State ex rel. Lovejoy v. Skeen

• Decision Date: 24 November 1953
• Docket Number: No. 10629,10629
• Citation: 78 S.E.2d 456,138 W.Va. 901
• Parties: STATE ex rel. LOVEJOY, v. SKEEN.
• Court: West Virginia Supreme Court

Page 456

78 S.E.2d 456

138 W.Va. 901

STATE ex rel. LOVEJOY, v. SKEEN.

No. 10629.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 3, 1953.

Decided Nov. 24, 1953.

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 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.

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 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 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 petitioner is now legally confined in the West Virginia State Penitentiary, pursuant to a valid judgment rendered a court of competent jurisdiction and a commitment issued on such judgment.

Upon consideration of this record, the following questions are raised: (1) Can former jeopardy be first raised in this proceeding? (2) Is the offense of having copper wire in possession without a bill of sale identical with the crime of grand larceny for stealing such wire? (3) Is the sentence of imprisonment for life void, for the reason that petitioner was not given a preliminary hearing until forty days after his arrest? (4) Are the omissions and imperfections of the order showing sentence a reason for holding such sentence void?

The petitioner in this proceeding rests his claim on the constitutional provisions prohibiting a person from being placed in jeopardy twice for the same offense. The Fifth Amendment to the Constitution of the United States reads in part: '* * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; * * *.' The inhibition contained in the Fifth Amendment is directed solely to the Federal Government. Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288.

The Constitution of West Virginia however, may be applicable. The petinent portion of Section 5, Article III, Constitution of this State reads as follows: '* * * nor shall any person, in any criminal case, * * * be twice put in jeopardy of life or liberty for the same offence.'

A proceeding in habeas corpus is generally, but not in all instances, a collateral attack upon a former judgment, by virtue of which a person is confined in prison. The instant proceeding is a collateral attack on the judgment of the Circuit Court of Logan County sentencing the petitioner to life imprisonment. 'A judgment, valid on its face and rendered by a court of general jurisdiction having jurisdiction of both parties and subject matter, is not open to collateral attack.' Crickmer v. Thomas, 120 W.Va. 769, 200 S.E. 353; Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350, 754; Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28. A void judgment being a nullity, may be attacked at any time and in any court upon the assertion of a right claimed under such judgment. Cable v. Cable, 132 W.Va. 620, 53 S.E.2d 637. See Stephenson v. Ashburn, W.Va., 70 S.E.2d 585; Evans v. Hale, 131 W.Va. 808, 50 S.E.2d 682; Roberts v. Hickory Camp Coal & Coke Co., 58 W.Va. 276, 52 S.E. 182. We therefore are called upon to inquire whether the judgment of sentence of the Circuit Court of Logan County is void or voidable. A judgment pronounced by a court of competent jurisdiction, valid on its face, will not be disturbed on on a writ of habeas corpus, a collateral...