State ex rel. Medley v. Skeen, 10582

Citation76 S.E.2d 146,138 W.Va. 409
Decision Date09 June 1953
Docket NumberNo. 10582,10582
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. MEDLEY, v. SKEEN, Warden.

Syllabus by the Court.

1. A judgment imposing punishment by imprisonment which is void in whose or in part, may be reviewed and corrected in a habeas corpus proceeding; but such proceeding is not a substitute for a writ of error.

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.

3. A third conviction of a felony which was committed prior to a second felony and conviction therefor, does not authorize the imposition of punishment of life imprisonment upon the person so convicted, under Code, 61-11-19.

Samuel D. Littlepage, Pt. Pleasant, for petitioner.

John G. Fox, Atty. Gen., Arden J. Curry, T. D. Kauffelt, Asst. Attys. Gen., for defendant.

LOVINS, Judge.

John Medley filed his petition in this Court for a writ of habeas corpus ad subjiciendum directed to the Warden of the West Virginia Penitentiary. The petition so filed was evidently prepared without aid of counsel. It is alleged in the petition that petitioner is now confined in the penitentiary for the term of his natural life and that the sentence is illegal and in violation of petitioner's constitutional rights. A writ was granted by this Court. Petitioner now has the aid of counsel.

By stipulation of counsel, the following are made a part of the record in this proceeding: (1) An indictment and order of sentence for the burglary of the dwelling house of June Kay; (2) an indictment and order of sentence for the burglary of the dwelling house of S. C. Fowler; (3) an indictment and order of sentence for felonious assault made upon William Nichols; (4) an indictment and order of sentence for the burglary of the dwelling house of Roy Yauger; (5) the petition for the writ; (6) the affidavit for petitioner in forma pauperis, and, (7) the order of this Court awarding the writ.

The record discloses that petitioner was indicted by a Grand Jury of Mason County on September 5, 1935, for the crime of breaking and entering the dwelling house of June Kay in the daytime, on the ___ day of August, 1935, with intent to steal the goods and chattels of June Kay; and further that he stole certain articles of the total value of $155. Upon a plea of guilty to that indictment, he was sentenced to confinement in the penitentiary for a period of ten years. This indictment and sentence will be hereinafter designated as conviction number 1.

The petitioner was indicted by a Grand Jury of Mason County on the 5th day of September, 1935, in which it was charged that the petitioner, on the ___ day of August, 1935, in the daytime, broke and entered the dwelling house of S. C. Fowler, with intent to steal the goods and chattels of S. C. Fowler, and that he stole a number of articles of the total value of $54. The petitioner pleaded guilty to this indictment and was sentenced by the Circuit Court of Mason County to be confined in the penitentiary for ten years. In the order of sentence, the trial court provided that such sentence would be served concurrently with the sentence pronounced under conviction number 1. This indictment and order of sentence will be hereinafter designated as conviction number 2. The two foregoing convictions occurred on September 6, 1935.

A Grand Jury of Mason County, on the 3rd day of January, 1936, returned an indictment against petitioner which charged that on the ___ day of November, 1935, the petitioner maliciously assaulted one William Nichols, with intent to maim, disfigure, disable and kill him.

The Circuit Court of Mason County, on the 13th day of January, 1936, sentenced the petitioner to confinement in the penitentiary for a period of seven years and provided in the order of sentence that the sentence so imposed for malicious maiming should begin upon the expiration of the sentence theretofore pronounced against him on September 6, 1935, under conviction number 1. The indictment for malicious maiming and order of sentence will be hereinafter referred to as conviction number 3.

The petitioner was indicted by a Grand Jury of Mason County on the 29th day of April, 1936. This indictment alleged two of the former convictions, numbers 1 and 3. The third count of the last indictment charged that the petitioner, on the ___ day of August, 1935, in the daytime, broke and entered the dwelling house of Roy Yauger, with intent to steal the chattels of Roy Yauger, and that he stole money and other chattels of the total value of $35.

Petitioner, on the 4th day of May, 1936, pleaded guilty to the indictment charging him with breaking and entering the dwelling house of Roy Yauger. Thereupon, the Circuit Court of Mason County sentenced him to the penitentiary of this state for the remainder of his natural life. The last indictment and sentence will be hereinafter designated as conviction number 4.

It is to be noted that the petitioner filed, along with his petition, a paper denominated, 'Case History', followed by a prayer for the issuance of a writ of habeas corpus ad subjiciendum. He filed as Exhibit A, with his petition, the order of the Circuit Court of Mason County, sentencing him to life imprisonment; the indictment returned by the Grand Jury of that County on the 29th day of April, 1936, as Exhibit B; the indictment charging him with entering the dwelling house of S. C. Fowler, as Exhibit C; and the indictment charging him with the felonious assault on William Nichols as Exhibit D.

In view, however, of the stipulation of counsel above stated, formally making those exhibits, along with other writings, a part of the record in this proceeding, and, since the filing of exhibits in proceedings on the law side of the court is not permitted, we do not consider the exhibits as such. See Pingley v. Pingley, 84 W.Va. 433, 100 S.E. 216; Vorholt v. Vorholt, 111 W.Va. 196, 160 S.E. 916.

Respondent, without denying any of the facts as above stated, answered the petition and concluded by praying that the petitioner be remanded to his custody.

Petitioner makes three contentions: (1) That a void sentence of imprisonment, in whole or in part, may be corrected in a proceeding in habeas copus; (2) that a sentence in excess of the jurisdiction of a trial court is void as to such excess; and, (3) that a conviction of a person for a crime which was committed prior to the commission of a second crime does not authorize the imposition of a sentence of imprisonment for life under the habitual criminal statute, Code, 61-11-18, 19.

It will be noted that all of the convictions here considered occurred prior to the amendments made by Chapter 31, Acts of the Legislature, 1943, and Chapter 26, Acts of the Legislature, 1939. The pertinent statutes in force at the time the petitioner was convicted of the four offenses read as follows: 'When any person is convicted of an offense, and sentenced to confinement therefor in the pentitentiary, and it is alleged in the indictment on which he is convicted, and admitted, or by the jury found, that he had been before sentenced in the United States to a like punishment, he shall be sentenced to be confined five years in addition to the time which he is or would be otherwise sentenced.' Code, 61-11-18. 'When any such convict shall have been twice before sentenced in the United States to confinement in the penitentiary, he shall be sentenced to be confined in the penitentiary for life. But before such sentence may be lawfully imposed, it must be alleged in the indictment on which he is convicted, and admitted, or by the jury found, that such convict had theretofore been twice sentenced in the United States to the penitentiary.' Code, 61-11-19.

A writ of habeas corpus cannot be substituted for a writ of error. Hence, we cannot, and do not consider any errors in the four convictions of petitioner, the time for the allowance of the writ of error having long since elapsed. A proceeding in habeas corpus is the proper method of testing the legality of petitioner's confinement. If void, the writ will lie. State ex rel. Nutter v. Mace, 130 W.Va. 676, 44 S.E.2d 851. Moreover, if the sentence of...

To continue reading

Request your trial
37 cases
  • Landreth, Application of
    • United States
    • Oregon Supreme Court
    • April 16, 1958
    ...A. 735; Com. v. Curry, supra.' See also Commonwealth ex rel. Tiscio v. Burke, 173 Pa.Super. 350, 98 A.2d 760. In State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d 146, 148, the prisoner had been given a life sentence under the habitual criminal act and the court held that 32 years was......
  • Wanstreet v. Bordenkircher
    • United States
    • West Virginia Supreme Court
    • March 10, 1981
    ...v. McMannis, W.Va., 242 S.E.2d 571 (1978); State ex rel. Yokum v. Adams, 145 W.Va. 450, 114 S.E.2d 892 (1960); State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d 146 (1953); Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681 (1950). This Court has also excluded convictions by a military court, ......
  • Esso Standard Oil Co. v. Kelly
    • United States
    • West Virginia Supreme Court
    • February 2, 1960
    ...of Beckley, 138 W.Va. 571, 76 S.E.2d 683; State ex rel. Emery v. Rodgers, Judge, 138 W.Va. 562, 76 S.E.2d 690; State ex rel. Medley v. Skeen, Warden, 138 W.Va. 409, 76 S.E.2d 146; Mustard v. The City of Bluefield, 130 W.Va. 763, 45 S.E.2d 326; Vorholt v. Vorholt, 111 W.Va. 196, 160 S.E. 916......
  • State ex rel. Smith v. Boles
    • United States
    • West Virginia Supreme Court
    • January 12, 1966
    ...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 146; Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234. In this proceeding the record of the trial court, a cour......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT