State ex rel. Vandal v. Adams

• Decision Date: 23 July 1960
• Docket Number: No. 12050,12050
• Citation: 145 W.Va. 566,115 S.E.2d 489
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Robert VANDAL v. D. E. ADAMS, Warden, West Virginia Penitentiary.

Page 489

115 S.E.2d 489

145 W.Va. 566

STATE ex rel. Robert VANDAL v. D. E. ADAMS, Warden, West Virginia Penitentiary.

No. 12050.

Supreme Court of Appeals of West Virginia.

Submitted July 12, 1960.

Decided July 23, 1960.

Syllabus by the Court.

1. A writ of habeas corpus ad subjiciendum will lie to effect the release of one imprisoned in the State Penitentiary without authority of law.

2. An indictment which charges that the defendant '* * * with certain dangerous weapons called a knife and pistol * * * did make an assault, with intent good and lawful currency of the United States of America of the money, goods and chattels of him * * * to steal take and rob * * *.', which omits to charge that such acts were done feloniously, is insufficient to charge the offense, or the attempt to commit the offense, of robbery within the provisions of Code, 61-2-12, as amended, and a sentence, judgment and commitment to a term of imprisonment prescribed for the offense, or the attempt to commit the offense, of robbery based upon such indictment are void.

Frank L Taylor, Jr., Charleston, for relator.

W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for respondent.

BROWNING, President.

Petitioner, a prisoner in the West Virginia State Penitentiary, invoked the original jurisdiction of this Court by filing herein his petition asking for a writ of habeas corpus ad subjiciendum. The petitioner alleged that his 'imprisonment, detention, confinement and restraint in the Penitentiary of the State of West Virginia is illegal, unreasonable, unconstitutional and void; * * *.' On July 5, 1960, the writ was granted, returnable July 12, 1960. Counsel was appointed for the petitioner and on the return day the Attorney General, appearing for the respondent, produced the body of the petitioner, demurred to the petition and upon briefs and oral arguments by counsel the case was submitted for decision.

An exhibit filed with the petition is a certified copy of the indictment to which petitioner entered a plea of guilty and was sentenced to confinement in the penitentiary for a period of ten years. The indictment, insofar as pertinent, is in this language: 'The Grand Jurors of the State of West Virginia, in and for the body of the County of Berkeley, and now attending said Court, upon their oaths present that Melvin Gerst, John Soto and Robert Vandal, on the ___ day of November, 1959, in the County and State aforesaid, in and upon one Kenneth W. Green, with certain dangerous weapons called a knife and pistol, said pistol ten and there being loaded with gunpowder and leaden bullets, with which the said Melvin Gerst, John Soto and Robert Vandal were then and there armed, and also with other actual violence, did make an assault, with intent good and lawful currency of the United States of America of the money, goods and chattels of him the said Kenneth W. Green from the person and against the will of him the said Kenneth W. Green by force and violence, and by assaulting and putting him in bodily fear and danger of his life, to steal take and rob, against the peace and dignity of the State.'

The sole question raised by the pleadings in this case is whether the judgment order, commitment and subsequent confinement of the petitioner in the penitentiary under this sentence are illegal since the indictment to which he pleaded guilty did not contain the word 'foloniously'.

Code, 61-11-1, as amended, reads in part: 'Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in the penitentiary are felonies; all other offenses are misdemeanors.' Code, 61-2-12, as amended, entitled: 'Robbery or Attempted Robbery; Penalties; Bank Robbery and Assaults in Committing or Attempting; Penalties', reads: 'If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years. If any person commit, or attempt to commit, a robbery in any other mode or by any other means, except as provided for in the succeeding paragraph of this section, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than five years.' (Italics supplied.) The other paragraph of the section relates to the forcible taking of money or property from a bank, the penalty for which is not less than ten years nor more than twenty years confinement in the penitentiary, or if an assault occurs, or the life of any person is put in jeopardy by the use of a dangerous weapon, the penalty is not less than ten nor more than twenty-five years. If 'robbery' is committed in the manner described in the first sentence of the first paragraph, it becomes what is commonly called 'armed robbery', though that term may not be entirely accurate, and if 'robbery' is committed in the manner provided in the second sentence of the first paragraph, it becomes what is usually referred to as 'unarmed robbery'. We are not here concerned with the provision of the section relating to 'bank robbery'. A revisers' note states that the section 'is amended to define robbery.' This section, prior to the revision and adoption of the present official Code in 1931, provided simply that: 'If any person commit robbery, being armed with a dangerous weapon, he shall be confined in the penitentiary not less than ten years; if not so armed, he shall be confined therein not less than five years.' In interpreting this section, prior to the revision, this Court held that it did not define robbery, but merely prescribed the punishment. Franklin and Ponto v. Brown, Warden, etc., 73 W.Va. 727, 81 S.E. 405, L.R.A.1915C, 557; State v. McCoy, 63 W.Va. 69, 59 S.E. 758.

Without reference to the revisers' note, this Court said in State v. Young, 134 W.Va. 771, 61 S.E.2d 734, 739, decided in 1950 that: 'We think we are correct in saying that there is no statutory definition of the crime of robbery, although in some of its aspects it is referred to in Code, 61-2-12. At common law, robbery was defined as 'The felonious taking of money or goods of value from the person of another or in his presence, against his will, by force or putting him in fear. * * *'

In State ex rel. Vascovich v. Skeen, 138 W.Va. 417, 76 S.E.2d 283, 285, a prisoner sought release from the State Penitentiary on writ of habeas corpus ad subjiciendum upon the ground that the indictment under which he was convicted did not charge a crime under the provisions of Code, 61-2-12, as amended, but rather an attempt to commit a felony other than armed robbery under the provisions of Code, 61-11-8, which carries a less severe penalty. The indictment there considered followed the statutory form and the Court in holding that the allegations therein charged the petitioner with a felony under the provisions of Code, 61-2-12, as amended, said: 'We think, however, that if the indictment effectively charged a crime, it was that described in the first sentence of the statute. We say this, because the indictment charges the petitioner 'in and upon one Lillian Pearl Hudkins an assault did feloniously make and her, the said Lillian Pearl Hudkins, did then and there feloniously put in bodily fear, * * *.' So the indictment charges that the petitioner made a felonious assault in an attempt to steal, take and carry away property in the custody of the person assaulted. Thus, the indictment, in our opinion, satisfies the wording of the first sentence of the statute, * * *.' (Italics supplied.)

In Barker v. Commonwealth, 2 Va.Cas. 122, decided in 1817, the defendant was convicted upon an indictment charging him with larceny of certain bank notes, and his motion in arrest of judgment upon the ground that the indictment did not contain the word 'feloniously' was overruled, but the appellate court reversed the trial court and in its opinion said: 'It seems, therefore, to be too late, even if there was some ground for doubt, to unsettle this question, and thereby set aside a practical construction of these Laws of so long standing, and disturb all the Cases which have been decided under it. A majority of the Court are, upon the whole, of opinion, that it is error in not alleging that the taking of bank notes in the Indictment mentioned, was done feloniously.' To the same effect is the case of Randall v. Commonwealth, 24 Grat., Va., 644, decided in 1874.

In State v. Whitt, 39 W.Va. 468, 469, 19 S.E. 873, decided in 1894, the defendant was convicted of the malicious killing of an animal belonging to another. The judgment was reversed, the verdict of the jury was set aside upon writ of error, and in the opinion Judge Dent said: '* * * Does the indictment charge a felony? The offence is not alleged as 'feloniously' committed; hence under the settled law of this state the indictment does not charge a felony, but is manifestly bad for that purpose.' In the recent case of State v. Smith, 130 W.Va. 183, 43 S.E.2d 802, the 1st Syllabus Point succinctly states: 'In a felony indictment it is necessary to charge that the acts alleged to have been done by the accused were done 'feloniously." State v. Vest, 21 W.Va. 796; State v. McClung, 35 W.Va. 280, 13 S.E. 654.

The Virginia Court in Jolly v. Commonwealth, 136 Va. 756, 118 S.E. 109, 111, held that an indictment charging a statutory crime, which is punishable with confinement in the penitentiary, need not charge that the acts were feloniously done where the statute defining the crime does not use that word or the word felony as a part of the definition. In the opinion, the court said: '* * * The offenses charged in the third and fourth counts of the indictment are statutory, and neither the word 'felony' nor the word 'feloniously' is used in the definition....