the plaintiff was sentenced by the same court to serve three years in the penitentiary on a conviction of forgery, such sentence to commence at the expiration of the five-year term in Case No. 30658. The number of the forgery case was 30650. On April 16, 1943, the district attorney for Marion County filed an information in that court under the Habitual Criminal Act charging the plaintiff with having committed seven felonies. Two of these were the burglary and forgery convictions just mentioned. The other five were prior convictions, the first and second in Oregon, the third and fourth in Arizona, and the fifth in Idaho. The number assigned to this proceeding was 30723.

There was a jury trial on the charges set forth in the information under the Habitual Criminal Act. The jury found that the plaintiff was the same person who had been convicted of the felonies enumerated, and thereupon the court entered judgment as follows:

'Now on this 3rd day of July, 1943, this being the time fixed for the imposition of sentence upon the defendant, Gordon Sayre Little, * * * and new based upon the verdict of the jury, which jury found that the defendant, Gordon Sayre Little, has been convicted of seven felonies, and the Court being now fully advised in the premises,

'It is therefore ordered and adjudged by the Court that the defendant, Gordon Sayre Little, is guilty of violation of the Habitual Criminal Act and that he be confined in the Oregon State Penitentiary, as a prisoner, without limitation of time, the maximum of said sentence being for the balance of his natural life. The State to recover its costs and disbursements herein.'

The return of the warden of the penitentiary to the writ of habeas corpus averred that his authority, and the cause of plaintiff's imprisonment, were the three sentences of the Circuit Court for Marion County above described, to wit, the five-year sentence for burglary, the three-year sentence for forgery, and the life sentence in the habitual criminal case.

It is contended by the plaintiff that the life sentence is void because it is a sentence for a nonexistent crime. We have repeatedly held that the Habitual Criminal Act creates no new offense but merely provides a proceeding by which to determine the penalty to be imposed on one previously convicted of a crime. Castle v. Gladden, Or., 270 P.2d 675, and cases cited. In other words, it is not a crime to be an habitual criminal. It is, rather, a status which makes one convicted of a felony liable to a heavier penalty than the law, but for the proof of that status, would authorize. In the case of one who has been four times convicted of felonies that penalty, under the statute in effect in 1943, was life imprisonment. O.C.L.A. § 26-2803. The procedure for determining whether the increased penalty must be imposed is set forth in O.C.L.A. § 26-2804. When it is found, in accordance with that procedure, that a person convicted of a felony had theretofore been convicted of three other felonies, the mandatory penalty for the fourth offense is life imprisonment. (It, of course makes no difference that, as in this case, there are more than three previous felony convictions.) The proceeding in which that determination is made is simply a continuation of the case in which the defendant had previously been found guilty of a fourth felony. Borders v. Alexander, 183 Or. 488, 493, 194 P.2d 414. And, where a penalty under the statute prescribing the specific punishment for that offense has been imposed, the sentencing judge is required to 'vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated.' O.C.L.A. § 26-2804. In this case there were two convictions on either one of which the plaintiff might have been sentenced to life imprisonment under the Habitual Criminal Act. These were the convictions of burglary and forgery, both on March 27, 1943. The former was the sixth and the latter the seventh conviction. It is impossible to determine from this record whether the sentence of life imprisonment was for burglary, forgery, or either. Had either of the previous sentences been vacated the difficulty might not be here, but the court neglected to comply with that direction of the statute. Nor does the language of the sentence give us any light. It recites 'that defendant, Gordon Sayre Little, has been convicted of seven felonies' and adjudges that he 'is guilty of violation of the Habitual Criminal Act', and orders him confined in the state penitentiary for the balance of his natural life. For all that appears the sentence imposed was, as the judgment states, for a violation of the Habitual Criminal Act by the commission of seven felonies and not for the crime of burglary or the crime of forgery. The case numbers of the various proceedings add to the difficulty. The burglary and forgery prosecutions, and the habitual criminal proceeding, each bear separate numbers. This fact 'suggests, though it may not conclusively prove, that the information was treated as a charge of a separate offense.' Broom v. Alexander, 198 Or. 551, 559, 255 P.2d 1081, 1085. In Borders v. Alexander, supra [183 Or. 488, 194 P.2d 415], it was argued that the judgment in an habitual criminal proceeding was 'based upon previous convictions of felonies' and not upon the crime of forgery of which the prisoner had been last convicted. It appeared in that case that a sentence of five years in the penitentiary for forgery, a third felony conviction, had been pronounced by the court, and afterwards that an information under the Habitual Criminal Act was filed, and that the court entered a judgment in that proceeding which recited that the defendant was the same person 'previously convicted of felonies' charged in such information and sentenced him to ten years in the penitentiary. We held that while the judgment was 'loosely drawn and somewhat ambiguous' yet it sufficiently appeared that the ten-year sentence was imposed for the crime of forgery and not for the crime of being an habitual criminal, which is no crime at all. In arriving at that conclusion we applied the established rule that the objection to a sentence on the ground that it does not state or does not sufficiently describe the offense of which the defendant was found guilty, or that the defendant was guilty of any named crime, is technical rather than substantial, and that the whole record may be looked to for the purpose of supplying a deficiency at a particular place. If 'the record shows everything necessary to justify the punishment inflicted' that is sufficient. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 418, 38 L.Ed. 208. One of the controlling facts in the Borders case was that the court, in compliance with the requirement of the statute, vacated the previous sentence, thus clearly indicating the intention that the new sentence was imposed as punishment for the crime of forgery for which the previous sentence had been imposed. In addition, the record in the Borders case shows that there was only one crime for which a sentence under the Habitual Criminal Act could have been passed. In the case before us, as already stated, the plaintiff had been convicted of two crimes, for either one of which the court could have imposed a life sentence under the Habitual Criminal Act. Neither of the sentences for those crimes was vacated. The language of the habitual criminal judgment itself indicates an intention to impose sentence for the 'crime' of being an habitual criminal and there is no evidence anywhere else in the record of a different intention.

It follows that the sentence of the plaintiff to life imprisonment is void. The previous sentences of five years for burglary and three years for forgery have been completely served, and it remains to determine whether the plaintiff is entitled to be granted an outright release.

Although the sentence is void, all the proceedings leading up to it are valid. The plaintiff finds no fault with them except in one particular to be mentioned later. He was legally convicted of burglary, legally convicted of forgery, and legally found to be a person who had committed seven felonies. Under the statute then in force it became the mandatory duty of the judge to impose a sentence of life imprisonment for one or the other of the two felonies of which the plaintiff was convicted on March 27, 1943. That duty was neglected either through inadvertence or misinterpretation of the law.

In a series of recent habeas corpus cases in the state of Washington the Supreme Court of that state found it necessary to declare void sentences based upon a finding that the defendant was 'guilty of the crime of Habitual criminal.' There is no such crime in Washington, and the sentences were held to be, not merely erroneous, but absolutely void. Nevertheless, the court ordered the petitioners...