State ex rel. Browning v. Tucker

• Decision Date: 18 June 1957
• Docket Number: No. 10893,10893
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Denny J. BROWNING, v. E. H. TUCKER, Warden, etc.

Page 740

98 S.E.2d 740

142 W.Va. 830

STATE of West Virginia ex rel. Denny J. BROWNING, v. E. H. TUCKER, Warden, etc.

No. 10893.

Supreme Court of Appeals of West Virginia.

Submitted May 21, 1957.

Decided June 18, 1957.

Syllabus by the Court

1. A judgment which is wholly void, or is void in part, is subject to collateral attack in a habeas corpus proceeding.

2. When, without any showing to the contrary, it affirmatively appears, from the record in the trial of a criminal case on an indictment for a felony punishable by confinement in the penitentiary for a period less than life imprisonment, that the trial court did not comply with the habitual criminal statute then in effect which expressly required that before a sentence of life imprisonment may be lawfully imposed it must be admitted, or by the jury found, that the person convicted on the indictment had previously been twice sentenced in the United States to the penitentiary, a judgment imposing a sentence of life imprisonment upon the convict, based upon the statute, is void, to the extent that it exceeds the maximum sentence for the particular offense charged in the indictment, for lack of jurisdiction of the trial court to render it, and the effect of that part of the sentence of life imprisonment, in excess of the maximum sentence for such particular offense, will be avoided and its enforcement prevented in a habeas corpus proceeding.

O. D. Damron, Logan, for relator.

W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for respondent.

HAYMOND, Judge.

This is a habeas corpus proceeding instituted in this Court, in which the petitioner, Denny J. Browning, seeks a writ to require the defendant, E. H. Tucker, Warden of the West Virginia Penitentiary, forthwith to release him from his present confinement under a sentence of life imprisonment imposed upon the petitioner by the final judgment of the Circuit Court of Logan County, entered January 21, 1941, in the trial on an indictment for the felony of malicious wounding returned against him by a grand jury attending that court at its regular May Term, 1940.

The petitioner contends that the circuit court was without jurisdiction to impose the sentence of life imprisonment, or any sentence in excess of a term of ten years, the maximum period prescribed by Section 9, Article 2, Chapter 61, Code, 1931 for the crime of malicious wounding for which he was indicted and of which he was convicted by the verdict of the jury, by reason of the failure of the circuit court to comply with the requirements of Sections 18 and 19, Article 11, Chapter 61, Code, 1931, known as the habitual criminal statute, which, though substantially amended by Sections 18 and 19, Article 11, Chapter 31, Acts of the Legislature, 1943, Regular Session, were in effect when the petitioner was indicted in 1940 and applied to and governed the procedure upon his trial and conviction and when he was sentenced in 1941.

Section 18, before its amendment in 1943, was couched in this language: 'When any person is convicted of an offense, and sentenced to confinement therefor in the penitentiary, and it is alleged in the indictment on which he is convicted, and admitted, or by the jury found, that he had been before sentenced in the United States to a like punishment, he shall be sentenced to be confined five years in addition to the time which he is or would be otherwise sentenced.'

Section 19, before its amendment, contained these provisions: 'When any such convict shall have been twice before sentenced in the United States to confinement in a penitentiary, he shall be sentenced to be confined in the penitentiary for life. But before such sentence may be lawfully imposed, it must be alleged in the indictment on which he is convicted, and admitted, or by the jury found, that such convict had theretofore been twice sentenced in the United States to the penitentiary.'

The indictment upon which the petitioner was tried charged him with the crime of malicious wounding and also alleged, as required by the statute then in effect, that he had previously been twice sentenced in the United States to the penitentiary. To the indictment he entered his plea of not guilty. The jury returned a verdict of guilty in this form: 'We, the jury, find the defendant, Denny Browning, guilty of malicious wounding, as charged in the within indictment. Sherman Lawson, Foreman.' Immediately after the foregoing verdict was returned and recorded the court entered judgment upon the verdict and sentenced the petitioner to confinement in the penitentiary for the remainder of his natural life.

All the foregoing proceedings are recited in and affirmatively appear from the final judgment entered by the circuit court on January 21, 1941.

From the recitals in the final judgment it affirmatively appears that the petitioner by his plea of not guilty denied both the charge of malicious wounding and the allegations of the indictment that he had previously been twice sentenced in the United States to the penitentiary; that he was not found by the verdict of the jury to have previously been twice sentenced in the United States to the penitentiary; and that in view of his denial of the former sentences alleged in the indictment, by his plea of not guilty, which was not withdrawn and was not overcome by proof concerning the alleged former sentences, the petitioner did not admit that he had previously been twice sentenced to the penitentiary. These recited facts are not contradicted by any showing to the contrary disclosed by the record. The final judgment also affirmatively shows on its face that the circuit court entered the judgment sentencing the petitioner to life imprisonment 'in accordance with the verdict of the jury', although the jury by its verdict did not find that he had been previously twice sentenced as alleged in the indictment.

It is clear from the judgment imposing the sentence of life imprisonment that the circuit court did not comply with the requirement of Section .19 of the habitual criminal statute that 'before such sentence may be lawfully imposed, it must be alleged in the indictment on which' the accused 'is convicted, and admitted, or by the jury found, that such convict had theretofore been twice sentenced in the United States to the penitentiary.'

The jurisdiction of the Circuit Court of Logan County to sentence the petitioner to life imprisonment by the judgment rendered January 21, 1941, depended upon and was derived from the habitual criminal statute, Sections 18 and 19, Article 11, Chapter 61, Code, 1931, in effect when such sentence was imposed. Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234. Not having complied with the foregoing requirement of the habitual criminal statute, the circuit court was without jurisdiction to impose the sentence of life imprisonment upon the petitioner. Though the circuit court had jurisdiction of the crime of which the petitioner was indicted and of the petitioner and had jurisdiction to impose the maximum sentence of ten years for the crime of malicious wounding of which the petitioner was convicted, it did not have jurisdiction, because of its failure to satisfy the jurisdictional requirement of the habitual criminal statute, to impose the sentence of life imprisonment upon the petitioner, or any sentence against him in excess of the maximum period of ten years for the offense charged in the indictment and of which he was convicted upon the trial of the case.

A habeas corpus proceeding is not a substitute for a writ of error or other appellate process and error in a final judgment in a criminal case, which renders such judgment voidable merely but not void, can not be considered or corrected in such proceeding; but if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding. State ex rel. Vascovich v. Skeen, 138 W.Va. 417, 76 S.E.2d 283, certiorari denied 346 U.S. 916, 74 S.Ct. 277, 98 L.Ed. 411; Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234; State ex rel. Nutter v. Mace, 130 W.Va. 676, 44 S.E.2d 851; Ex parte Evans, 42 W.Va. 242, 24 S.E. 888; Slater v. Melton, 119 W.Va. 259, 193 S.E. 185; Ex parte Mooney, 26 W.Va. 36, 53 Am.Rep. 59.

A void judgment, being a nullity, may be attacked, collaterally or directly, at any time and in any court whenever any claim or right is asserted under such judgment. State ex rel. Vance v. Arthur, W.Va., 98 S.E.2d 418; State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 78 S.E.2d 456, certiorari denied 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268; Bennett v. Bennett, 137 W.Va. 179, 70 S.E.2d 894; Stephenson v. Ashburn, 137 W.Va. 141, 70 S.E.2d 585; Cable v. Cable, 132 W.Va. 620, 53 S.E.2d 637; Evans v. Hale, 131 W.Va. 808, 50 S.E.2d 682; Pettry v. Hedrick, 124 W.Va. 113, 19 S.E.2d 583; Perkins v. Hall, 123 W.Va. 707, 17 S.E.2d 795; Hayhurst v. J. Kenny Transfer Company, 110 W.Va. 395, 158 S.E. 506; New Eagle Gas Coal Company v. Burgess, 90 W.Va. 541, 111 S.E. 508; Jones v. Crim, 66 W.Va. 301, 66 S.E. 367; Roberts v. Hickory Camp Coal and Coke Company, 58 W.Va. 276, 52 S.E. 182; St. Lawrence Boom and Manufacturing Company v. Holt, 51 W.Va. 352, 41 S.E. 351; Hoback v. Miller, 44 W.Va. 635, 29 S.E. 1014; Fowler v. Lewis, 36 W.Va. 112, 14 S.E. 447; Haymond v. Camden, 22 W.Va. 180; Camden v. Haymond, 9 W.Va. 680; 11 Michie's Jurisprudence, Judgments and Decrees, Section 145; 11 Michie's Jurisprudence, Jurisdiction, Section 9.

This proceeding is a collateral attack upon the judgment of the circuit court which imposed a sentence of life imprisonment upon the petitioner. State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 78 S.E.2d 456, certiorari denied 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268; State ex rel. Vance v. Arthur, W.Va. 98 S.E.2d 418; Adkins v. Adkins, W.Va., 97 S.E.2d 789; McKnight v. Pettigrew, W.Va., 91 S.E.2d 324; Nelson Transfer and Storage...