State ex rel. Lovejoy v. Skeen, No. 10629
| Court | Supreme Court of West Virginia |
| Writing for the Court | LOVINS |
| Citation | 78 S.E.2d 456,138 W.Va. 901 |
| Docket Number | No. 10629 |
| Decision Date | 24 November 1953 |
| Parties | STATE ex rel. LOVEJOY, v. SKEEN. |
Page 456
v.
SKEEN.
Decided Nov. 24, 1953.
Page 457
Syllabus by the Court.
1. A conviction and sentence of a person in a court of competent jurisdiction, in the absence of a showing that the judgment is wholly or partially void, will not be reviewed in a proceeding in habeas corpus.
2. A former conviction for one offense and a subsequent conviction for a different offense does not constitute double jeopardy to the person so convicted, as forbidden by Article III, Section 5, Constitution of West Virginia.
Paul E. Bottome, Logan, for relator.
John G. Fox, Atty. Gen., Robert E. Magnuson, Asst. Atty. Gen., for respondent.
LOVINS, Judge.
This Court, in the exercise of its original jurisdiction, granted a writ of habeas corpus ad subjiciendum upon the petition of Ronceford Lovejoy, hereinafter designated as 'petitioner', and appointed Paul Bottome, Esquire, of Logan, West Virginia, as his counsel. The Warden of the West Virginia State Penitentiary is the respondent.
Counsel stipulated that certain warrants issued by a justice, transcripts of the proceedings before the same justice, an indictment against petitioner, an information filed against him and certain orders made by the Circuit [138 W.Va. 902] Court of Logan County be made a part of the record in this proceeding, and we so consider them.
It is disclosed that upon an affidavit made by a member of the Department of Public Safety, a warrant was issued by A. D. Scaggs, a justice of Logan County, West Virginia, for the arrest of petitioner. The warrant charged that petitioner 'had in his possession a quantity of copper wire, without having obtained a bill of sale for same'. The transcript of the proceedings on this warrant shows that petitioner was fined $100 and costs, sentenced to jail for 30 days; and committed to jail for 10 days until the fine and costs were paid and the jail sentence served. Such sentence was imposed on the 12th day of November, 1952.
The same member of the Department of Public Safety procured another warrant from the same justice, charging petitioner with stealing copper wire of the value of $75 on the same day as the offense charged in the first warrant. Petitioner and Donald Lovejoy were held to answer an indictment thereafter to be returned by a grand jury of Logan County, West Virginia. An indictment was returned by a grand jury on the 12th day of January, 1953, against Donald Lovejoy and the petitioner, which charged that on the 9th day of November, 1952, they stole 250 feet of copper wire of the value of $75.
After the return of the indictment, the petitioner entered into a recognizance in the penalty of $1,000 on the 16th day of January, 1953. On the 23rd day of January, 1953, an order entered by the Circuit Court of Logan County shows that the petitioner did not appear in response to the condition of his recognizance, and a scire facias was awarded.
The Circuit Court of Logan County, West Virginia entered another order allowing a deputy sheriff's expense incurred in returning the two defendants named in the indictment from Cleveland, Ohio to Logan, West Virginia for trial.
[138 W.Va. 903] Petitioner and Donald Lovejoy pleaded not guilty. Upon a jury trial, they were found guilty as charged in the indictment. The trial took place on May 20, 1953. Thereafter, on May 22, 1953, the Circuit Court of Logan County, West Virginia entered an order appointing counsel for petitioner. It is to be noted however, that
Page 458
the date of entry of the order appointing counsel is two days subsequent to the entry of the order showing the jury trial. The counsel so appointed was allowed a fee of $25 for his services in defending petitioner, from which we may assume that appointed counsel defended petitioner a the proper time and place.The next step in the proceedings on the indictment is shown by an order made June 12, 1953, when the prosecuting attorney of Logan County, West Virginia, filed an information against petitioner which charged that he was indicted for a felony; that on the 18th day of May, 1934, he pleaded guilty and was sentenced to serve a period of three years in the West Virginia State Penitentiary; that he served such sentence; that on the 17th day of September, 1937, petitioner was again indicted for a felony; that on the 20th day of September, 1937, he pleaded guilty to such indictment and was sentenced to serve a term of five years in the West Virginia State Penitentiary, and that he has served such term of imprisonment. On the 12th day of January, 1953, he was indicted for a felony committed on the 9th day of November, 1952, and that on the 20th day of May, 1953, he was tried and convicted of such felony.
The final step appears from an order of the Circuit Court of Logan County, made on the 12th day of June, 1953, when the petitioner was sentenced to confinement in the West Virginia State Penitentiary for the remainder of his natural life.
The order of sentence for the last felony was pronounced under the provisions of Chapter 31, Article 11, Sections 18 and 19, Acts of the Legislature, Regular Session, 1943. The last order of the Circuit Court relative to whether petitioner admitted of [138 W.Va. 904] Logan County does not show any proceedings or denied that he was the same person formerly convicted and sentenced for two felonies; whether a jury was impaneled to try the issue of identity of petitioner with the person formerly twice convicted and sentenced, or whether petitioner was cautioned before sentence of life imprisonment was pronounced, as provided in Chapter 31, Article 11, Section 19, Acts of the Legislature, 1943, Regular Session.
The petitioner filed his petition in this proceeding, alleging that the crime of grand larceny for which he was tried, was for the same offense for which he was tried before the justice; that he was tried twice for the same offense, one trial being in the justice's court, the other in the Circuit Court of Logan County, and that he was illegally subjected to prosecution upon the indictment for grand larceny, since he was not given a preliminary hearing on such charge until forty days after his arrest.
In oral argument, counsel for petitioner raised two other questions relating to the deficiencies above noted in the order of sentence and that an oral statement was made by petitioner at the time he was tried in the Circuit Court of Logan County, to the effect that he had been tried before by the justice for the same offense.
The respondent demurred to the petition filed in this proceeding on the grounds that the question of former jeopardy in this case cannot be raised or considered in this proceeding, and that the petition herein discloses that the offenses for which he was tried by the justice and the Circuit Court of Logan County are not identical; that the failure to give the petitioner a preliminary hearing until forty days after his arrest cannot be reviewed in a habeas corpus proceeding.
Respondent also made return to the writ and produced the body of petitioner. The return alleges that he was legally sentenced to life imprisonment, and that [138 W.Va. 905] petitioner is now legally confined in the West Virginia State Penitentiary, pursuant to a valid judgment rendered a court of competent jurisdiction and...
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...at any time and in any court whenever any claim or right is asserted under such judgment. Page 424 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. Ashb......
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...v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 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. A......
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Rakes v. Ferguson, No. 12212
...v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 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. A......
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State ex rel. Cecil v. Knapp, No. 11012
...v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 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. A......
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State ex rel. Vance v. Arthur, No. 10887
...at any time and in any court whenever any claim or right is asserted under such judgment. Page 424 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. Ashb......
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Gavenda Bros., Inc. v. Elkins Limestone Co., No. 12012
...v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 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. A......
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Rakes v. Ferguson, No. 12212
...v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 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. A......
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State ex rel. Cecil v. Knapp, No. 11012
...v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Vance v. Arthur, 142 W.Va. 737, 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. A......