Spry v. Boles, 8476.
| Decision Date | 13 February 1962 |
| Docket Number | No. 8476.,8476. |
| Citation | 299 F.2d 332 |
| Parties | Charley SPRY, Appellant, v. Otto C. BOLES, Warden, West Virginia State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Jolyon W. McCamic, Wheeling, W. Va. (Court-appointed counsel), for appellant.
George H. Mitchell, Asst. Atty. Gen., of West Virginia (C. Donald Robertson, Atty. Gen., of West Virginia, on the brief), for appellee.
Before SOBELOFF, Chief Judge, and BRYAN and BELL, Circuit Judges.
On May 26, 1953, the petitioner was convicted in the Circuit Court of Logan County, West Virginia, of breaking and entering. After conviction and before sentencing, the prosecuting attorney of that county presented information to the Circuit Court setting forth two previous convictions. On June 12, 1953, pursuant to the provisions of the recidivist law of that state, Code of West Virginia, 61-11-18, 61-11-19, the Court sentenced petitioner to confinement in the penitentiary for the remainder of his natural life. Petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Appeals of West Virginia, which petition was denied by said Court on May 24, 1954. On October 14, 1954, the Supreme Court of the United States denied a writ of certiorari to review the action of the Supreme Court of Appeals of West Virginia.
Petitioner then sought a writ of habeas corpus in the United States District Court for the Northern District of West Virginia. On July 26, 1956, the Honorable Herbert S. Boreman, then Judge of the Court, entered an order refusing to grant the writ because in the Court's opinion the petitioner was still serving time pursuant to a validly imposed maximum sentence of ten years for breaking and entering and had not begun serving time pursuant to the illegally imposed life sentence under the recidivist statute.
On July 14, 1961, the petitioner again filed a petition in the United States District Court for the Northern District of West Virginia praying for a writ of habeas corpus. On September 14, 1961, an order was entered quashing the writ and dismissing the petition. The petitioner has now served the validly imposed sentence and it is too late for the filing of a new information or for resentencing under the Habitual Criminal Act of West Virginia, Code, 61-11-18, 61-11-19.
The act in question requires that the prisoner be "duly cautioned". We are satisfied that this requirement is mandatory and that if the petitioner was not duly cautioned prior to his admission of his identity and prior to the imposition of the life sentence then the failure to do so denied to the prisoner "due process of law" and consequently the sentence imposed under the statute was void. This view of the law is confirmed by that of the Supreme Court of West Virginia in State ex rel. Cox v. Bowles, W.Va., 120 S.E.2d 707 (1961).1 In that case there was no written information filed and the defendant was not "duly cautioned". The Court said:
"These two mandatory requirements of the statute were not complied with in connection with the imposition of the additional five year period of confinement; and for that reason the circuit court was without jurisdiction to impose that additional confinement upon the petitioner and that portion of the sentence imposed by the judgment entered February 18, 1959, is void and of no force and effect." (At page 709).
Since we are bound by that Court's interpretation of this statute, Johnson v. Tucker, Warden, 249 F.2d 650 (4 Cir. 1957), there can be no doubt that the life sentence was void if the petitioner was not "duly cautioned".
The order in this case is based solely upon the depositions of R. A. Barker, petitioner's counsel at the trial, and C. C. Chambers, the trial judge who imposed the life sentence. Since the Court had only written...
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...103 S.E.2d 873; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; Mounts v. Boles, 326 F.2d 186, Fourth Circuit; Spry v. Boles, 299 F.2d 332, Fourth Circuit. In State ex rel. Foster v. Boles, 147 W.Va. 655, 130 S.E.2d 111, this Court, approving and quoting point 3 of the sylla......
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State ex rel. Scott v. Boles
...to comply with the 'duly cautioned' provision of the West Virginia statute constitutes a denial of due process of law. Spry v. Boles, 299 F.2d 332 (4th Cir., 1962), involved the 'duly cautioned' provision of the West Virginia recidivist statute. The Court stated at page 334: 'The act in que......
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...reexamination and federal habeas relief was ordered because of the violation of the statutory due warning requirement. See Spry v. Boles, 299 F.2d 332 (4th Cir. 1962). For its purposes, the courts of West Virginia may characterize such statutory requirements as jurisdictional. 2 Doing so ma......
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Ware v. Howell
...well able as the trial judge to appraise the credibility of the witnesses and draw inferences from their testimony."); Spry v. Boles, 299 F.2d 332, 334 (4th Cir.1962) ("Since the Court had only written depositions before it, we are as capable to determine questions of credibility and weight......