State ex rel. Housden v. Adams, No. 10996
| Court | Supreme Court of West Virginia |
| Writing for the Court | DUCKER; GIVEN |
| Citation | 103 S.E.2d 873,143 W.Va. 601 |
| Parties | STATE of West Virginia ex rel. Raymond HOUSDEN v. D. E. ADAMS, Warden, West Virginia Penitentiary. |
| Decision Date | 17 June 1958 |
| Docket Number | No. 10996 |
Page 873
v.
D. E. ADAMS, Warden, West Virginia Penitentiary.
Decided June 17, 1958.
Syllabus by the Court
1. 'A judgment which is wholly void, or is void in part, in subject to collateral
Page 874
attack in a habeas corpus proceeding.' Point 1, syllabus, State ex rel. Browning v. Tucker, 142 W.Va. ----, 98 S.E.2d 740.2. '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 [143 W.Va. 602] 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, 138 W.Va. 409, 76 S.E.2d 146, or, as in this case, will not be discharged from serving the maximum term provided by statute as punishment for the principal offense.
3. 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.
Angus E. Peyton, Charleston, for relator.
W. W. Barron, Atty. Gen., Virginia Mae Brown, Asst. Atty, Gen., for respondent.
DUCKER, Judge.
Raymond Housden filed his petition in this Court for a writ of habeas corpus ad subjiciendum directed to D. E. Adams, Warden of the West Virginia Penitentiary. The petition alleges that petitioner is confined in the penitentiary for and during his natural life and that the sentence is illegal and in violation of petitioner's constitutional rights. Upon the issuance of the writ by this Court on May 20, 1958, counsel was appointed to represent the petitioner.
It was stipulated by counsel for the parties that certified copies of the indictment, the order showing a true bill, the order of arraignment, the order of trial, the order for pre-sentence social, physical and mental examinations, the information and the final order and prayer of the petition, constituting the record of the criminal proceeding[143 W.Va. 603] against the petitioner in the Circuit Court of Jefferson County, West Virginia, be made a part of the record in this proceeding.
The petitioner was indicted in the Circuit Court of Jefferson County, West Virginia, at its September, 1957, Term, for sodomy, and on September 18, 1957, upon arraignment entered a plea of not guilty; on September 24, 1957, he was tried by a jury and found guilty, and the court took time to consider its judgment; on September 26, 1957, the court committed the petitioner to the State Commissioner of Public Institutions for pre-sentence social, physical and mental examinations as provided by statute; on December 9, 1957, at a subsequent term, namely, a Special Term of the Circuit Court of Jefferson County, the petitioner was returned from the custody of the State Commissioner of Public Institutions and brought before the court, and the Prosecuting Attorney of Jefferson County, on that day, filed his duly verified information, alleging that Raymond Housden had been convicted in the Commonwealth of Virginia for the commission of three separate felonies on separate dates, namely, December 5, 1945, September 30, 1946, and October 15, 1947, respectively, and further alleging that the petitioner had been sentenced on each conviction and that each conviction stood unreversed and unappealed from, and that the petitioner, then before the court for sentencing for his conviction in the September Term of said Court of the felony of which he was found guilty, was one and the same person; the Court inquired of petitioner if each of these facts so alleged was correct, to which the petitioner answered in the affirmative; and thereupon the Court sentenced the petitioner to confinement in the West Virginia Penitentiary for life.
Page 875
The respondent answers that the petitioner is legally confined for life in the penitentiary, pursuant to a judgment valid on its face and a valid commitment based thereon by a court of competent jurisdiction, and prays that the writ be discharged and the petitioner be remanded to his custody.
[143 W.Va. 604] The contentions of both the petitioner and the respondent, however stated, raise the sole issue of whether the Circuit Court had jurisdiction to impose the sentence of life imprisonment, or any sentence in excess of a term of one to ten years, which is the period prescribed by Code of 1931, 61-8-13, for the crime of sodomy for which the petitioner was indicted and of which he was convicted by the verdict of the jury, because of failure of the Circuit Court to...
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State ex rel. Appleby v. Recht, No. 30737.
...with the facts charged in the information and cautioned as required by the statute." Syllabus point 3, State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873 Thus, we believe the immediacy requirement is satisfied if the State files the information before sentencing and prior to the ......
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State ex rel. Beckett v. Boles, No. 12342
...charged in the information and cautioned [149 W.Va. 113] as required by the statute.' Point 3, syllabus, State ex rel. Housden v. Adams, 143 W.Va. 601 [103 S.E.2d 4. When it affirmatively appears from the record in the trial of a criminal case on an indictment for a felony punishable by con......
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State ex rel. McMannis v. Mohn, No. 14145
...148 W.Va. 465, 490, 135 S.E.2d 692, 707 (1964), Cert. denied, 379 U.S. 864, 85 S.Ct. 130, 13 L.Ed.2d 67; State ex rel. Housden v. Adams, 143 W.Va. 601, 605, 103 S.E.2d 873, 875-76 (1958); State ex rel. Browning v. Tucker, 142 W.Va. 830, 833-34, 98 S.E.2d 740, 743 (1957). By this we mean tha......
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State ex rel. Smith v. Boles, No. 12485
...Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707; State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892; State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d 14......
-
State ex rel. Appleby v. Recht, No. 30737.
...with the facts charged in the information and cautioned as required by the statute." Syllabus point 3, State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873 Thus, we believe the immediacy requirement is satisfied if the State files the information before sentencing and prior to the ......
-
State ex rel. Beckett v. Boles, No. 12342
...charged in the information and cautioned [149 W.Va. 113] as required by the statute.' Point 3, syllabus, State ex rel. Housden v. Adams, 143 W.Va. 601 [103 S.E.2d 4. When it affirmatively appears from the record in the trial of a criminal case on an indictment for a felony punishable by con......
-
State ex rel. McMannis v. Mohn, No. 14145
...148 W.Va. 465, 490, 135 S.E.2d 692, 707 (1964), Cert. denied, 379 U.S. 864, 85 S.Ct. 130, 13 L.Ed.2d 67; State ex rel. Housden v. Adams, 143 W.Va. 601, 605, 103 S.E.2d 873, 875-76 (1958); State ex rel. Browning v. Tucker, 142 W.Va. 830, 833-34, 98 S.E.2d 740, 743 (1957). By this we mean tha......
-
State ex rel. Smith v. Boles, No. 12485
...Cox v. Boles, 146 W.Va. 392, 120 S.E.2d 707; State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892; State ex rel. Housden v. Adams, 143 W.Va. 601, 103 S.E.2d 873; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d 14......