State ex rel. Foster v. Boles, 12211

• Citation: 130 S.E.2d 111,147 W.Va. 655
• Decision Date: 19 March 1963
• Docket Number: No. 12211,12211
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia ex rel. Arnold T. FOSTER v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 111

130 S.E.2d 111

147 W.Va. 655

STATE of West Virginia ex rel. Arnold T. FOSTER v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12211.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 12, 1963.

Decided March 19, 1963.

Syllabus by the Court

1. 'A person convicted of a felony cannot be sentenced under the habitual criminal statute, Code, 61-11-19, unless there is filed by the prosecuting attorney with the court at the same term, and before sentencing, an information as to the prior conviction or convictions and for the purpose of identification the defendant is confronted with the facts charged in the information and cautioned as required by the statute.' Point 3, Syllabus, State ex rel. Housden v. Adams, Warden, 143 W.Va. 601, 103 S.E.2d 873.

2. When 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 of less than life imprisonment, that the trial court entered a judgment imposing a life sentence but did not comply with the provisions of the habitual criminal act, then that part of the sentence, in excess of the maximum statutory sentence for the particular offense charged in the indictment, is void.

3. 'A petitioner in a habeas corpus proceeding upon whom punishment by imprisonment for life has been imposed, under Code, 61-11-19, may be relieved of the void portion of the punishment, but will not be discharged from serving the maximum terms provided by statute as punishment for the principal offenses.' Point 2, Syllabus, State ex rel. Medley v. Skeen, Warden, 138 W.Va. 409, 76 S.E.2d 146.

James M. Sprouse, Charleston, for relator.

C. Donald Robertson, Atty. Gen., Simon M. Bailey, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, Judge.

In this original proceeding the petitioner, Arnold T. Foster, seeks a writ of habeas corpus ad subjiciendum, complaining that he is being held in confinement by the respondent under a sentence of life imprisonment imposed under the provisions of Code, 61-11-18 and 19, as amended, by a court which was without jurisdiction to impose such sentence. The Code provisions involved here are generally referred to as the habitual criminal statute. The petitioner asserts that the trial court, in imposing such life sentence, did not proceed in accordance with the provisions of Section 19 of the aforesaid chapter and article and that by reason thereof any sentence in excess of that provided by statute for the principal offense is void.

On January 14, 1963, this Court awarded the writ prayed for and appointed counsel to assist the petitioner in the further prosecution of his cause. The respondent filed his return and this matter was heard on February 12, 1963, upon the pleadings and the briefs and arguments of counsel for the parties.

The petitioner was indicted by a grand jury of the Intermediate Court of Kanawha County, at its June Term, 1960, for the crime of buying and receiving stolen goods, a felony. At the September Term, 1960, of said court, the petitioner entered a plea of not guilty to the charge and, on December 1, 1960, during the September Term, trial on said charge was held. On December 2, 1960, the jury returned a verdict of guilty and the petitioner, by counsel, moved to set the verdict aside, written grounds in support of such motion being filed with the court on December 27, 1960. This motion being overruled by the court, a motion in arrest of judgment was made and was likewise overruled.

On January 4, 1961, during the said September Term, the prosecuting attorney filed an information with the Clerk of the Intermediate Court of Kanawha County, wherein he alleged that Arnold Foster had twice, prior to that proceeding, been convicted and sentenced for crimes constituting felonies.

At the January Term, 1961, the court entered an order causing the aforesaid information to be filed. The order then continued: 'Thereupon the Court duly cautioned the defendant [petitioner here] and required him to say whether or not he is the same person as that named in the information filed herein as aforesaid. Whereupon the defendant acknowledged in open court that he is the same person named in the information filed by the Prosecuting Attorney * * *.' The court, in said order, then sentenced the petitioner to life imprisonment as an habitual criminal.

The petitioner firmly urges that this proceeding raises three vital issues, any one of which is sufficient to void the life sentence heretofore imposed. (1) Did the Prosecuting Attorney of Kanawha County file the information immediately upon conviction, as required by Code, 61-11-19, as amended? (2) Did the filing of the said information with the Clerk of the Intermediate Court satisfy the requirements of Code, 61-11-19, as amended, requiring information to be given to the court? (3) In order to comply with the provisions of the aforesaid Code section, must the defendant be confronted, in the trial court, with the charges contained in the information, and must his identity be established at the same term of court at which he was tried and convicted of the principal offense, or may such proceedings take place at a subsequent term of court?

Code, 61-11-19,...