Macomber v. State et al.
| Decision Date | 20 May 1947 |
| Citation | 181 Or. 208,180 P.2d 793 |
| Parties | MACOMBER <I>v.</I> STATE ET AL. |
| Court | Oregon Supreme Court |
Habitual Criminal Act, pleadings and allegations of prior convictions
note, 116 A.L.R. 209. See also, 25 Am. Jur. 270, 273; 24
C.J.S., Criminal law, § 1971
Appeal from Circuit Court, Marion County.
Rex Kimmell, Assistant Attorney General, of Salem (George Neuner, Attorney General, of Salem, on brief), for appellants.
Ben Anderson, of Portland (with William P. Lord, of Portland, on brief), for respondent.
Before ROSSMAN, Chief Justice, and LUSK, BELT, KELLY, BAILEY and HAY, Justices.
REVERSED.
This is an appeal by the defendants from a judgment of the Circuit Court for Marion County, entered April 15, 1946, which directed the discharge of the plaintiff from incarceration in the state prison under a judgment entered by the Circuit Court for Polk County October 23, 1939. The sentence under which the plaintiff (respondent) was held, being for 39 years and 360 days, was imposed pursuant to § 26-2802, O.C.L.A., which specifies the penalty upon a third conviction of a felony. The defendants (appellants) are the State of Oregon and Mr. George Alexander, warden of the state prison.
The entry of the order of the Circuit Court for Marion County, attacked by this appeal, was preceded by a petition for a writ of habeas corpus which averred that the judgment order of the Circuit Court for Polk County, under which the plaintiff was imprisoned, was void. There are no issues before us concerning the pleadings and it will suffice to say that the petition alleged that the judgment order of the Circuit Court for Polk County was void and that the return maintained its validity.
Before stating the issues presented by this appeal we shall mention § 26-2804, O.C.L.A. It says that the district attorney must file against multiple offenders informations accusing them of their previous felony convictions. Opportunity is afforded the accused to enter a plea to the information and secure a trial upon the charge. We shall now state the issues presented by the assignment of error. They are: Assuming that the district attorney has knowledge of one or more prior convictions of a person presently found guilty of a felony, does his failure to file an information under § 26-2804, O.C.L.A., before sentence is imposed, bar him from filing the information after sentence has been imposed; and does the court's imposition of the sentence deprive it of jurisdiction to proceed upon the information when it is filed.
The facts disclosed by the record reveal the following situation: May 21, 1939, the grand jury for Polk County returned as a true bill an indictment which charged the respondent with the crime of grand larceny. October 19, 1939, after trial by jury, a judgment was entered by the Honorable Arlie G. Walker, Judge of the Circuit Court for Polk County, which adjudged the respondent guilty of the crime mentioned in the indictment and sentenced him to imprisonment for a term of five years. On the same day, and after sentence was imposed, the district attorney for Polk County, pursuant to § 26-2804, O.C.L.A., filed an information which averred that the respondent had been adjudged guilty three times of the commission of felonies: (1) a judgment entered September 15, 1931, by the Circuit Court for Linn County which found him guilty of grand larceny; (2) a judgment entered May 13, 1933, by the Circuit Court for Polk County which found him guilty of the crime of assault with intent to rob; and (3) the judgment of October 19, 1939, which we have just mentioned. Upon his arraignment under the information the respondent appeared in person and by counsel. He admitted that he was the person described in the three judgment orders. Following the arraignment Judge Walker, on October 23, 1939, entered the judgment now under attack. It vacated the judgment of October 19, 1939, and sentenced the respondent to imprisonment for 39 years and 360 days. He had served five days under the judgment of October 19. The sentence imposed, it is conceded, was the one required by § 26-2802, O.C.L.A., provided the court had jurisdiction on October 23 over the cause. No appeal was taken from the judgment of October 19, nor from the one of October 23.
September 25, 1945, after the respondent had fully served the sentence imposed by the order of October 19, 1939 (which was vacated by the order of October 23) he filed in the Circuit Court for Marion County the petition for the writ of habeas corpus which we have already mentioned. January 23, 1946, a trial was held before the Honorable George R. Duncan, one of the Circuit Court judges for Marion County, upon the issues submitted by the petition and return. It resulted in the entry of the judgment now under attack and held void the judgment of October 23, 1939.
The respondent contends that when the circuit court entered the judgment of October 19, 1939, the district attorney and the trial judge both knew that the respondent had been twice before adjudged guilty of felonies. He insists that under those purported circumstances the entry of that judgment exhausted the court's jurisdiction and that, therefore, it had no jurisdiction to enter the judgment of October 23, 1939.
We shall now mention the provisions of our statutes which are applicable to recidivists, but before doing so draw attention to the fact that the 1947 legislative assembly made material amendments to our laws upon this subject. Section 26-2802, O.C.L.A., says:
"A person who, after having been two times convicted within this state of felonies, * * * commits a felony within this state, shall be punished, upon conviction of such third, or subsequent, offense, as follows: * * *."
Section 26-2804, O.C.L.A., says:
The respondent argues that since § 26-2804 says: "If at any time, either after sentence or...
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