State ex rel. Vascovich v. Skeen

• Decision Date: 09 June 1953
• Docket Number: No. 10583,10583
• Citation: 138 W.Va. 417,76 S.E.2d 283
• Parties: STATE ex rel. VASCOVICH, v. SKEEN.
• Court: West Virginia Supreme Court

Page 283

76 S.E.2d 283

138 W.Va. 417

STATE ex rel. VASCOVICH, v. SKEEN.

No. 10583.

Supreme Court of Appeals of West Virginia.

Submitted May 19, 1953.

Decided June 9, 1953.

Syllabus by the Court.

1. A writ of habeas corpus lies to effect the release from imprisonment of an accused who is confined by reason of conviction under a void indictment.

2. A writ of habeas corpus may not be substituted for a writ of error, and may not be used to obtain a release from confinement unless the sentence of imprisonment under which a person is confined is void in whole or in part.

3. Under Section 12, Article 2, Chapter 28, Acts of the Legislature, 1939, amending and re-enacting Code, 61-2-12, an indictment which charges that the accused in and upon a named person 'an assault did feloniously make and her, [the named person] did then and there feloniously put in bodily fear, and * * *, then and there feloniously and violently did attempt to steal, take and carry away', certain personal property described in the indictment, not belonging to or in the custody of any bank, is an indictment based on the provision of the first sentence of Section 12, and effectively charges the accused with the offense of attempting to commit robbery, the penalty for which is confinement in the penitentiary for not less than ten years.

4. Under Section 12, Article 2, Chapter 28, Acts of the Legislature, 1939, amending and re-enacting Code, 61-2-12, making robbery, and the attempt to commit robbery, a crime, and prescribing the penalties therefor, the attempt to commit robbery is a crime in itself, and such attempt does not come within the provisions of Code, 61-11-8, which provides for lesser penalties in the case of an attempt to commit a criminal offense, where the attempt to commit and the commission of the crime are not inherent in the same statute.

5. Section 12, Article 2, Chapter 28, Acts of the Legislature, 1939, amending and re-enacting Code, 61-2-12, is not void as contravening the provision of Section 5, Article III, West Virginia Constitution, which provides that 'Penalties shall be proportioned to the character and degree of the offense.'

Fred Caplan, Clarksburg, for petitioner.

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

RILEY, Judge.

Petitioner, George K. Vascovich, invoked the original jurisdiction of this Court by filing his petition, praying for a writ of habeas corpus ad subjiciendum. This Court granted the writ prayed for on May 4, 1953, returnable on May 19, 1953, on which latter date the petitioner was brought before the Court, and the defendant Warden appeared by the Attorney General and filed his demurrer to the petition. The Court, having heretofore appointed counsel to represent the petitioner, the case was argued by petitioner's counsel and the Attorney General orally and on briefs.

At the November, 1949, term of the Criminal Court of Harrison County, the petitioner was indicted under Section 12, Article 2, Chapter 28, Acts of the Legislature, 1939, amending and re-enacting Code, 61-2-12, for the offense of attempted robbery. At that term of the criminal court petitioner entered a plea of guilty and was sentenced to life imprisonment in the penitentiary.

Code, 61-2-12, as amended, 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.

'If any person (a) by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management or possession of, any bank, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten nor more than twenty years; and if any person (b), in committing, or in attempting to commit, any offense defined in the preceding clause (a) of this paragraph, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten nor more than twenty-five years.'

The pertinent parts of the indictment to which the defendant pleaded guilty, and under which he was sentenced to life imprisonment, charge that the petitioner 'on the ___ day of July, 1949, in the said County of Harrison, 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, and certain bullion, money, bank notes, bank bills and silver coins, lawful currency and current money of the United States of America, * * * said money and property not belonging to nor in the care, custody, control and possession of any bank, then and there feloniously and violently did attempt to steal, take and carry away; * * *.'

Though the writ of habeas corpus lies to effect release from imprisonment of an accused who is confined by reason of a conviction under a void indictment, Scott v. Harshbarger, Sheriff, 116 W.Va. 300, 180 S.E. 187, the writ may not be substituted for a writ of error, and may not be used to obtain a release from confinement, unless the sentence of imprisonment under which a person is confined is void in whole or in part. Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234; State ex rel. Nutter v. Mace, 130 W.Va. 676, 44 S.E.2d 851; Ex parte Farmer, 123 W.Va. 304, 14 S.E.2d 910.

Only two issues are involved herein, both of which relate to the jurisdiction of the Criminal Court of Harrison County: (1) Is the indictment under which petitioner was sentenced sufficient to sustain the conviction; and (2) is Section 12, Article 2, Chapter 28, Acts of the Legislature, 1939, amending and re-enacting Code, 61-2-12, unconstitutional as violative of Article III, Section 5, West Virginia Constitution, which provides: 'Penalties shall be proportioned to the character and degree of the offense'?

Both the Attorney General and counsel for ...