State ex rel. Cogar v. Haynes

• Citation: 180 S.E.2d 492,154 W.Va. 805
• Decision Date: 02 March 1971
• Docket Number: No. 13050,13050
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. Charles A. COGAR v. Lloyd E. HAYNES, Warden of the Huttonsville Correctional Center.

Page 492

180 S.E.2d 492

154 W.Va. 805

STATE ex rel. Charles A. COGAR v. Lloyd E. HAYNES, Warden of the Huttonsville Correctional Center.

No. 13050.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1971.

Decided March 2, 1971.

Syllabus by the Court

1. Under the laws of this state, criminal offenses are either felonies or misdemeanors. Such offenses as are punishable by confinement in the penitentiary are felonies and all other offenses are misdemeanors.

2. 'If a sentence under which a person is confined to the penitentiary is void, a writ of habeas corpus will be granted to release him from such imprisonment.' Point 2 Syllabus, State ex rel. Truslow v. Boles, 148 W.Va. 707 (137 S.E.2d 235).

3. 'Immaterial, unnecessary and harmless averments, which might be omitted without affecting the charge in an indictment against the accused and which need not be proved, may be properly considered and rejected as surplusage.' Point 1 Syllabus, State v. McGraw, 140 W.Va. 547 (85 S.E.2d 849).

4. 'An indictment which charges an offense in the language of the statute which creates such offense will not be held to be invalid because it contains surplus matter.' Point 6 Syllabus, Pyles v. Boles, 148 W.Va. 465 (135 S.E.2d 692).

5. No indictment may be deemed invalid because of the insertion therein or the omission therefrom of words of mere form or surplusage.

6. 'A void sentence is in law no sentence at all and the court upon a valid sentence may impose any penalty provided by law.' Point 3 Syllabus, State ex rel. Boner v. Boles, 148 W.Va. 802 (137 S.E.2d 418).

7. In a post-conviction habeas corpus proceeding in which it appears that the defendant was improperly sentenced to a term of imprisonment in the state penitentiary upon his conviction of a misdemeanor charged in an indictment, this Court may adjudge that the penitentiary sentence is void and may remand the prisoner to the trial court for correction of the invalid sentence and for imposition of a valid sentence in conformity with the sentence prescribed by statute for a conviction of the misdemeanor charged in the indictment.

8. When an indictment for a misdemeanor charges that the offense was committed feloniously, the word 'feloniously' may be regarded as mere surplusage which does not affect the validity of the indictment.

9. In a post-conviction proceeding in habeas corpus in which the prisoner has been improperly sentenced to confinement in the state penitentiary as a consequence of his conviction of a charge of a misdemeanor contained in an indictment and in which proceeding this Court remands the prisoner to the trial court for the imposition of a sentence in conformity with the statute which prescribes the penalty for a conviction of the misdemeanor, this Court may properly direct the trial court to accord to the prisoner credit on such sentence for the period of time the prisoner was imprisoned as a consequence of the prior invalid sentence to the state penitentiary in the event the trial court, in imposing a corrected sentence, includes therein a provision for confinement of the prisoner in the county jail.

Ernest V. Morton, Jr., Webster Springs, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Asst. Atty. Gen., Charleston, for respondent.

CALHOUN, Judge:

In this original proceeding in habeas corpus, Charles A. Cogar, the relator, seeks a writ to compel the respondent, Lloyd E. Haynes, Warden of the Huttonsville Correctional Center, to release him from custody.

The facts of the case are undisputed. The issue to be determined by the Court is whether the indictment upon which the relator was convicted charges an offense under the laws of this state, and, if so, whether the offense charged is a felony or a misdemeanor.

On January 8, 1969, the relator was indicted in the Circuit Court of Webster County for 'unlawfully and feloniously' destroying property. The specific language of the indictment is as follows:

'* * * that Charles A. Cogar, on the 14th day of September, 1968, in the County of Webster, did unlawfully and feloniously destroy, injure and deface the real property belonging to William R. Snyder, Jr., situated in Cherry Falls, Webster County, West Virginia, by then and there throwing rocks, beer bottles and boards through the window of said real property, thereby causing damage in the amount of Two Hundred Dollars ($200.00), and by unlawfully and feloniously damaging and destroying awnings on said building, the damage to said building and awnings being in the sum of Six Hundred Ninety Dollars ($690.00), and otherwise destroying the real estate of the said William Snyder, Jr., against the peace and dignity of the State.'

On May 12, 1969, the relator appeared in court in person and by counsel and entered a plea of guilty 'to the crime charged in the indictment.' At the same time the relator, by counsel, made an application for probation. By an order entered on September 18, 1969, the circuit court denied the relator's application for probation and sentenced him to the West Virginia State Penitentiary 'for a term generally as provided by law.'

On September 24, 1969, the relator, by counsel, filed a written motion to set aside the sentence imposed by the circuit court, setting forth the following three grounds in support of the motion:

'1. The indictment does not charge any offense under the Laws of the State of West Virginia.

'2. The indictment is couched in the language of West Virginia Code 61--3--30, which Code described only a misdemeanor and makes no provision for a felony as charged in the indictment in this case.

'3. There is no penalty prescribed by the laws of the State of West Virginia for the crime allegedly charged in the indictment in this action.'

The trial court, by an order entered on September 29, 1969, took the motion under advisement, suspended the execution of the sentence previously imposed and provided for the relator to be released on bond. The record indicates that there was an 'informal agreement' by the trial court, the relator and his counsel to the effect that the court would hold the motion in abeyance and would sustain the relator's motion within a reasonable time if the relator in the meantime violated no other laws and conducted himself properly.

Approximately a year later, the relator was convicted of several misdemeanors in a justice of the peace court. The circuit court, by an order entered on September 28, 1970, took cognizance of the fact that the relator had been convicted of certain misdemeanor charges and ordered that the sentence previously imposed on September 18, 1969, be 'repronounced' and that the relator be sentenced to an indeterminate term of imprisonment in the state penitentiary of not less than one year nor more than ten years.

The indictment upon which the relator was convicted is couched in the language of Code, 1931, 61--3--30. The pertinent portion of the statute reads as follows:

'If any person unlawfully, but not feloniously, take and carry away, or destroy, injure or deface any property, real or personal, not his own, he shall be guilty of a misdemeanor, and, upon conviction, be fined not exceeding one hundred dollars, and may, in the discretion of the court, be confined in jail not exceeding sixty days.'

The habeas corpus petition alleges that neither 'the Court below nor the prosecuting attorney' was able to find any authority sustaining the validity of the indictment. The petition further alleges that the indictment is 'void'. It concludes with a prayer that the relator be discharged from his imprisonment in the state penitentiary and that this Court 'may make such orders and grant such relief to your petitioner as the nature of his case may require and as may be meet and proper in the premises.'

In the return filed in behalf of the respondent, it is denied that the indictment is void. It is alleged affirmatively that the relator's plea of guilty was made voluntarily, knowingly and intelligently; that the indictment charged the relator with destruction of real property 'in violation of Code 61--3--30, a misdemeanor;' and that the relator's conviction 'is valid, proper and not void.' The return concludes with a prayer that the relator's 'conviction be upheld.'

Counsel for the respondent, by brief and oral argument in this Court, have stated that their research failed to disclose any crime at common law which would authorize a court to regard the offense charged in the indictment in this case as a felony punishable by confinement in the state penitentiary. We are not aware of any statute in this state which creates any felony based on an act of destroying, injuring or defacing property as charged in the indictment in this case. Counsel for the respective parties have been unable to direct our attention to any statute or to any portion of the common law which could form basis of authority in the trial court to impose upon the relator a sentence to the state penitentiary upon his plea of guilty to the offense charged in the indictment in this case.

We note, as do counsel for the relator and counsel for the respondent by brief and oral argument in this Court, that the indictment is couched in the language of Code, 1931, 61--3--30. Parenthetically, we note that the statute was amended in 1969, after the return of the indictment involved in this case. The amended statute, of course, is not pertinent to this case. The amendment made no substantial change in the pertinent language of the statute except to increase the severity of the penalty. The statute, both in its original form and also as amended, contains this language: 'If any person unlawfully, but not feloniously, take and carry away, or destroy, injure or deface any property, real or personal, not his own, He shall be guilty of a misdemeanor, * * *.' (Italics supplied.) Thereafter the statute, both in its original form and as amended, provides for punishment by fine and, in...