Shankle v. Woodruff

Decision Date30 April 1958
Docket NumberNo. 6301,6301
Citation64 N.M. 88,1958 NMSC 54,324 P.2d 1017
PartiesLeslie E. SHANKLE, Petitioner, v. T. M. WOODRUFF, Warden of the State Penitentiary of the State of New Maxico, Respondent.
CourtNew Mexico Supreme Court

Kellahin & Fox, by Jason W. Kellahin, Santa Fe, for petitioner.

Fred M. Standley, Atty. Gen., Hilton A. Dickson, Jr., and Robert F. Pyatt, Asst. Attys. Gen., for respondent.

SADLER, Justice.

The petitioner herein seeks release by habeas corpus from the state penitentiary where he is serving a life sentence. He was committed to the state penitentiary on May 2, 1952, for the full term of the rest of his natural life beginning with the date mentioned for the crime of obtaining money under false pretenses. The life sentence was imposed by reason of a showing that he was subject to an increased penalty under the habitual criminal act. 1953 Comp. Secs. 41-16-3 and 41-16-4.

At the trial it appeared the petitioner on December 9, 1935, was convicted of the crime of swindling in the state of Texas. On July 8, 1938, he was convicted of two charges of swindling in the state of Texas; and on February 3, 1941, petitioner was convicted of making and issuing worthless checks. As a result of the last conviction at Portales in Roosevelt County, New Mexico, petitioner was sentenced to life imprisonment in the New Mexico state penitentiary under the provisions of 1953 Comp. Secs. 41-16-3 and 41-16-4. On December 20, 1949, petitioner received a full and complete pardon from the Governor of New Mexico following a previous release on parole.

Thereafter, on November 13, 1951, in Chaves County, New Mexico, the petitioner was proceeded against by the office of district attorney, the charge being the obtaining of money under false pretenses and with being an habitual criminal under the provisions of the habitual criminal act. He was tried before the Honorable George T. Harris, a judge of the district court for the Fifth Judicial District and upon being found guilty was sentenced to the state penitentiary for the rest of his natural life.

The information upon which petitioner was tried and convicted in the Fifth Judicial District within and for the County of Chaves, State of New Mexico, which resulted in the sentence which petitioner is now serving, is a part of the record in this case. For convenience, so much of the information as is pertinent to the present proceeding, reads as follows:

'The said defendant was, on or about the 3rd day of February, 1941, at Portales, New Mexico, convicted of the crime of making and issuing worthless checks, a felony under the laws of the State of New Mexico.

'The said defendant was, on or about the 8th day of July, 1938, in the State of Texas, convicted of two charges of the crime of swindling, both of which said crimes would be felonious if committed in the State of New Mexico.

'The said defendant was, on or about the 9th day of December, 1935, in the State of Texas, convicted of two charges of the crime of swindling, a crime which would be a felony if committed in the State of New Mexico.'

The conviction, as noted, was in Chaves County and commitment thereon was issued in the name of the Honorable George T. Harris, a judge of the Fifth Judicial District, the commitment reading in part, as follows:

'Whereas, at a regular term of the Fifth Judicial District Court of the State of New Mexico, begun and held in and for the County of Chaves on the second Monday of April A.D. 1952, L.E. Shankle was duly convicted of the crime of habitual criminal and by the said court sentenced to imprisonment for the full terms of the rest of his natural life beginning with the 2 day of May, A.D. 1952, such imprisonment to be in the New Mexico State Penitentiary, situated at Santa Fe, in the State of New Mexico.'

The petitioner seeks his release from the present life sentence being served in this proceeding on habeas corpus. His amended petition for the writ raises the following points:

'1. The commitment under which petitioner is held in the New Mexico State Penitentiary is void on its face.

'2. The Court was without jurisdiction to issue the commitment under which petitioner is presently being held.

'3. Petitioner had received a full and complete pardon and therefore could not be sentenced as a habitual criminal on the basis of the pardon offense.

'4. Petitioner had previously been sentenced to a life term on the basis of the same offenses under which he is presently being held as a habitual criminal and said offenses could not again be considered as the basis for a second life term under the habitual criminal statute.

'5. The information filed as to that portion which purports to charge petitioner with being a habitual criminal fails to charge that petitioner had previously been convicted of a felony under the laws of the State of New Mexico.'

The respondent, Superintendent of the state penitentiary, designated Warden herein, answers petitioner's first point under a heading stating the converse thereof, to-wit:

'Legality of Petitioner's imprisonment does not depend on the mittimus.'

His first authority cited is from 15 Am. Jur. 153, Sec. 502, and we quote as follows:

'It has been generally held that a defendant imprisoned, in the custody of a proper officer, under a conviction by a court of general jurisdiction, will not be released on habeas corpus, merely because of a defective commitment in the hands of such officer, when the judgment of conviction authorizes such imprisonment. This view is rested on the theory that when a valid final judgment of imprisonment is rendered against a defendant, that judgment becomes the real authority for such imprisonment, and the commitment, which ordinarily is merely a certified copy of the judgment, is only evidence of such authority.'

The controlling authority, however, is Ex parte DeVore, 18 N.M. 246, 136 P. 47, 51, reading:

'It is true the mittimus delivered to the warden of the penitentiary recites that petitioner was convicted of the crime of 'escape from jail,' but the legality of the imprisonment does not rest upon the mittimus, but upon the judgment, (Sennott's Case, 146 Mass. 489, 16 N.E. 448) and a prisoner who has been legally and properly sentenced to prison can not obtain his discharge simply because there is an imperfection, or error, in the mittimus. People ex rel. Trainor v. Baker, 89 N.Y. , 461.'

Looking at the record, we find the information filed charges petitioner with obtaining money under false pretenses, contrary to section 40-21-3 '* * * and of being an habitual criminal, contrary to section 41-16-3 * * *.' He was tried under this information, and the jury duly returned a verdict of guilty as charged. Thereupon, the district court announced its judgment and sentence, and imposed the life sentence mandatorily required by 1953 Comp. Secs. 41-16-3 and 41-16-4. This valid judgment is not to be nullified by the flaws complained of in the commitment.

The petitioner next challenges jurisdiction of the district court to impose the judgment and sentence it did, passing up any argument on the point by saying validity of the proceedings leading up to the judgment and sentence will be discussed under other points urged. It is pertinent to remark, however, that in view of 1953 Comp. Sec. 40-21-3, penalizing as a felony the obtaining of money under false pretenses, of which petitioner stands convicted, and of 1953 Comp. Secs. 41-16-3 and 41-16-4, enhancing the penalty on one thrice convicted of a felony, there would seem to be no doubt of jurisdiction of the district court to impose the sentence it did, even in the face of the objections urged.

The petitioner's counsel next advances what constitutes the most serious challenge to the validity of his sentence. It is that having received a full and complete pardon of his sentence to life imprisonment as an habitual criminal, by reason of his previous convictions, such convictions became so to speak 'functus officio' and, neither they nor any of them could be again employed to support a sentence to life imprisonment under the habitual criminal act. Counsel for petitioner admits there is a distinct split of authority on the proposition and it becomes our province to say which line of authorities is based upon the better reason and logic constituting, as it does, the weight of authority.

While recognizing the division of authority on the question, the decided weight of authority rests with the respondent in his claim that an executive pardon of the offense which provokes the court into imposing a life sentence under the habitual criminal act is unavailing to deny the court authority to employ the same felony convictions again for purpose of imposing a sentence under the habitual criminal act, if subsequent to his pardon, the prisoner commits another felony.

Taking note of this division of authority the author of the text on the subject in 25 Am.Jur. 269, Sec. 21, under topic 'Habitual Criminals' has this to say:

'Effect of Pardon.--The extravagant language sometimes used in describing the effect of a pardon is in contrast with the actual decisions of the courts. A literal interpretation of this language is a basis of the conflict of the authorities as to the effect of a pardon on the liability of the defendant to suffer the enhanced penalty for a subsequent conviction. The prevailing view, that a pardon for a prior offense does not prevent the imposition of an increased penalty for a subsequent offense, is based upon the theory that pardon does not touch the person's actual guilt and that the enhanced punishment is not an element of the first offense or an additional disability attaching thereto, but is an appropriate penalty for one who, despite a prior conviction, relapses into crime. A contrary view, based on the reasoning that a pardon 'maketh a new man' and obliterates guilt and offense, holds that a pardon prevents the prior conviction from being used in determining the punishment...

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11 cases
  • State v. Clifton, COA95-1335
    • United States
    • Court of Appeal of North Carolina (US)
    • 4 Marzo 1997
    ...State v. Wiggins, 360 S.W.2d 716 (Mo.Sup.Ct.1962); Murray v. Hand, 187 Kan. 308, 356 P.2d 814 (1960); Shankle v. Woodruff, 64 N.M. 88, 324 P.2d 1017 (1958); Dean v. Skeen, 137 W.Va. 105, 70 S.E.2d 256 (1952); People ex rel. Prisament v. Brophy, 287 N.Y. 132, 38 N.E.2d 468 (1941); State v. S......
  • State v. Baucom, 2946.
    • United States
    • Court of Appeals of South Carolina
    • 16 Febrero 1999
    ...under Minnesota's habitual criminal statute following conviction of crime of performing illegal operation); Shankle v. Woodruff, 64 N.M. 88, 324 P.2d 1017 (1958) (holding pardon does not prevent use of prior conviction for habitual offender sentencing); State v. Webb, 36 N.D. 235, 162 N.W. ......
  • State v. Edmondson
    • United States
    • Court of Appeals of New Mexico
    • 28 Mayo 1991
    ...has held that a pardon does not prevent the use of a prior conviction for habitual-offender sentencing in New Mexico. Shankle v. Woodruff, 64 N.M. 88, 324 P.2d 1017 (1968). More directly in point, in Padilla our supreme court permitted use of a prior New Mexico conviction even though the ch......
  • Garcia v. State Bd. of Educ., 7383
    • United States
    • Court of Appeals of New Mexico
    • 11 Octubre 1984
    ...a sentence. Padilla v. State, 90 N.M. 664, 568 P.2d 190 (1977); State v. Larranaga, 77 N.M. 528, 424 P.2d 804 (1967); Shankle v. Woodruff, 64 N.M. 88, 324 P.2d 1017 (1958). For the purposes of the COEA, it is the establishment of guilt which is the relevant concern, rather than the disposit......
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