Tyson v. Hening

• Decision Date: 15 June 1964
• Docket Number: No. 5809,5809
• Citation: 136 S.E.2d 832,205 Va. 389
• Parties: ROY DAVID TYSON v. EDMUND W. HENING, JR., ET AL., ETC. Record
• Court: Virginia Supreme Court

Page 832

136 S.E.2d 832

205 Va. 389

ROY DAVID TYSON v. EDMUND W. HENING, JR., ET AL., ETC.

Record No. 5809.

Supreme Court of Appeals of Virginia

June 15, 1964.

E. Ballard Baker, for the petitioner.

Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the respondents.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Under Code, § 53-296 ¹, petitioner, Roy David Tyson, a convict in the Virginia State Penitentiary, was on December 14, 1960, tried and sentenced to confinement in the penitentiary for a term of one year by the Circuit Court of the City of Richmond upon an information which alleged that he had been convicted of felonies on three occasions and had been received in the penitentiary on two occasions. At the recidivist hearing he was not afforded the assistance of counsel and under the decision of the Supreme Court of the United States in Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.ed.2d 442, the additional sentence imposed was invalid.

On April 10, 1963, the Commonwealth sought to re-try Tyson on the information. Competent counsel was appointed to represent petitioner but when his case was called he refused to plead to the allegations in the information. The case was continued until April 24. Present counsel was then appointed to represent him in place of the former who, for reasons not disclosed by the record, retired from the case, and petitioner again refused to plead. There were several additional continuances, the last one being a general continuance because of the institution of this proceeding. There is also pending in the Circuit Court of the City of Richmond a petition for a writ of habeas corpus filed by Tyson.

Here, petitioner seeks to prohibit the respondents from proceeding with his recidivist trial on the ground that: '(1) The Circuit Court of the City of Richmond has no jurisdiction because he did not commit any crime in the City of Richmond. (2) The charge of recidivism should have been made at the time of his conviction in Fredericksburg on July 22, 1960. (3) He is entitled to a jury of 12 persons if tried as a recidivist, rather than the jury of five which is customarily provided in trials under section 53-296. (4) Any retrial of him as a recidivist violates the constitutional provisions against double jeopardy.' His basic argument is that § 53-296 charges him with a criminal offense and, therefore, he is entitled to the guarantees afforded by § 8 of the Constitution of Virginia. It reads in part as follows:

' § 8. Concerning criminal prosecutions generally. -- That in criminal prosections a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers; nor be compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same offense.

'Laws may be enacted providing for the trial of offenses not felonious by a justice of the peace or other inferior tribunal without a jury, preserving the right of the accused to an appeal to and a trial by jury in some court of record having original criminal jurisdiction. Laws may also provide for juries consisting of less than twelve, but not less than five, for the trial of offenses not felonious, and may classify such cases, and prescribe the number of jurors for each class.'

The petitioner argues that recidivist proceedings are criminal and more particularly felony proceedings because the minimum sentence which may be imposed is one year in the penitentiary; that the crime for which he was received in the penitentiary the second time was committed in Fredericksburg, Virginia, which entitled him to be tried by a jury of that vicinage; that since he was tried and convicted there the recidivist trial would place him in double jeopardy; that a jury of five is always impaneled at recidivist proceedings but since such is a felony trial he is entitled to be tried by a jury consisting of twelve members, and that since he was first charged as being a recidivist in 1960 and has not been validly tried as such he has been denied a speedy trial.

The policy of this State has long been to visit with increased punishment habitual offenders who have been convicted of and sentenced to the penitentiary for felonies. Rand v. Commonwealth, 9 Gratt. (50 Va.) 738, 740-41; Wright v. Commonwealth, 109 Va. 847, 851, 65 S.E. 19. Virginia's initial habitual criminal statute was enacted in 1796. 2 Stat. at Large [New Series], 1796-1802, Sec. 24, p. 9. These statutes have been amended, modified and enlarged over the years but their paramount purpose has always been to protect society against habitual criminals and to impose further punishment upon that particular class of offenders. Wesley v. Commonwealth, 190 Va. 268, 276, 56 S.E.2d 362. Additional punishment is imposed on a recidivist because the former punishment proved to be inefficacious in accomplishing the work of reform for which it was designed. Rand v. Commonwealth, supra, 9 Gratt. at p. 745.

The purpose of § 53-296 and prior recidivist statutes is to discourage repetition of criminal acts by individuals against the peace and dignity of the Commonwealth. 'It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one.' Sims v. Cunningham, 203 Va. 347, 353, 124 S.E.2d 221.

In order to sentence an accused as a second offender it must be shown that he had been convicted and sentenced to the penitentiary and thereafter committed a second penitentiary offense and had been sentenced and received in the penitentiary therefor. Upon his entry into the penitentiary under this second conviction, he meets all the intended requisites of § 53-296. He has, in sequence, committed two separate crimes for which he has been convicted and sentenced to the penitentiary. Wesley v. Commonwealth, supra, 190 Va. at p. 276.

Prior to 1919, in order to impose additional punishment on an habitual criminal the former convictions could be alleged in the subsequent indictment and then proven at the trial on that indictment. If this was not done information could be filed in the Circuit Court of the City of Richmond. Petitioner contends that since the indictment on which he was convicted in Fredericksburg on July 22, 1960, did not allege that he was a recidivist he cannot now be tried as such. This practice was abandoned in 1919 when the Code was revised and the sole jurisdiction to impose additional punishment on an habitual criminal was vested in the Circuit Court of the City of Richmond. (§ 5054, Code 1919) The change was made to preclude inquiry regarding prior convictions at the subsequent felony trial for the protection of the accused so that he would not be prejudiced by evidence of former convictions. See McCallister v. Commonwealth, 157 Va. 844, 847, 161 S.E. 67.

The contention that the Circuit Court of the City of Richmond was without jurisdiction to try petitioner because he committed no crime in the city of Richmond is without merit. As previously stated § 53-296 (formerly § 5054,supra) confers exclusive jurisdiction on that court to impose additional punishment on recidivists. Furthermore, a charge of a prior conviction does not constitute a charge or allegation of the crime for which the accused has been tried. It is solely an allegation of his status, which, if supported by the evidence, determines the extent of the punishment to be imposed. It bears no relation to the offense other than determination of the sentence to be imposed. See State v. Lawson, 125 W.Va. 1, 3, 22 S.E.2d 643, 644. The essential fact necessary to the imposition of additional punishment for habitual criminals is their receipt at the penitentiary and such receipt therein vests jurisdiction in the Circuit Court of the City of Richmond.

The remaining contentions of petitioner turn upon whether a recidivist proceeding is a criminal prosecution, which would, if true, afford him the guarantees provided by § 8 of the Constitution of Virginia, i.e., trial by jury of twelve, freedom from double jeopardy and a speedy trial.

In King v. Lynn, 90 Va. 345, 18 S.E. 439, the accused challenged by way of habeas corpus a five year additional penitentiary confinement imposed by the Circuit Court of the City of Richmond under the then existing habitual criminal statutes. His entire argument was based upon the assumption that he was in the same position as one charged with a crime and therefore presumed innocent until proven guilty. He contended that he was entitled to those safeguards and formalities which the law requires in criminal prosecutions. In denying the writ we held that recidivist proceedings were not analogous to criminal prosecutions, and that the sole issue at a recidivist trial 'is whether the prisoner is the person who was convicted' in the alleged prior trials.

The opinion states: 'By the information he is notified of the records of the several convictions alleged against him, and is charged with being the person convicted in each case; he is allowed to answer and of course to offer any evidence he may have to disprove the fact; and the fact is tried by a jury. This seems to us all that is required by justice or the circumstances of the case.' 90 Va. at p. 347.

Petitioner concedes that his position is substantially the same as that raised by the accused and rejected by this court in the King case. He argues that the law has been changed by Chewning v. Cunningham, supra.

The Chewning case has undoubtedy changed our law but only to the extent that counsel must be appointed to represent indigent prisoners being tried as recidivists. The opinion expressly...