State ex rel. McClure v. Boles, No. 12464

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation142 S.E.2d 773,149 W.Va. 599
PartiesSTATE ex rel. Hubert N. McCLURE v. Otto C. BOLES, Warden, West Virginia Penitentiary.
Decision Date22 June 1965
Docket NumberNo. 12464

Page 773

142 S.E.2d 773
149 W.Va. 599
STATE ex rel. Hubert N. McCLURE
v.
Otto C. BOLES, Warden, West Virginia Penitentiary.
No. 12464.
Supreme Court of Appeals of West Virginia.
Submitted June 8, 1965.
Decided June 22, 1965.

Page 774

Syllabus by the Court

1. The provisions of Section 19, Article 11, Chapter 61, Code, 1931, as amended, which include the requirement that the defendant in a criminal proceeding, before he acknowledges his identity as the person who has been previously convicted, must be duly cautioned, are mandatory and must be complied with fully for the imposition of a valid sentence of further confinement under the habitual criminal statute.

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 less than life imprisonment that the trial court entered a judgment imposing a sentence of life imprisonment under the habitual criminal statute, Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended, but did not fully comply with the provisions of that statute by failing to cause the defendant in such case, when confronted with the charges in the information, to be duly cautioned at the same term of court at which he was convicted of the principal offense charged in the indictment, the added portion of the sentence, in excess of the maximum statutory sentence for such principal offense, is void for the reason that the trial court lacked jurisdiction to impose such additional sentence.

[149 W.Va. 600] 3. A judgment which is wholly void, or is void in part, is subject to collateral attack and its enforcement will be prevented in a habeas corpus proceeding.

4. A petitioner in a habeas corpus proceeding, upon whom punishment for an invalid additional period has been improperly imposed under the habitual criminal statute, may be relieved of the void portion of the punishment but will not be discharged from serving the maximum term provided by statute for the principal offense.

Donald E. Jarrell, Whitesville, for relator.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.

HAYMOND, Judge:

In this original habeas corpus proceeding instituted in this Court, the petitioner, Hubert N. McClure, who is presently confined in the penitentiary of this State by virtue of a sentence of life imprisonment as a habitual criminal imposed by the Circuit Court of Boone County, West Virginia, by its final judgment rendered February 3, 1961, seeks to prevent the enforcement of the sentence of life imprisonment

Page 775

and a writ to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from confinement when he has served the valid portion of such sentence for the principal offense of which he was convicted on February 3, 1961, when the sentence of life imprisonment was imposed.

On May 10, 1965, this Court awarded a writ returnable June 8, 1965 and appointed an attorney to represent the petitioner. Upon the return day of the writ this proceeding was heard and submitted for decision upon the petition and its exhibits, the answer of the defendant and its exhibits, and the written brief and oral argument in behalf of the petitioner. No written brief was filed in behalf of the defendant, who produced the body of the petitioner as commanded by the writ and alleged in his answer that the petitioner was indicted by the grand jury of the Circuit Court of Boone County, West Virginia, on January 17, 1961, for the crime [149 W.Va. 601] of forgery; that on January 31, 1961, the circuit court appointed an attorney to represent the petitioner; that the trial of the case resulted in a jury verdict of guilty on February 3, 1961; that on the same day the prosecuting attorney of Boone County filed an information, charging the petitioner with two previous felony convictions; and that upon the admission by the petitioner that he was the same person described in the information the circuit court imposed the...

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8 practice notes
  • State ex rel. Muldrew v. Boles, No. 12687
    • United States
    • Supreme Court of West Virginia
    • January 23, 1968
    ...v. Boles, 150 W.Va. 109, 144 S.E.2d 322; State ex rel. Bullett v. Boles, 149 W.Va. 700, 143 S.E.2d 133; State ex rel. McClure v. Boles, 149 W.Va. 599, 142 S.E.2d 773; State ex rel. Robison v. Boles, 149 W.Va. 516, 142 S.E.2d 55; State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851,......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...the cases of State ex rel. Beckett v. Boles, Warden, 149 W.Va. 112, 138 S.E.2d 851 and State ex rel. McClure v. Boles, Warden, W.Va., 142 S.E.2d 773 (decided June 22, 1965), to support this contention. This position is not well taken because, as heretofore stated, the affidavits fall short ......
  • Wanstreet v. Bordenkircher, No. 14968
    • United States
    • Supreme Court of West Virginia
    • March 10, 1981
    ...103 S.E.2d 873 (1958); for failure to duly caution the defendant regarding his rights under the statute, State ex rel. McClure v. Boles, 149 W.Va. 599, 142 S.E.2d 733 (1965); State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851 (1964); State ex rel. Cox v. Boles, 146 W.Va. 392, 120......
  • State ex rel. Widmyer v. Boles, No. 12475
    • United States
    • Supreme Court of West Virginia
    • October 12, 1965
    ...v. Boles, W.Va., 142 S.E.2d 377; State ex rel. Robison v. Boles, W.Va., 142 S.E.2d Page 327 55; State ex rel. McClure v. Boles, W.Va., 142 S.E.2d 773; State ex rel. Reed v. Boles, W.Va., 142 S.E.2d 733; State ex rel. Carver v. Boles, W.Va., 142 S.E.2d 731; State ex rel. Whytsell v. Boles, W......
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8 cases
  • State ex rel. Muldrew v. Boles, No. 12687
    • United States
    • Supreme Court of West Virginia
    • January 23, 1968
    ...v. Boles, 150 W.Va. 109, 144 S.E.2d 322; State ex rel. Bullett v. Boles, 149 W.Va. 700, 143 S.E.2d 133; State ex rel. McClure v. Boles, 149 W.Va. 599, 142 S.E.2d 773; State ex rel. Robison v. Boles, 149 W.Va. 516, 142 S.E.2d 55; State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851,......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...the cases of State ex rel. Beckett v. Boles, Warden, 149 W.Va. 112, 138 S.E.2d 851 and State ex rel. McClure v. Boles, Warden, W.Va., 142 S.E.2d 773 (decided June 22, 1965), to support this contention. This position is not well taken because, as heretofore stated, the affidavits fall short ......
  • Wanstreet v. Bordenkircher, No. 14968
    • United States
    • Supreme Court of West Virginia
    • March 10, 1981
    ...103 S.E.2d 873 (1958); for failure to duly caution the defendant regarding his rights under the statute, State ex rel. McClure v. Boles, 149 W.Va. 599, 142 S.E.2d 733 (1965); State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851 (1964); State ex rel. Cox v. Boles, 146 W.Va. 392, 120......
  • State ex rel. Widmyer v. Boles, No. 12475
    • United States
    • Supreme Court of West Virginia
    • October 12, 1965
    ...v. Boles, W.Va., 142 S.E.2d 377; State ex rel. Robison v. Boles, W.Va., 142 S.E.2d Page 327 55; State ex rel. McClure v. Boles, W.Va., 142 S.E.2d 773; State ex rel. Reed v. Boles, W.Va., 142 S.E.2d 733; State ex rel. Carver v. Boles, W.Va., 142 S.E.2d 731; State ex rel. Whytsell v. Boles, W......
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