State ex rel. Mounts v. Boles

• Decision Date: 18 July 1962
• Docket Number: No. 12154,12154
• Citation: 126 S.E.2d 393,147 W.Va. 152
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. John Fink MOUNTS v. Otto C. BOLES, Warden, etc.

Page 393

126 S.E.2d 393

147 W.Va. 152

STATE ex rel. John Fink MOUNTS v. Otto C. BOLES, Warden, etc.

No. 12154.

Supreme Court of Appeals of West Virginia.

Submitted April 17, 1962.

Decided June 26, 1962.

Dissenting Opinion July 18, 1962.

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.' Pt. 1, syllabus, Lovejoy v. Skeen, Warden, 138 W.Va. 901 .

2. 'Where in a criminal proceeding there is no error other than the entry of a judgment imposing the sentence, the judgment should be reversed and the case remanded for proper judgment of sentence to be entered by the trial court.' Pt. 9, syllabus, State v. Justice, 130 W.Va. 662 , as cited in Pt. 9, syllabus, State v. Blankenship, 137 W.Va. 1 .

3. 'A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and error in a final judgment in a criminal case can not be considered or corrected in such proceeding; but if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding.' Pt. 1, syllabus, Dye v. Skeen, Warden, 135 W.Va. 90 [62 S.E.2d 681, 24 A.L.R.2d 1234].

4. The words 'duly cautioned' contained in the West Virginia recidivist statute, Code, 61-11-19, as amended, with regard to former convictions and sentences before a valid judgment can be imposed for an additional sentence as provided in Code, 61-11-18, as amended, are fully complied with when the accused, after being convicted of the substantive offense and before being sentenced thereon, is later brought before the court in the same term and advised that the prosecuting attorney has filed a written information informing the court of former convictions and sentences; and the court then proceeds to advise the accused of the nature of each former offense and of the time and place of each former sentence, and then after giving the accused an opportunity to say whether he has any defense thereto, asks him if he is the same person as was formerly convicted and sentenced. If he answers in the affirmative, appropriate sentence may be pronounced in accordance with the statute.

Jeremy C. McCamic, Thomas B. Miller, Wheeling, for relator.

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

BERRY, Judge.

This habeas corpus proceeding was instituted under the original jurisdiction of this Court on January 23, 1962. John Fink Mounts, petitioner, hereinafter referred to as petitioner, seeks a writ to compel Otto C. Boles, Warden of the West Virginia State Penitentiary, respondent, hereinafter referred to as respondent, to release him from his present confinement under sentence of life imprisonment imposed upon him by the final judgment of the Circuit Court of Mingo County, entered on May 30, 1956, after the petitioner had been tried and found guilty by a jury of unlawful and felonious wounding.

The verdict of the jury was returned on May 29, 1956, and on May 30, 1956, the prosecuting attorney of Mingo County filed a written information with the Circuit Court informing the Court that the petitioner had been convicted of felonies on four other occasions, giving the place, date, crime and sentence of each conviction. Before sentencing the petitioner, the judge of the Circuit Court read to the petitioner each former conviction, advising him of the date, crime and sentence of each conviction, and asked him if he was the same man who had been convicted and sentenced on each occasion, to which the petitioner, in the presence of, and with the knowledge of his attorney, answered that he was the same person who had been convicted in each of the four instances contained in the presentment, after which the court sentenced the petitioner to life imprisonment under the habitual criminal statute of this state. Code, 61-11-18, as amended, and Code, 61-11-19, as amended.

The petitioner alleges in his petition that he is being held as a prisoner in the state penitentiary at Moundsville, under a life sentence imposed by the Circuit Court of Mingo County, which Court, the contends, was without jurisdiction to impose such sentence. It is the contention of the petitioner that he was either sentenced to life imprisonment under Code, 61-2-9, for unlawful and felonious wounding, which provides for a maximum sentence of from one to five years, or, he was sentenced to life imprisonment as a recidivist under Code, 61-11-19, as amended; and that if he was sentenced under the unlawful and felonious wounding statute, which maximum sentence he has already served, the remainder of the sentence imposed for life is void, because the court had no jurisdiction to impose such sentence under Code, 61-2-9; and that if he was sentenced to life imprisonment under Code, 61-11-19, as amended, as a recidivist, the life sentence is void because the Circuit Court of Mingo County had no jurisdiction to impose such sentence, because, he alleges, he had not been duly cautioned by the court before he acknowledged his identity as being the person who had been previously convicted and sentenced, as required by Code, 61-11-19, as amended.

The petition for a writ of habeas corpus in this case had two exhibits filed with it. Exhibit No. 1 was the order of the court showing the complete proceedings had in connection with this case, the appearance of the petitioner with his attorney, the plea of not guilty, the verdict of the jury finding him guilty of unlawful and felonious wounding, the motions made by petitioner's counsel to set aside the verdict and in arrest of judgment, which were overruled by the court, the filing of the information by the prosecuting attorney setting out in detail the former convictions, the appearance of the petitioner with his attorney after the filing of the information with regard to the former convictions, the inquiry made by the court of the petitioner in open court as to whether or not he was the same person named in each of the four convictions contained in the information, the admission of the petitioner that he was the same person named in each of the former convictions, and inquiry by the court if the petitioner had anything to say or any reason to offer why the judgment of the court should not be pronounced against him upon the verdict of the jury finding him guilty of unlawful and felonious wounding and upon the information filed with the court and of which he had theretofore been advised in detail. The petitioner made no reply, after which the court ascertained, fixed, and ordered his confinement to the state penitentiary at Moundsville for life.

Exhibit No. 2 is a transcript of the proceedings had disclosing that the petitioner, after an adjournment of the court on May 29th, again came before the court in person, with his attorney, on May 30, 1956, at which time the court advised the petitioner that a written information had been filed with the court, in accordance with Code, 61-11-19, as amended, that the court then proceeded to inform the petitioner in detail with regard to the entire information, in which was set out the dates, the crimes, place, sentence and place of confinement of each former conviction; and that it then required the petitioner to stand up and again informed him of the details of each conviction and asked him if he was the same person named in each indictment and sentence in each case, to which question the petitioner answered in the affirmative, after which he was sentenced to life imprisonment.

The respondent demurred to the petition on the ground that the petitioner had waived his statutory right to be duly cautioned by his failure to make timely assertion of such right, and answered, alleging that the petitioner was legally confined by a court of competent jurisdiction by virtue of the conviction of unlawful and felonious wounding and the information filed relative to the four former convictons, that the judgment of the court was valid on its face.

The only question to be answered in the disposition of this proceeding is whether or not the petitioner was duly cautioned with regard to the four former convictions as provided for in Code, 61-11-19, as amended.

The petitioner alleges that he has served the maximum sentence for unlawful and felonious wounding, that if he had not been duly cautioned with regard to the former convictions, any additional or excess sentence is void, and the petitioner would be entitled to be forthwith discharged from the custody of the respondent under the judgment of May 30, 1956. Dye v. Skeen, Warden, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740. The pertinent provisions of Code, 61-11-19, as amended, dealing with the question involved in this case are as follows:

'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...