State ex rel. Housden v. Adams, 10996

• Decision Date: 17 June 1958
• Docket Number: No. 10996,10996
• Citation: 103 S.E.2d 873,143 W.Va. 601
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Raymond HOUSDEN v. D. E. ADAMS, Warden, West Virginia Penitentiary.

Page 873

103 S.E.2d 873

143 W.Va. 601

STATE of West Virginia ex rel. Raymond HOUSDEN v. D. E. ADAMS, Warden, West Virginia Penitentiary.

No. 10996.

Supreme Court of Appeals of West Virginia.

Submitted June 3, 1958.

Decided June 17, 1958.

Syllabus by the Court

1. 'A judgment which is wholly void, or is void in part, in subject to collateral 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 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 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.

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.

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 comply with the requirements of Code 61-11-18 and 19, as last amended by Chapter 31, Acts of the Legislature, 1943, Regular Session, known as the habitual criminal statute, which provides as follows:

' Punishment for Second or Third Offense of Felony.--When any person is convicted of an affense and is subject to confinement in the penitentiary therefor, and it is determined, as provided in section nineteen ( § 6131) of this article, that such person had been before convicted in the United States of a crime punishable by imprisonment in a penitentiary, the court shall, if the sentence to be imposed is for a definite term of years, add five years to the time for which the person is or would be otherwise sentenced. Whenever in such case the court imposes an indeterminate sentence, five years shall be added to the maximum term of imprisonment otherwise provided for under such sentence.

'When it is determined, as provided in section nineteen hereof, that such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the penitentiary for life.

' § 6131. Procedure in Trial of Persons for Second or Third Offense.-- It shall be the duty of the prosecuting attorney when he has knowledge of former sentence or sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary to give information thereof to the court immediately upon conviction and before sentence. Said court shall, before expiration of the term at which such person was convicted, cause such person or prisoner to be brought before it, and upon an information filed by the prosecuting attorney, setting forth the records of conviction and sentence, or convictions and sentences, as the case may be, and alleging the identity of the prisoner with the person named in each, shall require the prisoner to say whether he is the same person or not. If he says he is not, or remains silent, his plea, or the fact of his silence, shall be entered of record, and a jury shall be impanelled to inquire whether the prisoner is the same person mentioned in the several records. If the jury finds that he is not the same person, he shall be sentenced upon the charge of which he was convicted as provided by law; but if they find that he is the same, or after being duly cautioned if he acknowledged in open court that he is the same person, the court shall sentence him to such...