State ex rel. Smith v. Jameson
| Decision Date | 06 September 1963 |
| Docket Number | No. 10053,10053 |
| Parties | STATE of South Dakota ex rel. Wilson R. SMITH, Petitioner and Appellant, v. G. Norton JAMESON, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Raymond Hieb, Ipswich, Thomas Mani, Milbank, Charles Lacey, Sioux Falls, for petitioner and appellant.
Frank L. Farrar, Atty. Gen., Donald J. McClure, Asst. Atty. Gen., Pierre, for defendant and respondent.
The defendant, Wilson R. Smith, entered his plea of guilty in the Circuit Court of Spink County, South Dakota, to the crime of grand larceny. After his plea the States Attorney filed a supplemental information charging him with being an habitual criminal and the court sentenced the defendant to 15 years in the State Penitentiary under the enhancement provisions of the habitual criminal statute.
This case reaches the Supreme Court on an appeal from the judgment of the Circuit Court of Minnehaha County quashing a writ of habeas corpus, sought by the defendant.
During oral argument in the Supreme Court, counsel for the appellant conceded that the defendant was guilty of the crime of grand larceny. Counsel further conceded that the defendant had been three times previously convicted of a felony. Counsel stated in his oral argument that, 'We must admit that we stand on technical omissions in the record'.
This court has held that proceedings on habeas corpus to obtain release from custody under final judgment are in the nature of a collateral attack and that the writ deals only with such radical defects as render the proceeding or judgment absolutely void. Nelson v. Foley, 54 S.D. 382, 223 N.W. 323; State ex rel. Anderson v. Jameson, 51 S.D. 540, 215 N.W. 697; 12 R.C.L. 1192, 25 Am.Jur., Habeas Corpus, Sec. 28, p. 162.
On the other hand the jurisdiction of a court or judge to make or render an order, judgment, or sentence by which a person is imprisoned is always a proper subject of inquiry on habeas corpus. Wharton's Criminal Procedure, Vol. 5, Habeas Corpus, Sec. 2225, p. 456. The habitual criminal act is a highly penal enactment and therefore should be strictly construed and applied. Even an incorrigible recidivist should not be subjected to the more severe punishment unless all of the procedural and substantive requirements created by the statute as well as those which exist in due process are fully met. State v. Janiec, 20 N.J.Super. 471, 90 A.2d 98; Wharton's Criminal Procedure, Vol. 5, Punishment, Sec. 2221, p. 442; People v. Brown, 253 Mich. 537, 235 N.W. 245, 82 A.L.R. 341.
This court has held repeatedly that our habitual criminal act, SDC 13.0611, authorizing a more severe penalty to be inflicted on one who is a persistent offender did not create a new or independent crime. State v. De Marsche, 68 S.D. 250, 1 N.W.2d 67; Ex parte Watt, 73 S.D. 436, 44 N.W.2d 119. Being an habitual criminal is a status and to be charged with being an habitual criminal is not to be charged with a crime. Ex parte Watt, supra; Zeimer v. Turner, 14 Utah 2d 232, 381 P.2d 721; People v. Dunlop, 102 Cal.App.2d 314, 227 P.2d 281.
Appellant in the first point, in his written brief, contends that the defendant was sentenced solely as an habitual criminal and not for grand larceny. The complete file in the Spink County case was received in evidence in the habeas corpus action in Minnehaha County. It reveals the following factual situation relative to the defendant's sentencing:
The defendant, Wilson R. Smith, was charged by preliminary complaint on December 19, 1955, with having committed the crime of grand larceny in Spink County on September 11, 1955. Following a preliminary hearing he was bound over to Circuit Court and at the June 1956 term, upon the request of his attorney, his case was continued over to the November 1956 term of Circuit Court. Upon arraignment in Circuit Court the defendant demanded a jury trial and informed the court he had engaged counsel for the trial. The case was set down for jury trial commencing November 14, 1956 at 10 o'clock a. m. However, the day before, on November 13, 1956, the defendant advised the court that he did not have an attorney and requested the court to appoint counsel for him, which the court did. Upon his arraignment on the 14th day of November, he pleaded not guilty to the information and a jury was duly impaneled and trial of the case was commenced. On the 17th day of November 1956, during the jury trial, but prior to its completion, and while represented by counsel, the defendant applied to the court for permission to withdraw his plea of not guilty, which was granted. The defendant thereupon entered his oral plea of guilty to the information which plea of guilty was accepted and entered by the court, with sentencing set for December 6, 1956.
Thereafter, the defendant and his counsel moved the court for permission to withdraw the plea of guilty and change the plea from guilty to not guilty which motion the court set down for hearing on December 21, 1956. After hearing on said day, the court denied the motion and thereafter on December 21, 1956, the States Attorney then filed his information charging the defendant with being an habitual criminal. In this information, dated December 4, but not filed until December 21, the States Attorney itemized five separate felony convictions. The first was in Spink County, South Dakota, on February 27, 1947, for grand larceny; the second in Brown County, South Dakota, on May 24, 1950, for obtaining money by false pretense; the third in Ramsey County, Minnesota, for grand larceny on June 2, 1952; the fourth in Edmunds County, South Dakota, for grand larceny on July 11, 1956; and the fifth on November 17, 1956, for grand larceny in Spink County, South Dakota.
The court, upon motion of the defendant, dismissed the third and fifth convictions itemized in the habitual criminal information, the third conviction being the Minnesota conviction and the fifth being the current grand larceny charge in Spink County.
Counsel for the appellant contends that, by striking the fifth conviction from the habitual criminal information, this amounted to a dismissal of the substantive offense of grand larceny, so that the 15-year sentence pronounced by the Spink County Circuit Court was for the separate crime of being an habitual criminal rather than enhanced punishment for the substantive offense of grand larceny to which he pleaded guilty on November 17, 1956. We cannot agree with counsel's contention. The record and the transcript of the court proceedings at the time of arraignment on the habitual criminal information and sentencing discloses that there was only one sentence and that it was for grand larceny as charged in the information filed on November 5, 1956.
Counsel for the appellant contends that our habitual criminal act is unconstitutional as having denied him a hearing upon the issues as to whether or not there were prior felony convictions as well as on the issue of whether or not the defendant was the person charged in the alleged convictions. In the first place the habitual criminal act has repeatedly been held constitutional against attacks that the act was an ex post facto law, or that it imposed double jeopardy, imposed cruel and unusual punishment or constituted a denial of due process of law. 58 A.L.R. 20, 82 A.L.R. 345, 116 A.L.R. 209, 132 A.L.R. 91, 139 A.L.R. 673. In the second place the defendant was given a full hearing as is further disclosed by the record. The transcript shows that the court advised appellant as follows:
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