State ex rel. Ringer v. Boles

• Decision Date: 31 October 1967
• Docket Number: No. 12692,12692
• Citation: 157 S.E.2d 554,151 W.Va. 864
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Gerald RINGER v. Otto C. BOLES, Warden, etc.

Page 554

157 S.E.2d 554

151 W.Va. 864

STATE ex rel. Gerald RINGER v. Otto C. BOLES, Warden, etc.

No. 12692.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 3, 1967.

Decided Oct. 31, 1967.

Syllabus by the Court

1. When an information duly filed in accordance with the provisions of Code, 1931, 61--11--19, as amended, charges one convicted of a felony with having been previously convicted of a felony and when, upon inquiry by the trial court, the prisoner denies that he is the same person as the one alleged in the information to have been convicted previously of a felony, it is the mandatory duty of the court, under the provisions of the statute, to impanel a jury to determine whether the prisoner is the same person previously convicted as alleged in the information. The procedure being wholly statutory, the trial court in such circumstances has no jurisdiction to try that issue in lieu of a jury upon testimony taken at the bar of the court. If the trial court, in violation of the mandatory terms of the statute, proceeds to try that issue in lieu of a jury on testimony heard at the bar of the court and upon such testimony finds and adjudges that the prisoner is the same person and, because of such alleged prior conviction, sentences the prisoner to a term of five years imprisonment in addition to the sentence imposed for the conviction of the principal offense, the judgment of the court in respect to the sentence of five years of additional imprisonment is void and, in a habeas corpus proceeding instituted for the purpose, the prisoner is entitled to be relieved from serving such invalid portion of the sentence imposed upon him.

2. In a habeas corpus proceeding, it may be determined that an additional period of imprisonment imposed pursuant to the habitual criminal statutes of this state is void and the prisoner may be relieved from serving such void portion of the sentence; but if it appears that he has not completed the serving of the valid portion of his sentence imposed for his conviction of the principal offense, he will not be discharged but will be remanded to continue serving the valid portion of the sentence.

George B. Vieweg, III, Wheeling, for relator.

C. Donald Robertson, Atty. Gen., Morton I. Taber, Asst. Atty. Gen., Charleston, for respondent.

CALHOUN, President.

On March 16, 1953, Gerald Ringer, the relator in this original habeas corpus proceeding, was found guilty by a jury in the Intermediate Court of Ohio County upon on an indictment which charged him with having committed the offense commonly referred to as malicious wounding, a felony, for which the prescribed penalty is confinement in the penitentiary for not less than two nor more than ten years. Code, 1931, 61--2--9.

At the same term of court and before sentence was imposed, the prosecuting attorney filed an information, pursuant to the habitual criminal statutes of this state, charging in adequate detail that Gerald Ringer, under the name of Gerald T. Ringer, previously had been convicted of a felony upon his plea of guilty in California on March 24, 1950, and that, pursuant to that conviction, he was sentenced to imprisonment for a period of one to twenty years in the penitentiary at San Quentin.

On March 31, 1953, the Intermediate Court of Ohio County, without having impanelled a jury to try the issues raised by the information, determined and adjudged that Gerald Ringer was the same person who had been convicted previously of a felony in California, as charged in the information and proceeded to sentence the prisoner to confinement in the West Virginia Penitentiary for an indeterminate period of two to ten years for the principal offense plus an additional period of five years, pursuant to the habitual criminal statutes, because of the prior conviction alleged in the information.

The relator alleges in his habeas corpus petition that the Intermediate Court of Ohio County was without jurisdiction to impose the additional sentence of five years on the basis of the previous felony conviction because of failure to comply properly with the provisions of the habitual criminal laws of this state, particularly the provisions for jury trial contained in Code, 1931, 61--11--19, as amended. That statute, after providing for filing of an information by the prosecuting attorney immediately following a conviction of a felony and before sentence, contains the following language which involves the legal question or questions presented for decision in this case:

'* * * 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 the same person, he shall be sentenced upon the charge of which he was convicted as provided by law; but if they find that he is the same, or after being duly cautioned if he acknowledges in open court that he is the same person, the court shall sentence him to such further confinement as is prescribed by section eighteen ( § 61--11--18) of this article on a second or third conviction as the case may be.' (Italics supplied)

An order entered on March 31, 1953, in the Intermediate Court of Ohio County recites the appearance of Gerald Ringer in person and by his attorney; the appearance of the state by the prosecuting attorney; a motion in behalf of the prisoner to set aside the verdict and to grant him a new trial; arguments of counsel in relation to the motion; the action of the court in overruling the motion; and objection and exception of counsel for the prisoner to the action of the court in overruling the motion. The paragraph of the order immediately following the recitation of the court proceedings stated above is as follows:

'The court then proceeded to hear evidence on the Information heretofore filed by the State of West Virginia, charging the said defendant with a former conviction for a felony. The defendant denied being the same person named in the Information but upon testimony of Norman MacEwan, Parole Officer for the West Virginia Penitentiary, it was determined that the said defendant is one and the same person as alleged in said Information.'

By the next paragraph of the same order, the court proceeded to impose the indeterminate sentence of two to ten years, 'with an additional term of five years because of a former conviction.' Copies of that order of the trial court are made exhibits with and parts of the habeas corpus petition and of the return filed in behalf of the respondent.

By the return and demurrer and by the brief and oral argument of counsel for the respondent, it is conceded that, when required by the trial court to answer,...